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EXHIBIT 1.1
1,500,000 SHARES*
XXXXXX GEOPHYSICAL COMPANY
COMMON STOCK
____________________
UNDERWRITING AGREEMENT
St. Petersburg, Florida
November , 1997
Xxxxxxx Xxxxx & Associates, Inc.
Principal Financial Securities, Inc.
As Representatives of the Several Underwriters
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Xxxxxx Geophysical Company, a Texas corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
an aggregate of 1,000,000 shares of common stock, $.33 1/3 par value per share
(the "Common Stock"), of the Company, to the several underwriters named in
Schedule I hereto (the "Underwriters"), and X. Xxxxxx Xxxxxx (the "Selling
Shareholder") proposes, subject to the terms and conditions stated herein, to
sell to the Underwriters an aggregate of 500,000 shares of the Common Stock
(the aggregate of such 1,500,000 shares to be sold by the Company and the
Selling Shareholder hereinafter referred to as the "Firm Shares"). In
addition, the Company has agreed to sell to the Underwriters, upon the terms
and conditions set forth herein, up to an additional 225,000 shares (the
"Additional Shares") of the Common Stock to cover over-allotments by the
Underwriters, if any. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares."
The Company and the Selling Shareholder, acting severally and jointly,
wish to confirm as follows their agreement with you and the other several
Underwriters, on whose behalf you are
__________________________________
* Plus an additional 225,000 shares subject to the Underwriters
over-allotment option.
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acting, in connection with the several purchases of the Shares from the Company
and the Selling Shareholder.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-1 (File No.
333-38393), including a prospectus subject to completion, relating to the
Shares. Such registration statement, as amended at the time when it becomes
effective and as thereafter amended by post-effective amendment, is referred to
in this Agreement as the "Registration Statement." The prospectus in the form
included in the Registration Statement (including any prospectus subject to
completion meeting the requirements of Rule 434(b) under the Act provided by
the Company with any term sheet meeting the requirements of such Rule 434(b) as
the prospectus provided to meet the requirements of Section 10(a) of the Act),
or, if the prospectus included in the Registration Statement omits information
in reliance upon Rule 430A under the Act and such information is included in a
prospectus filed with the Commission pursuant to Rule 424(b) under the Act or
as part of a post-effective amendment to the Registration Statement after the
Registration Statement becomes effective, the prospectus as so filed, is
referred to in this Agreement as the "Prospectus." The prospectus subject to
completion in the form included in the Registration Statement at the time of
the initial filing of such Registration Statement with the Commission and as
such prospectus is amended from time to time until the date of the Prospectus,
is referred to in this Agreement as the "Prepricing Prospectus."
2. AGREEMENTS TO SELL AND PURCHASE. The Company and the Selling
Shareholder hereby agree, severally and not jointly, to sell the Firm Shares to
the Underwriters and, upon the basis of the representations, warranties and
agreements of the Company and the Selling Shareholder herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company and the Selling
Shareholder at a purchase price of $____ per Share (the "purchase price per
Share"), the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number of Firm Shares as adjusted
pursuant to Section 11 hereof).
The Company hereby also agrees to sell to the Underwriters, and upon
the basis of the representations, warranties and agreements of the Company and
the Selling Shareholder herein contained and subject to all the terms and
conditions set forth herein, the Underwriters shall have the right for 30 days
from the date of the Prospectus to purchase from the Company up to 225,000
Additional Shares at the purchase price per Share for the Firm Shares. The
Additional Shares may be purchased solely for the purpose of covering
over-allotments, if any, made in connection with the offering of the Firm
Shares. If any Additional Shares are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase the number of Additional Shares
(subject to such adjustments as you may determine to avoid fractional shares)
which bears the same proportion to the total number of Additional Shares to be
purchased by the Underwriters as the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto (or such number of Firm
Shares as adjusted pursuant to Section 11 hereof) bears to the total number of
Firm Shares.
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3. TERMS OF PUBLIC OFFERING. The Company and the Selling
Shareholder have been advised by you that the Underwriters propose severally,
and not jointly, to make a public offering of their respective portions of the
Shares as soon after the Registration Statement and this Agreement have become
effective as in your judgment is advisable and initially to offer the Shares
upon the terms set forth in the Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriters of the Firm Shares and payment therefor shall be made at the
offices of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx, at 10:00 a.m., St. Petersburg, Florida time, on November
__, 1997 (the "Closing Date"). The place of closing for the Firm Shares and
the Closing Date may be varied by agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the offices of Xxxxxxx
Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx, at
10:00 a.m., St. Petersburg, Florida time, on such date or dates (the
"Additional Closing Date") (which may be the same as the Closing Date but shall
in no event be earlier than the Closing Date nor earlier than three nor later
than ten business days after the giving of the notice hereinafter referred to)
as shall be specified in a written notice from you on behalf of the
Underwriters to the Company of the Underwriters' determination to purchase a
number, specified in such notice, of Additional Shares. Such notice may be
given to the Company by you at any time within 30 days after the date of the
Prospectus. The place of closing for the Additional Shares and the Additional
Closing Date may be varied by agreement among you and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 1:00 p.m., St. Petersburg, Florida time, not
later than the second full business day preceding the Closing Date or the
Additional Closing Date, as the case may be. Such certificates shall be made
available to you in St. Petersburg, Florida for inspection and packaging not
later than 9:30 a.m., St. Petersburg, Florida time, on the business day
immediately preceding the Closing Date or the Additional Closing Date, as the
case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Additional Closing Date, as the case may be, against payment of the
purchase price therefor by certified or official bank check or checks payable
in New York Clearing House (next day) funds.
5. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company
covenants and agrees with the several Underwriters as follows:
a. The Company will use its best efforts to cause the
Registration Statement to become effective and will advise you
promptly and, if requested by you, will confirm such advice in writing
(i) when the Registration Statement has become effective and when any
post-effective amendment thereto becomes effective, (ii) if Rule 430A
under the Act is employed, when the Prospectus has been timely filed
pursuant to Rule 424(b) under the Act, (iii) of any request by the
Commission for amendments or supplements to the Registration
Statement, any Prepricing Prospectus or the Prospectus or for
additional
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information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction or the initiation of any proceeding for such purposes and
(v) within the period of time referred to in the first sentence of
Section 5(e) below, of any change in the Company's condition
(financial or other), business, prospects, properties, net worth or
results of operations, or of any event that comes to the attention of
the Company that makes any statement made in the Registration
Statement or the Prospectus (as then amended or supplemented) untrue
in any material respect or that requires the making of any additions
thereto or changes therein in order to make the statements therein not
misleading in any material respect, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply
with the Act or any other law. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain the
withdrawal of such order at the earliest possible time.
b. The Company will furnish to you, without charge, two
signed duplicate originals of the Registration Statement as originally
filed with the Commission and of each amendment thereto, including
financial statements and all exhibits thereto, and will also furnish
to you, without charge, such number of conformed copies of the
Registration Statement as originally filed and of each amendment
thereto as you may reasonably request.
c. The Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the
Prospectus of which you shall not previously have been advised (with a
reasonable opportunity to review such amendment or supplement) or to
which you have reasonably objected after being so advised.
d. Prior to the execution and delivery of this
Agreement, the Company has delivered or will deliver to you, without
charge, in such quantities as you have requested or may hereafter
reasonably request, copies of each form of the Prepricing Prospectus.
The Company consents to the use, in accordance with the provisions of
the Act and with the securities or Blue Sky laws of the jurisdictions
in which the Shares are offered by the several Underwriters and by
dealers, prior to the date of the Prospectus, of each Prepricing
Prospectus so furnished by the Company.
e. As soon after the execution and delivery of this
Agreement as is practicable and thereafter from time to time for such
period as in the reasonable opinion of counsel for the Underwriters a
prospectus is required by the Act to be delivered in connection with
sales by any Underwriter or a dealer, and for so long a period as you
may request for the distribution of the Shares, the Company will
deliver to each Underwriter, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as they may
reasonably request. The Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by the several
Underwriters and by all dealers to whom Shares may be sold, both in
connection
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with the offering and sale of the Shares and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by any Underwriter or dealer. If at any time
during the nine-month period referred to in Section 10(a)(3) of the
Act any event shall occur that in the judgment of the Company or in
the opinion of counsel for the Underwriters is required to be set
forth in the Prospectus (as then amended or supplemented) or should be
set forth therein in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it is necessary to supplement or amend the Prospectus to comply
with the Act or any other law, the Company will forthwith prepare and,
subject to Sections 5(a) and 5(c) hereof, file with the Commission and
use its best efforts to cause to become effective as promptly as
possible an appropriate supplement or amendment thereto, and will
furnish to each Underwriter who has previously requested Prospectuses,
without charge, a reasonable number of copies thereof.
f. The Company will cooperate with you and counsel for
the Underwriters in connection with the registration or qualification
of the Shares for offering and sale by the several Underwriters and by
dealers under the securities or Blue Sky laws of such jurisdictions as
you may reasonably designate and will file such consents to service of
process or other documents as may be reasonably necessary in order to
effect such registration or qualification; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to service of process in suits, other than
those arising out of the offering or sale of the Shares, in any
jurisdiction where it is not now so subject.
g. The Company will make generally available to its
security holders a consolidated earnings statement (in form complying
with the provisions of Rule 158), which need not be audited, covering
a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter,
as soon as practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of
Section 11(a) of the Act.
h. During the period ending five years from the date
hereof, the Company will furnish to you and, upon your request, to
each of the other Underwriters, (i) as soon as available, a copy of
each proxy statement, quarterly or annual report or other report of
the Company mailed to shareholders or filed with the Commission, the
National Association of Securities Dealers, Inc. ("NASD") or any
securities exchange or quotation system on which any class of
securities of the Company is listed or traded and (ii) from time to
time such other information concerning the Company as you may
reasonably request.
i. If this Agreement shall terminate or shall be
terminated after execution pursuant to any provision hereof (except
pursuant to a termination under Section 11 hereof) or if this
Agreement shall be terminated by the Underwriters because of any
inability, failure or refusal on the part of the Company or the
Selling Shareholder to perform any agreement herein or to comply with
any of the terms or provisions hereof, the Company agrees to reimburse
you and the other Underwriters for all out-of-pocket
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expenses (including travel expenses and fees and expenses of counsel
for the Underwriters) incurred by you in connection herewith, such
fees and expenses not to exceed $50,000.
j. The Company will apply the net proceeds from the sale
of the Shares to be sold by it hereunder for the purposes set forth
under "Use of Proceeds" in the Prospectus.
k. If Rule 430A under the Act is employed, the Company
will timely file the Prospectus pursuant to Rule 424(b) under the Act.
l. For a period of 120 days after commencement of the
public offering of the Shares by the Underwriters, without the prior
written consent of Xxxxxxx Xxxxx & Associates, Inc., the Company will
not sell, contract to sell or otherwise dispose of any Common Stock or
rights to purchase Common Stock, except to the Underwriters pursuant
to this Agreement; provided, however, that the Company may issue to
participants in its 1991 Incentive Stock Option Plan, as currently in
effect, shares of Common Stock upon the exercise of currently
outstanding options that are or that become exercisable during such
120-day period and may grant additional options under the 1991 Stock
Incentive Plan, provided that without the prior written consent of
Xxxxxxx Xxxxx & Associates, Inc., such additional options shall not be
exercisable during such 120-day period.
m. Prior to the Closing Date or the Additional Closing
Date, as the case may be, the Company will furnish to you, as promptly
as possible, copies of any unaudited interim financial statements of
the Company for any period subsequent to the periods covered by the
financial statements appearing in the Prospectus.
n. The Company will comply with all provisions of any
undertakings contained in the Registration Statement.
o. The Company will not at any time, directly or
indirectly take any action designed, or which might reasonably be
expected to cause or result in, or which will constitute,
stabilization or manipulation of the price of the shares of Common
Stock to facilitate the sale or resale of any of the Shares.
p. The Company will use its best efforts to qualify or
register its Common Stock for sale in non-issuer transactions under
(or obtain exemptions from the application of) the Blue Sky laws of
each state where necessary to permit market making transactions and
secondary trading, and will comply with such Blue Sky laws and will
continue such qualifications, registrations and exemptions in effect
for a period of five years after the date hereof.
q. The Company will timely file within the National
Association of Securities Dealers Automated Quotation ("Nasdaq")
National Market all documents and notices required by the Nasdaq
National Market of companies that have issued securities that are
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traded in the over-the-counter market and quotations for which are
reported by the Nasdaq National Market.
r. The Company will file with the Commission such
reports on Form SR as may be required pursuant to Rule 463 under the
Act.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter on the date hereof, and shall be
deemed to represent and warrant to each Underwriter on the Closing Date and the
Additional Closing Date, that:
a. Each Prepricing Prospectus included as part of the
Registration Statement as originally filed or as part of any amendment
or supplement thereto, or filed pursuant to Rule 424(a) under the Act,
complied when so filed in all material respects with the provisions of
the Act, except that this representation and warranty does not apply
to statements in or omissions from such Prepricing Prospectus (or any
amendment or supplement thereto) made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by or on behalf of any Underwriter through you
expressly for use therein. The Commission has not issued any order
preventing or suspending the use of any Prepricing Prospectus. Any
term sheet and prospectus subject to completion provided by the
Company to the Underwriters for use in connection with the offering
and sale of the Shares pursuant to Rule 434 under the Act together are
not materially different from the last Prepricing Prospectus included
as part of the Registration Statement at the time of its effectiveness
(exclusive of any information deemed to be a part thereof by virtue of
Rule 434(d) under the Act).
b. The Registration Statement, in the form in which it
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective, and the
Prospectus, and any supplement or amendment thereto when filed with
the Commission under Rule 424(b) under the Act, will comply in all
material respects with the provisions of the Act and will not at any
such times contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, except that this
representation and warranty does not apply to statements in or
omissions from the Registration Statement or the Prospectus (or any
amendment or supplement thereto) made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by or on behalf of any Underwriter through you
expressly for use therein.
c. The capitalization of the Company is and will be as
set forth in the Prospectus as of the date set forth therein. All the
outstanding shares of Common Stock of the Company (including the
Shares owned by the Selling Shareholder) have been, and as of the
Closing Date will be, duly authorized and validly issued, are fully
paid and nonassessable and are free of any preemptive or similar
rights; the Shares to be issued and sold to the Underwriters by the
Company hereunder have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights; the
capital stock of the
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Company conforms to the description thereof in the Registration
Statement and the Prospectus (or any amendment or supplement thereto);
and the delivery of certificates for the Shares pursuant to the terms
of this Agreement and payment for the Shares will pass valid title to
the Shares, free and clear of any claim, encumbrance or defect in
title to the several Underwriters purchasing the Shares in good faith
and without notice of any lien, claim or encumbrance. The
certificates for the Shares are or will be in valid and sufficient
form.
d. The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of Texas
with full power and authority to own, lease and operate its properties
and to conduct its business as presently conducted and as described in
the Registration Statement and the Prospectus (and any amendment or
supplement thereto), and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
to so register or qualify does not have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company. The Company does not have any
Subsidiaries.
e. There are no legal or governmental proceedings
pending or, to the best knowledge of the Company, threatened, against
the Company, or to which the Company, or to which any of its
respective properties, is subject, that are required to be described
in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) but are not described as required. Except as
described in the Prospectus, there is no action, suit, inquiry,
proceeding, or investigation by or before any court or governmental or
other regulatory or administrative agency or commission pending or, to
the best knowledge of the Company, threatened, against or involving
the Company, which might individually or in the aggregate prevent or
adversely affect the transactions contemplated by this Agreement or
result in a material adverse change in the condition (financial or
otherwise), properties, business, results of operations or prospects
of the Company, nor is there any basis for any such action, suit,
inquiry, proceeding, or investigation. There are no agreements,
contracts, indentures, leases or other instruments that are required
to be described in the Registration Statement or the Prospectus (or
any amendment or supplement thereto) or to be filed as an exhibit to
the Registration Statement that are not described or filed as required
by the Act. All such contracts to which the Company is a party have
been duly authorized, executed and delivered by the Company,
constitute valid and binding agreements of the Company and are
enforceable against the Company in accordance with the terms thereof,
and neither the Company nor to the best of the Company's knowledge,
any other party, is in breach of or default under any of such
contracts.
f. The Company is not in violation of its certificate or
articles of incorporation or bylaws, or other organizational
documents, or of any law, ordinance, administrative or governmental
rule or regulation applicable to the Company or of any decree of any
court or governmental agency or body having jurisdiction over the
Company, or in default in
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any material respect in the performance of any obligation, agreement
or condition contained in (i) any bond, debenture, note or any other
evidence of indebtedness, or (ii) any material agreement, indenture,
lease or other instrument to which the Company is a party or by which
it or any of its properties may be bound; and there does not exist any
state of facts which constitutes an event of default on the part of
the Company as defined in such documents or which, with notice or
lapse of time or both, would constitute such an event of default.
g. The execution and delivery of this Agreement and the
performance by the Company of its obligations under this Agreement
have been duly and validly authorized by the Company, and this
Agreement has been duly executed and delivered by the Company and
constitutes the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms.
h. Neither the issuance and sale of the Shares, the
execution, delivery or performance of this Agreement by the Company
nor the consummation by the Company of the transactions contemplated
hereby (i) requires any consent, approval, authorization or other
order of or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official
(except such as may be required for the registration of the Shares
under the Act and compliance with the securities or Blue Sky laws of
various jurisdictions, all of which will be, or have been, effected in
accordance with this Agreement) or conflicts with or will conflict
with or constitutes or will constitute a breach of, or a default
under, the certificate or articles of incorporation or bylaws, or
other organizational documents, of the Company or (ii) conflicts or
will conflict with or constitutes a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the Company
is a party or by which it or any of its properties may be bound, or
violates any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Company or any of its
properties, or results in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to the terms of any agreement or instrument to which it is a
party or by which it may be bound or to which any of its property or
assets is subject.
i. Except as described in the Prospectus, the Company
does not have outstanding and at the Closing Date (and the Additional
Closing Date, if applicable) will not have outstanding any options to
purchase, or any warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to issue
or sell, any shares of Common Stock or any such options, warrants or
convertible securities or obligations. No holder of securities of the
Company has rights to the registration of any securities of the
Company because of the filing of the Registration Statement that have
not been satisfied or heretofore waived in writing.
j. KPMG Peat Marwick LLP, the certified public
accountants who have certified the financial statements filed as part
of the Registration Statement and the Prospectus (or any amendment or
supplement thereto) are independent public accountants as required by
the Act.
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k. The financial statements, together with related
schedules and notes, included in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly
the financial position, results of operations and cash flows of the
Company on the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein;
and the other financial and statistical information and data set forth
in the Registration Statement and Prospectus (and any amendment or
supplement thereto) is accurately presented and prepared on a basis
consistent with such financial statements and the books and records of
the Company. All pro forma financial data filed with the Commission
as a part of the Registration Statement and Prospectus have been
prepared to give effect to certain assumptions made on a reasonable
basis that are fairly described in the Prospectus and the
Registration Statement, and all pro forma adjustments have been
properly applied on the basis described therein. No other financial
statements or schedules are required to be included in the
Registration Statement.
l. Except as disclosed in the Registration Statement and
the Prospectus (or any amendment or supplement thereto), subsequent to
the respective dates as of which such information is given in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), (i) the Company has not incurred any material
liabilities or obligations, indirect, direct or contingent, or other
transaction which is not in the ordinary course of business or which
could result in a material reduction in the future earnings of the
Company; (ii) the Company has not sustained any material loss or
interference with its business or properties from fire, flood,
windstorm, accident or other calamity, whether or not covered by
insurance; (iii) the Company has not paid or declared any dividends or
other distributions with respect to its capital stock and the Company
is not in default in the payment of principal or interest on any
outstanding debt obligations; (iv) there has not been any change in the
capital stock (other than upon the sale of the Shares hereunder and
upon the exercise of options described in the Prospectus) or
indebtedness material to the Company (other than in the ordinary course
of business); and (v) there has not been any material adverse change,
or any development involving or which may reasonably be expected to
involve a potential future material adverse change, in the condition
(financial or otherwise), business, properties, result of operations or
prospects of the Company.
m. The Company has good and marketable title to all
property (real and personal) described in the Prospectus as being
owned by it, free and clear of all liens, claims, security interests
or other encumbrances except (i) such as are described in the
financial statements included in, or elsewhere in, the Prospectus or
(ii) such as are not materially burdensome and do not interfere in any
material respect with the use of the property or the conduct of the
business of the Company taken as a whole. The property (real and
personal) held under lease by the Company is held by it under valid,
subsisting and enforceable leases with only such exceptions as in the
aggregate are not materially
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burdensome and do not interfere in any material respect with the
conduct of the business of the Company taken as a whole.
n. The Company has not distributed and will not
distribute any offering material in connection with the offering and
sale of the Shares other than the Prepricing Prospectus, the
Prospectus, or other offering material, if any, as permitted by the
Act and the rules and regulations enacted thereunder (the "Rules and
Regulations.").
o. The Company has not taken, directly or indirectly,
any action which constituted, or any action designed, or which might
reasonably be expected to cause or result in or constitute, under the
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
p. The Company is not an "investment company," an
"affiliated person" of, or "promoter" or "principal underwriter" for
an investment company within the meaning of the Investment Company Act
of 1940, as amended.
q. The Company has all permits, licenses, franchises,
approvals, easements, consents and authorizations of governmental or
regulatory authorities (hereinafter "permit" or "permits") as are
necessary to own its properties and to conduct its business in the
manner described in the Prospectus, subject to such qualifications as
may be set forth in the Prospectus, except where the failure to have
obtained any such permit has not and will not have a material adverse
effect upon the condition (financial or other), properties, business,
results of operations or prospects of the Company; the Company has
fulfilled and performed all of its material obligations with respect
to each such permit and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination of any
such permit or result in any other material impairment of the rights
of the holder of any such permit, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as
described in the Prospectus, such permits contain no restrictions that
are materially burdensome to the Company.
r. The Company has complied and will comply in all
material respects with wage and hour determinations issued by the U.S.
Department of Labor under the Service Contract Act of 1965 and the
Fair Labor Standards Act in paying its employees' salaries, fringe
benefits, and other compensation for the performance of work or other
duties in connection with contracts with the U.S. government. The
Company has complied and will comply in all material respects with the
terms of all certifications and representations made to the U.S.
government in connection with the submission of any bid or proposal or
any contract. The Company has complied and will comply in all
material respects with its obligations under its agreements and
contracts with the U.S. government and agencies thereof.
s. The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary
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to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorizations; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
t. The Company has not, directly or indirectly, at any
time during the past five years (i) made any unlawful contribution to
any candidate for political office, or failed to disclose fully any
contribution in violation of law, or (ii) made any payment to any
federal, state or foreign governmental official, or other person
charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof or applicable foreign jurisdictions.
u. The Company has obtained all required permits,
licenses, and other authorizations, if any, which are required under
federal, state, local and foreign statutes, ordinances and other laws
relating to pollution or protection of the environment, including laws
relating to emissions, discharges, releases, or threatened releases of
pollutants, contaminants, chemicals, or industrial, hazardous, or
toxic materials or wastes into the environment ("Environmental Laws").
The Company is in material compliance with all terms and conditions of
all required permits, licenses, and authorizations, and are also in
material compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations,
schedules, and timetables contained in the Environmental Laws. There
is no pending or, to the best knowledge of the Company, threatened
civil or criminal litigation, notice of violation, or administrative
proceeding relating in any way to the Environmental Laws involving the
Company. There have not been and there are not any past, present, or
foreseeable future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which may interfere with or
prevent continued compliance, or which may give rise to any common law
or legal liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study or investigation under the
Environmental Laws.
v. The Company owns and has full right, title and
interest in and to, or has valid licenses to use, all copyrights,
patents, inventions, formulas, processes (secret or otherwise),
trademarks and trade names necessary or material to its business as
presently conducted, and the Company has created no lien or
encumbrance on, or granted any right or license with respect to, any
such copyright, patent, trademark, trade name, application, process,
invention or formula or other intangible property right; there is no
claim pending against the Company with respect to any copyright,
patent, trademark, trade name, application, process, invention or
formula or other intangible property right and the Company has not
received notice that any copyright, patent, trademark, trade name,
application, process, invention or formula or other intangible
property right which it uses or has used in the conduct of its
business infringes upon or conflicts with the rights of any third
party. To the best knowledge of the Company, there is no infringement
on the intellectual property rights of the Company by others, and none
of the activities engaged in by the Company infringes or conflicts
with the intellectual property rights of others, in
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a manner that could adversely affect the condition (financial or
other), business, properties, results of operations or prospects of
the Company.
w. All offers and sales of the Company's capital stock
prior to the date hereof were made in compliance with the Act and all
other applicable state and federal laws or regulations.
x. The Shares have been duly authorized for trading on
the Nasdaq National Market, and with respect to the Shares being
offered by the Company, subject to notice of issuance.
y. All federal, state and local tax returns required to
be filed by or on behalf of the Company with respect to all periods
ended prior to the date of this Agreement have been filed (or are the
subject of valid extension) with the appropriate federal, state and
local authorities and all such tax returns, as filed, are accurate in
all material respects. All federal, state and local taxes (including
estimated tax payments) required to be shown on all such tax returns
or claimed to be due from or with respect to the business of the
Company have been paid or reflected as a liability on the financial
statements of the Company for appropriate periods, except for those
taxes or claims therefor which are being contested by the Company in
good faith and for which appropriate reserves are reflected in the
Company's financial statements. All deficiencies asserted as a result
of any federal, state or local tax audits have been paid or finally
settled and no issue has been raised in any such audit which, by
application of the same or similar principles, reasonably could be
expected to result in a proposed deficiency for any other period not
so audited. No state of facts exists or has existed which would
constitute grounds for the assessment of any tax liability with
respect to the periods which have not been audited by appropriate
federal, state or local authorities. There are no outstanding
agreements or waivers extending the statutory period of limitation
applicable to any federal, state or local tax return for any period.
On the Closing Date, and Additional Closing Date, if any, all stock
transfer and other taxes which are required to be paid in connection
with the sale of the shares to be sold by the Company to the
Underwriters will have been fully paid by the Company and all laws
imposing such taxes will have been complied with.
z. Except as set forth in the Prospectus, there are no
transactions with affiliates, as defined in Rule 405 promulgated under
the Act, which are required by the Act and the applicable Rules and
Regulations thereunder to be disclosed in the Registration Statement.
aa. The Company has procured and provided to Xxxxxxx
Xxxxx & Associates, Inc. the written agreement of the Selling
Shareholder, and each of the officers and directors of the Company who
owns shares of Common Stock or options to acquire shares of Common
Stock of the Company as set forth in the Prospectus not to sell, or
otherwise dispose of or transfer, directly or indirectly, any shares
of Common Stock owned or controlled, or hereafter acquired, by such
persons, or any rights to purchase any of such shares of Common Stock,
for a period of 120 days after the commencement of the public offering
of the Shares by the Underwriters without the prior written consent of
Xxxxxxx Xxxxx & Associates, Inc.
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ab. The Company (i) does not conduct business or have
affiliates which conduct business in or with Cuba, (ii) does not plan
to commence doing business in or with Cuba after the effective date of
the Registration Statement or (iii) is not required by Florida law to
report a material change in information previously reported to the
State of Florida regarding business conducted in or with Cuba.
ac. No officer, director or nominee for director of the
Company, and except as disclosed in writing to the NASD in connection
with the offering contemplated hereby, no beneficial owner of 5% or
more of the Company's outstanding Common Stock, has any direct or
indirect affiliation or association with any member of the NASD.
7. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDER.
The Selling Shareholder hereby represents and warrants to each Underwriter on
the date hereof (except as otherwise set forth herein), and shall be deemed to
represent and warrant to each Underwriter on the Closing Date and the
Additional Closing Date, that:
a. All consents, approvals, authorizations and orders
necessary for the execution and delivery by the Selling Shareholder of
this Agreement and the Custody Agreement (including the Power of
Attorney provided for in such Custody Agreement) referred to in the
last paragraph of this Section 7 (the "Custody Agreement"), and for the
sale and delivery of the Shares to be sold by the Selling Shareholder
hereunder, have been obtained; and the Selling Shareholder has full
right, power and authority to enter into this Agreement and the Custody
Agreement, and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Shareholder hereunder.
b. This Agreement and the Custody Agreement have been
duly authorized, executed and delivered by the Selling Shareholder and
this Agreement and the Custody Agreement constitute the valid and
binding agreements of the Selling Shareholder enforceable against the
Selling Shareholder in accordance with their respective terms, except
as may be limited by bankruptcy, insolvency, reorganization or other
laws of general application relating to or affecting enforcement of
creditors' rights generally or the availability of equitable remedies,
regardless of whether such enforcement is considered in a proceeding
in equity or at law; the performance of this Agreement and the Custody
Agreement and the consummation of the transactions contemplated
herein and therein will not result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, voting trust agreement, note
agreement, lease or other agreement or instrument to which the
Selling Shareholder is a party or by which the Selling Shareholder or
the Selling Shareholder's properties are bound, or under any law,
statute, order, rule or regulation of any court or governmental agency
or body applicable to the Selling Shareholder or the business or
property of the Selling Shareholder.
c. The Selling Shareholder has, and immediately prior to
the Closing Date (and the Additional Closing Date, if any) the Selling
Shareholder will have, good and marketable title to the Shares to be
sold by the Selling Shareholder hereunder, free and clear of all
liens, encumbrances, equities, shareholder agreements, voting trusts,
adverse claims or other claims of any nature whatsoever, and, upon
delivery of the Shares and payment therefor pursuant hereto, good and
marketable title to the Shares, free and clear of all liens,
encumbrances, equities,
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shareholder agreements, voting trusts, adverse claims or other claims
of any nature whatsoever (other than those arising by or through the
Underwriters), will pass to the several Underwriters.
d. The Selling Shareholder will not, for a period of 120
days after the commencement of the public offering of the Shares by
the Underwriters, directly or indirectly, sell, offer or contract to
sell, or otherwise dispose of or transfer any shares of Common Stock
or rights to purchase shares of Common Stock otherwise than hereunder
or with the prior written consent of Xxxxxxx Xxxxx & Associates, Inc.
e. The Selling Shareholder has not taken, and will not
take, directly or indirectly, any action designed to or which has
constituted nor which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares or otherwise.
f. No consent, approval, authorization or order of, or
any filing or declaration with, any court or governmental agency or
body is required for the consummation by the Selling Shareholder of
the transactions on his part contemplated herein or in the Custody
Agreement, except such as have been obtained under the Act and such as
may be required under state securities or Blue Sky laws or the by-laws
and rules of the NASD in connection with the purchase and distribution
by the Underwriters of the Shares to be sold by the Selling
Shareholder.
g. The Selling Shareholder is familiar with the
Registration Statement, the Prepricing Prospectus and the Prospectus
and has no knowledge of any material fact or condition not set forth
in the Registration Statement, the Prepricing Prospectus or the
Prospectus which has adversely affected, or may adversely affect, the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company, and the sale of
the Shares proposed to be sold by the Selling Shareholder is not
prompted by any such knowledge.
h. All information with respect to the Selling
Shareholder contained in the Registration Statement, the Prepricing
Prospectus and the Prospectus (as amended or supplemented, if the
Company shall have filed with the Commission any amendment or
supplement thereto) complied and will comply in all material respects
with all applicable provisions of the Act, contains and will contain
all statements required to be stated therein in accordance with the
Act, and does not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading.
i. To the best knowledge of such Selling Shareholder,
the representations and warranties of the Company contained in Section
6 hereof are true and correct.
j. Other than as permitted by the Act and the Rules and
Regulations, the Selling Shareholder has not distributed and will not
distribute any Prepricing Prospectus,
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the Prospectus or any other offering material in connection with the
offering and sale of the Shares.
k. On the Closing Date, and on the Additional Closing
Date, if any, all stock transfer and other taxes (other than income
taxes) which are required to be paid in connection with the sale and
transfer of the Shares to be sold by the Selling Shareholder to the
several Underwriters hereunder will have been fully paid for by the
Selling Shareholder and all laws imposing such taxes will have been
fully complied with.
In order to document the Underwriters' compliance with the reporting
and withholding provisions of the Tax Equity and Fiscal Responsibility Act of
1982 with respect to the transactions herein contemplated, the Selling
Shareholder agrees to deliver to you at least two days prior to the Closing a
properly completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
The Selling Shareholder represents and warrants that certificates in
negotiable form representing all of the Shares to be sold by the Selling
Shareholder hereunder have been placed in custody under a Custody Agreement, in
the form heretofore furnished to you, duly executed and delivered by the Selling
Shareholder to the Company, as the Custodian (the "Custodian"). The Selling
Shareholder specifically agrees that the Shares represented by the certificates
held in custody for the Selling Shareholder under the Custody Agreement are
subject to the interest of the Underwriters hereunder, and that the arrangements
made by the Selling Shareholder for such custody, including the Power of
Attorney provided for in the Custody Agreement, are to that extent irrevocable.
The Selling Shareholder specifically agrees that the obligations of the Selling
Shareholder hereunder or under the Custody Agreement shall not be terminated by
operation of law, whether by the death or incapacity of the Selling Shareholder,
or if the Selling Shareholder should die or become incapacitated or if any other
such event should occur before the delivery of the Shares hereunder,
certificates representing the Shares shall be delivered by or on behalf of the
Selling Shareholder in accordance with the terms and conditions of this
Agreement and the Custody Agreement, regardless of whether or not the Custodian
shall have received notice of such death, incapacity or other event.
8. EXPENSES. Whether or not the transactions contemplated hereby
are consummated or this Agreement becomes effective or is terminated, the
Company will pay or cause to be paid
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the following: (i) the fees, disbursements and expenses of counsel to the
Company and the Selling Shareholder and the Company's accountants in connection
with the registration of the Shares under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof and of any Prepricing Prospectus to
the Underwriters and dealers; (ii) the printing and delivery (including,
without limitation, postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, the Prospectus, each
Prepricing Prospectus, the Blue Sky memoranda, the Custody Agreement, the
Agreement Among Underwriters, this Agreement, the Selected Dealers Agreement
and all amendments or supplements to any of them as may be reasonably requested
for use in connection with the offering and sale of the Shares; (iii) all
expenses in connection with the qualification of the Shares for offering and
sale under state securities laws or Blue Sky laws, including the fees of the
counsel for the Underwriters in connection therewith; (iv) the filing fees
incident to securing any required review by the NASD of the sale of the Shares
and the reasonable fees and disbursements of the Underwriters' counsel relating
thereto; (v) the cost of preparing stock certificates; (vi) the costs and
charges of any transfer agent or registrar; (vii) the cost of the tax stamps,
if any, in connection with the issuance and delivery of the Shares to the
respective Underwriters; (viii) all other fees, costs and expenses referred to
in Item 13 of the Registration Statement; (ix) all travel, lodging and living
expenses of the Company's directors, officers and employees incurred during
the "road show" or otherwise in connection with the marketing of the Shares;
and (x) all other costs and expenses incident to the performance of the
obligations of the Company and the Selling Shareholder hereunder which are not
otherwise specifically provided for in this Section. Notwithstanding the
foregoing, in the event that the proposed offering is terminated for the
reasons set forth in Section 5(i) hereof, the Company agrees to reimburse the
Underwriters as provided in Section 5(i).
9. INDEMNIFICATION AND CONTRIBUTION. The Company and the Selling
Shareholder jointly and severally agree to indemnify and hold harmless you and
each other Underwriter, the directors, officers, employees and agents of each
Underwriter, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or
in the Registration Statement or the Prospectus or in any amendment or
supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
an untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information furnished in writing to the Company by or on behalf of any
Underwriter through you expressly for use in connection therewith, or arising
out of or based upon any inaccuracy in the representations and warranties of
the Company or the Selling Shareholder contained herein or any failure of the
Company or the Selling Shareholder to perform their respective obligations
hereunder or under law; provided, however, that with respect to any untrue
statement or omission made in any Prepricing Prospectus, the indemnity
agreement contained in this subsection shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such losses,
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claims, damages or liabilities purchased the shares of Stock concerned if both
(A) a copy of the Prospectus was not sent or given to such person at or prior
to the written confirmation of the sale of such shares of Stock to such person
as required by the Act, and (B) the untrue statement or omission in the
Prepricing Prospectus was corrected in the Prospectus. Notwithstanding
anything in this Section 9, in no event shall the Selling Shareholder's
obligation under this Section 9 exceed the total net proceeds from the offering
received by such Selling Shareholder (it being agreed that the Company shall
bear the balance).
In addition to its other obligations under this Section 9, the Company
and the Selling Shareholder agree that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any inaccuracy in
the representations and warranties of the Company or the Selling Shareholder
herein or failure to perform its obligations hereunder, all as described in
this Section 9, they will reimburse each Underwriter on a quarterly basis for
all reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Company's or the Selling Shareholder's
obligation to reimburse each Underwriter for such expenses and the possibility
that such payments might later be held to have been improper by a court of
competent jurisdiction. To the extent that any such interim reimbursement
payment is so held to have been improper, each Underwriter shall promptly
return it to the Company together with interest, compounded daily determined on
the basis of the base lending rate announced from time to time by Chase
Manhattan Bank, N.A. (the "Prime Rate"). Any such interim reimbursement
payments which are not made to the Underwriters within 30 days of a request for
reimbursement shall bear interest at the Prime Rate from the date of such
request.
If any action or claim shall be brought against any Underwriter or any
person controlling any Underwriter in respect of which indemnity may be sought
against the Company or the Selling Shareholder, such Underwriter or such
controlling person shall promptly notify in writing the party(s) against whom
indemnification is being sought (the "indemnifying party" or "indemnifying
parties"), and such indemnifying party(s) shall assume the defense thereof,
including the employment of counsel reasonably acceptable to such Underwriter
or such controlling person and payment of all fees and expenses. Such
Underwriter or any such controlling person shall have the right to employ
separate counsel (but the Company and the Selling Shareholder shall not be
liable for the fees and expenses of more than one counsel) in any such action
and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person
unless (i) the indemnifying party(s) has (have) agreed in writing to pay such
fees and expenses, (ii) the indemnifying party(s) has (have) failed to assume
the defense and employ counsel reasonably acceptable to the Underwriter or such
controlling person or (iii) the named parties to any such action (including any
impleaded parties) include both such Underwriter or such controlling person and
the indemnifying party(s), and such Underwriter or such controlling person
shall have been advised by its counsel that one or more legal defenses may be
available to the Underwriter which may not be available to the Company, or that
representation of such indemnified party and any indemnifying party(s) by the
same counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests
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between them (in which case the indemnifying party(s) shall not have the right
to assume the defense of such action on behalf of such Underwriter or such
controlling person (notwithstanding its (their) obligation to bear the fees and
expenses of such counsel)). The indemnifying party(s) shall not be liable for
any settlement of any such action effected without its (their) written consent,
but if settled with such written consent, or if there be a final judgment for
the plaintiff in any such action, the indemnifying party(s) agrees to indemnify
and hold harmless any Underwriter and any such controlling person from and
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and the
Selling Shareholder, to the same extent as the foregoing indemnity from the
Company and the Selling Shareholder to each Underwriter, but only with respect
to information furnished in writing by or on behalf of such Underwriter through
you expressly for use in the Registration Statement, the Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto. If any action
or claim shall be brought or asserted against the Company, any of its
directors, any such officers, or any such controlling person or the Selling
Shareholder based on the Registration Statement, the Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto, and in respect
of which indemnity may be sought against any Underwriter pursuant to this
paragraph, such Underwriter shall have the rights and duties given to the
Company and the Selling Shareholder by the preceding paragraph (except that if
the Company shall have assumed the defense thereof such Underwriter shall not
be required to do so, but may employ separate counsel therein and participate
in the defense thereof, but the fees and expenses of such counsel shall be at
such Underwriter's expense), and the Company, its directors, any such officers,
and any such controlling persons and the Selling Shareholder shall have the
rights and duties given to the Underwriters by the immediately preceding
paragraph.
If the indemnification provided for in this Section 9 is unavailable
or insufficient for any reason whatsoever to an indemnified party under the
first or fourth paragraph hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then an indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Selling
Shareholder on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and the Selling Shareholder on the one hand
and the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Shareholder on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company and the Selling Shareholder bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus; provided
that, in the event that the Underwriters shall have purchased any Additional
Shares hereunder, any determination of the relative benefits received by the
Company and the Selling Shareholder or the Underwriters from the offering of
the Shares shall include the net proceeds (before deducting expenses) received
by the Company, and the underwriting
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discounts and commissions received by the Underwriters, from the sale of such
Additional Shares, in each case computed on the basis of the respective amounts
set forth in the notes to the table on the cover page of the Prospectus. The
relative fault of the Company and the Selling Shareholder on the one hand and
the Underwriters on the other hand 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 and the Selling Shareholder on the one hand
or by the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Selling Shareholder and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 9
was determined by a 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 the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price of the Shares underwritten by it and distributed to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to
this Section 9 are several in proportion to the respective numbers of Firm
Shares set forth opposite their names in Schedule I hereto (or such numbers of
Firm Shares increased as set forth in Section 11 hereof) and not joint.
Notwithstanding the second paragraph of this Section 9, any losses,
claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 9 shall be paid
by the indemnifying party to the indemnified party as such losses, claims,
damages, liabilities or expenses are incurred. The indemnity, contribution and
reimbursement agreements contained in Section 9 and the representations and
warranties of the Company and the Selling Shareholder, respectively, set forth
in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, its directors or officers
or any person controlling the Company or the Selling Shareholder, (ii)
acceptance of any Shares and payment therefor hereunder and (iii) any
termination of this Agreement. A successor to any Underwriter or any person
controlling any Underwriter, or to the Company, its directors or
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officers, or any person controlling the Company or the Selling Shareholder,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 9.
It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in the second paragraph of this
Section 9, including the amounts of any requested reimbursement payments and
the method of determining such amounts, shall be settled by arbitration
conducted under the provisions of the Constitution and Rules of the Board of
Governors of the New York Stock Exchange, Inc. or pursuant to the Code of
Arbitration Procedure of the NASD. Any such arbitration must be commenced by
service of a written demand for arbitration or written notice of intention to
arbitrate, therein electing the arbitration tribunal. In the event the party
demanding arbitration does not make such designation of an arbitration tribunal
in such demand or notice, then the party responding to said demand or notice is
authorized to do so. Such an arbitration would be limited to the operation of
the interim reimbursement provisions contained in the second paragraph of this
Section 9, and would not resolve the ultimate propriety or enforceability of
the obligation to reimburse expenses which is created by the provisions of the
second paragraph of this Section 9.
10. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to the following conditions:
a. The Registration Statement shall have become
effective not later than 12:00 noon, New York City time, on the date
hereof, or at such later date and time as shall be consented to in
writing by you, and all filings required by Rules 424(b) and 430A
under the Act shall have been timely made.
b. You shall be reasonably satisfied that since the
respective dates as of which information is given in the Registration
Statement and Prospectus, (i) there shall not have been any change in
the capital stock (other than pursuant to the exercise of outstanding
options and warrants disclosed in the Prospectus) of the Company or
any material change in the indebtedness (other than in the ordinary
course of business) of the Company, (ii) except as set forth or
contemplated by the Registration Statement or the Prospectus, no
material verbal or written agreement or other transaction shall have
been entered into by the Company, which is not in the ordinary course
of business or which could reasonably be expected to result in a
material reduction in the future earnings of the Company, (iii) no
loss or damage (whether or not insured) to the property of the Company
shall have been sustained which materially and adversely affects the
condition (financial or otherwise), business, results of operations or
prospects of the Company, (iv) no legal or governmental action, suit
or proceeding affecting the Company which is material to the Company
or which affects or could reasonably be expected to affect the
transactions contemplated by this Agreement shall have been instituted
or threatened, and (v) there shall not have been any material change
in the condition (financial or otherwise), business, management,
results or operations or prospects of the Company which makes it
impractical or inadvisable in your judgment to proceed with the public
offering or purchase the Shares as contemplated hereby.
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c. You shall have received on the Closing Date an
opinion of Stubbeman, McRae, Sealy, Xxxxxxxx & Xxxxxxx, Inc.,
Midland, Texas, as counsel for the Company and the Selling
Shareholder, dated the Closing Date, satisfactory to you and your
counsel, to the effect that:
(i) The Company is a corporation duly organized
and validly existing in good standing under the laws of the
State of Texas with corporate power and authority to own or
hold under lease its properties and conduct its business as
described in the Prospectus, and is duly qualified to conduct
the business in which it is engaged, in each jurisdiction or
place where its ownership or leasing of properties makes such
qualification necessary.
(ii) The Company has all necessary authorizations,
approvals, licenses, certificates, permits and orders of and
from all governmental regulatory officials and bodies of the
United States of America to own its properties and to conduct
its business as described in the Registration Statement and
Prospectus.
(iii) Except for permits and similar authorizations
required under the securities or Blue Sky laws of certain
jurisdictions, no consent, approval, authorization or other
order of any regulatory body, administrative agency or other
governmental body is required for the valid issuance and sale
of the Shares to the Underwriters as contemplated by this
Agreement.
(iv) This Agreement has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company in accordance with its terms,
except as specific performance may be limited by general
principles of equity and except as rights to indemnity
hereunder may be limited by applicable securities laws and
subject to bankruptcy or other laws relating to or affecting
the rights of creditors generally.
(v) The authorized and outstanding capital stock
of the Company is as set forth under the caption
"Capitalization" in the Prospectus, and all of the outstanding
shares of Common Stock of the Company are validly authorized
and issued, fully paid and nonassessable and free of
preemptive rights; the shares of Common Stock reserved for
issuance upon exercise of the Company's outstanding options
have been duly and validly authorized and are sufficient in
number to meet the current exercise requirements of such
securities.
(vi) Except as disclosed in the Registration
Statement and Prospectus, no person has any right to the
registration of any security of the Company by reason of the
Company's filing of the Registration Statement with the
Commission or the consummation of the transactions
contemplated hereby or otherwise.
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(vii) The Shares to be sold by the Company and the
Selling Shareholder have been duly authorized and when paid
for will be validly issued and outstanding, fully paid and
nonassessable and free of preemptive rights.
(viii) The Registration Statement and the Prospectus
and any supplements or amendments thereto (except as to the
financial statements, notes and schedules and other financial
and statistical data included therein as to which such counsel
need not express an opinion) at the time of their
effectiveness complied and as of the Closing Date comply with
the requirements of the Act. Such counsel has participated in
conferences with representatives of the Company, accountants
for the Company, representatives of the Underwriters and
counsel for the Underwriters in connection with the
preparation of the Registration Statement and Prospectus and
have considered the matters required to be stated therein and
the statements contained therein, although such counsel have
not independently verified the accuracy, completeness or
fairness of such statements. Based upon and subject to the
foregoing, no facts have come to the attention of such counsel
that have caused them to believe that the Registration
Statement (other than the financial statements, notes and
schedules and other financial and statistical data included
therein, as to which no belief need be stated), at the time it
became effective and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus (other than the financial statements, notes and
schedules and other financial and statistical data included
therein, as to which no belief need be stated), at the time
the Prospectus was forwarded to the Commission for filing or
on the Closing Date, contained an untrue statement of a
material fact or omitted 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.
(ix) The Registration Statement has become
effective under the Act and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or
contemplated under the Act.
(x) The sale of the Shares and the compliance by
the Company with all of the provisions hereof will not result
in a breach of any of the provisions of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or assets
of the Company pursuant to the terms of any agreement or
instrument to which the Company is a party, or by which the
Company is bound, of which such counsel is aware, will not
result in a violation of the provisions of the certificate of
incorporation or charter, as the case may be, or by-laws of
the Company and will not result in any violation of any
statute or any order, rule or regulation applicable to the
Company of any court or of any federal, state or other
regulatory authority or other governmental body having
jurisdiction over the Company.
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(xi) The Shares conform as to legal matters with
the statements concerning them in the Prospectus and the
certificates representing the Shares are in due and proper
form.
(xii) The statements under the caption "Description
of Capital Stock" and "Underwriting" in the Prospectus,
insofar as such statements constitute a summary of the
documents, securities or legal matters referred to therein,
fairly present the information called for with respect to such
documents, securities or legal matters.
(xiii) So far as such counsel are aware, there are
no legal or governmental proceedings, pending or threatened to
which the Company is a party or of which the business or
property of the Company is the subject which is required to be
described in the Registration Statement or the Prospectus
which is not so described, and there is no contract or
document of a character required to be described in the
Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which is not
described or filed as required.
(xiv) The Company is not in violation of its
charter or by-laws, in default in any respect in the
performance of any obligations, agreement or condition
contained in any bond, debenture, note or any other evidence
of indebtedness or in any indenture, lease, loan agreement or
contract of the Company known to such counsel or in violation
of any franchise, license, permit, judgment, decree, order,
statute, rule or regulation under the laws of the State of
Texas or the United States of America.
(xv) Except as disclosed in the Registration
Statement and Prospectus, there are no patents, copyrights,
trade secrets, service marks, trademarks or trade names not
presently held by or licensed by the Company that, in the
Company's judgment, are material to its business as presently
conducted.
(xvi) This Agreement and the Custody Agreement have
each been duly executed and delivered by the Selling
Shareholder and are valid and binding agreements of the
Selling Shareholder in accordance with their terms, except
as specific performance may be limited by general principles of
equity and except as rights to indemnity hereunder may be
limited under applicable securities laws and subject to
bankruptcy or other laws relating to or affecting the rights
of creditors generally.
(xvii) The Selling Shareholder has full legal right,
power and authorization, and all approval required by law, to
sell, assign, transfer and delivery good and marketable
title to the Shares to be sold by the Selling Shareholder in
the manner provided in this Agreement.
(xviii) Upon delivery of the Shares to be sold by the
Company and the Selling Shareholder pursuant hereto and
payment therefor, as contemplated herein,
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the Underwriters will acquire good and marketable title
thereto, free and clear of any perfected security interest and
free and clear of any encumbrance, adverse claim or other
restriction whatsoever.
(xix) The execution, delivery and performance of
this Agreement and the Custody Agreement will not conflict
with, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the Shares to be sold by the
Selling Shareholder pursuant to the terms of, or constitutes a
default under, any agreement or instrument known to such
counsel to which the Selling Shareholder is a party or result
in any violation of any order, rule or regulation of any court
or governmental agency having jurisdiction over the Selling
Shareholder or his property, and no consent, authorization or
order of, or filing or registration with, any court or
government agency is legally required for the execution,
delivery and performance of this Agreement and the Custody
Agreement, except such as have been obtained under the Act and
such as may be required under the Blue Sky or securities laws
of certain jurisdictions.
(xx) The statements in the Prospectus under the
caption "Principal and Selling Shareholders," insofar as such
statements constitute a summary of the matters referred to
therein, fairly present the information called for with
respect to such matters.
In rendering its opinion hereunder, such counsel for the
Company and the Selling Shareholder may rely: (i) as to matters of
fact, on certificates of officers of the Company and of the Selling
Shareholder and certificates or other written statements of officers
of departments of various jurisdictions having custody of documents
regarding the corporate existence or good standing of the Company; and
(ii) as to matters involving the application of laws other than the
laws of the United States and the State of Texas, to the extent such
counsel deems proper and to the extent specified in such opinion, if
at all, upon an opinion or opinions (in form and substance reasonably
satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to Underwriters' counsel and familiar with the applicable
laws. The opinion of such counsel for the Company and the Selling
Shareholder shall state that counsel for the Company and the Selling
Shareholder believes that you are justified in relying thereon. A
copy of the opinion of any such other counsel shall be attached to the
opinion of such counsel for the Company and the Selling Shareholder.
The opinion of counsel for the Company and the Selling Shareholder may
be expressly limited to the laws of the United States and the State of
Texas.
The opinion of the counsel for the Company and the Selling
Shareholder shall state that as used therein, the qualification "to
the knowledge of such counsel" relates to factual matters and matters
of local law and (i) shall limit the opinions to which such
qualification relates to the actual conscious awareness of information
by those attorneys in such counsel's firm who have been actively
involved in the representation of the Company and the Selling
Shareholder with respect to this Agreement and the transactions
contemplated hereby or otherwise, without independent investigation or
verification; and (ii) does not
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indicate or imply that such counsel has not conducted such review as
it, in its professional judgment, has deemed necessary or appropriate
to render such opinion, but does indicate that such counsel has relied
upon factual certificates, representations and information from the
Company and its representatives and the Selling Shareholder, having
such scope and in such form as such counsel has deemed appropriate.
Such opinion shall also state that such counsel waives any
right it may have, at the time of giving the opinion or thereafter, to
assert against the Underwriters any claim or defense based on the
absence of privity between the Underwriters and such counsel with
respect to reliance by the Underwriters on such opinion; provided,
however, that the foregoing shall not constitute a waiver of the
attorney-client privilege between such counsel and the Company or the
Selling Shareholder nor a waiver of any other claim or defense
available at law or in equity.
d. You shall have received on the Closing Date (and the
Additional Closing Date, if any) an opinion of Xxxxxxxx & Knight,
P.C., as counsel for the Underwriters, dated the Closing Date with
respect to the issuance and sale of the Firm Shares, the Registration
Statement and other related matters as you may reasonably request and
the Company and its counsel shall have furnished to your counsel such
documents as they may reasonably request for the purpose of enabling
them to pass upon such matters.
e. You shall have received letters addressed to you and
dated the date hereof and the Closing Date from KMPG Peat Marwick LLP,
independent certified public accountants, substantially in the forms
heretofore approved by you.
f.(i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall be pending or, to the knowledge of the Company,
shall be threatened or contemplated by the Commission at or prior to
the Closing Date; (ii) no order suspending the effectiveness of the
Registration Statement or the qualification or registration of the
Shares under the securities or Blue Sky laws of any jurisdiction shall
be in effect and no proceeding for such purpose shall be pending or,
to the knowledge of the Company, threatened or contemplated by the
Commission or the authorities of any jurisdiction; (iii) any request
for additional information on the part of the staff of the Commission
or any such authorities shall have been complied with to the
satisfaction of the staff of the Commission or such authorities; (iv)
after the date hereof no amendment or supplement to the Registration
Statement or the Prospectus shall have been filed unless a copy
thereof was first submitted to you and you did not object thereto in
good faith; and (v) all of the representations and warranties of the
Company and the Selling Shareholder contained in this Agreement shall
be true and correct in all respects on and as of the date hereof and
on and as of the Closing Date as if made on and as of the Closing
Date, and you shall have received a certificate, dated the Closing
Date and signed by the chief executive officer and the chief financial
officer of the Company (or such other officers as are acceptable to
you) as well as the Selling Shareholder to the effect set forth in
this Section 10(f) and in Sections 10(b) and 10(g) hereof.
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g. The Company and the Selling Shareholder shall not
have failed in any respect at or prior to the Closing Date to have
performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior
to the Closing Date.
h. You shall have received a certificate, dated on and
as of the Closing Date, by or on behalf of the Selling Shareholder to
the effect that as of such Closing Date the Selling Shareholder's
representations and warranties in this Agreement are true and correct
as if made on and as of such Closing Date, and that the Selling
Shareholder has performed all the Selling Shareholder's obligations
and satisfied all the conditions on the Selling Shareholder's part to
be performed or satisfied at or prior to the Closing Date.
i. The Company and the Selling Shareholder shall have
furnished or caused to have been furnished to you such further
certificates and documents as you shall have reasonably requested.
j. At or prior to the Closing Date, you shall have
received the written commitment of each of the Company's officers and
directors and certain of their affiliates and the Selling Shareholder
not to sell, offer or contract to sell, or otherwise dispose of or
transfer any shares of Common Stock or rights to purchase any of such
shares of Common Stock, directly or indirectly, except to the
Underwriters pursuant to this Agreement, for a period of 120 days
after commencement of the public offering of the Shares by the
Underwriters without the prior written consent of Xxxxxxx Xxxxx &
Associates, Inc.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of the Additional
Closing Date of the conditions set forth in this Section 10, except that, if
the Additional Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (h) shall be dated
as of the Additional Closing Date and the opinion called for by paragraph (c)
shall be revised to reflect the sale of Additional Shares.
If any of the conditions hereinabove provided for in this Section 10
shall not have been satisfied when and as required by this Agreement, this
Agreement may be terminated by you by notifying the Company of such termination
in writing or by telegram at or prior to such Closing Date, but you shall be
entitled to waive any of such conditions.
11. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective upon the later of (a) the execution and delivery hereof by the
parties hereto, and (b) release of notification of the effectiveness of the
Registration Statement by the Commission; provided, however, that the
provisions of Sections 8 and 9 shall at all times be effective.
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If any one or more of the Underwriters shall fail or refuse to
purchase Firm Shares which it or they have agreed to purchase hereunder, and
the aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of the Firm Shares, each non-defaulting
Underwriter shall be obligated, severally, in the proportion which the number
of Firm Shares set forth opposite its name in Schedule I hereto bears to the
aggregate number of Firm Shares set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
the Agreement Among Underwriters, to purchase the Firm Shares which such
defaulting Underwriter or Underwriters agreed, but failed or refused to
purchase. If any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares
and arrangements satisfactory to you, the Company and the Selling Shareholder
for the purchase of such Firm Shares are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Shareholder. In any
such case which does not result in termination of this Agreement, either you or
the Company and the Selling Shareholder shall have the right to postpone the
Closing Date, but in no event for longer than seven (7) days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any such default of any such Underwriter under this Agreement.
12. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company or the Selling Shareholder by notice to the Company
and the Selling Shareholder, if prior to the Closing Date or the Additional
Closing Date (if different from the Closing Date and then only as to the
Additional Shares), as the case may be, in your sole judgment, (i) trading in
the Company's Common Stock shall have been suspended by the Commission or the
Nasdaq National Market, (ii) trading in securities generally on the New York
Stock Exchange, American Stock Exchange or Nasdaq National Market shall have
been suspended or materially limited, or minimum or maximum prices shall have
been generally established on such exchange or market, or additional material
governmental restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by any such exchange or
market or by order of the Commission or any court or other governmental
authority, (iii) a general moratorium on commercial banking activities shall
have been declared by either federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or other
international or domestic calamity, crisis or change in political, financial or
economic conditions or other material event the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable to market the Shares or to enforce contracts for
the sale of the Shares. Notice of such cancellation shall be promptly given to
the Company and its counsel by telegraph, telecopy or telephone and shall be
subsequently confirmed by letter.
13. INFORMATION FURNISHED BY THE UNDERWRITERS. The Company
acknowledges that the statements under the third paragraph under the caption
"Underwriting" in any Prepricing Prospectus and in the Prospectus, constitute
the only information furnished by or on behalf of the
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Underwriters through you or on your behalf as such information is referred to
in Sections 6(a), 6(b) and 9 hereof.
14. MISCELLANEOUS. Except as otherwise provided in Sections 5 and
12 hereof, notice given pursuant to any of the provisions of this Agreement
shall be in writing and shall be delivered (i) if to the Company or the Selling
Shareholder, to the office of the Company at 000 Xxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000, Attention: President (with copy to Xxxx X. Xxxx,
Stubbeman, McRae, Sealy, Xxxxxxxx & Xxxxxxx, Inc., 000 Xxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 79701) or (ii) if to you, as Representatives of the
Underwriters, to Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx 00000, Attention: Corporate Finance Department, (with copy
to X. Xxxx Lemon III, Xxxxxxxx & Xxxxxx, P.C., 0000 Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 75201).
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 9 hereof, the Selling Shareholder
and their respective successors and assigns, to the extent provided herein, and
no other person shall acquire or have any right under or by virtue of this
Agreement. Neither of the terms "successor" and "successors and assigns" as
used in this Agreement shall include a purchaser from you of any of the Shares
in his status as such purchaser.
15. APPLICABLE LAW; COUNTERPARTS. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA
WITHOUT REFERENCE TO CHOICE OF LAW PRINCIPLES THEREUNDER.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
Subject to Section 11, this Agreement shall be effective when, but
only when, at least one counterpart hereof shall have been executed on behalf
of each party hereto.
The Company, the Selling Shareholder and the Underwriters each hereby
irrevocably waive any right they may have to a trial by jury in respect to any
claim based upon or arising out of this Agreement or the transactions
contemplated hereby.
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Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Shareholder and the several Underwriters.
Very truly yours,
XXXXXX GEOPHYSICAL COMPANY
By:
-----------------------------------
Name: X. Xxxxxx Xxxxxx
Title: President
SELLING SHAREHOLDER
---------------------------------------
X. Xxxxxx Xxxxxx
CONFIRMED as of the date first above mentioned,
on behalf of itself and the other several
Underwriters named in Schedule I hereto.
XXXXXXX XXXXX & ASSOCIATES, INC.
By:
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
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SCHEDULE I
(1) (2) (3)
Number of Number of Number of Firm
Firm Shares Firm Shares to Shares to be
to be be Purchased Purchased from
Name Purchased from the Company the Selling Shareholder
---- --------- ---------------- -----------------------
Xxxxxxx Xxxxx & Associates, Inc.
Principal Financial Securities, Inc. . .
--------- --------- -------
Total . . . . . . . . . . . 1,500,000 1,000,000 500,000
========= ========= =======
