Exhibit 10.10
-------------
2,500,000 Shares
DENBURY RESOURCES INC.
Common Stock
UNDERWRITING AGREEMENT
----------------------
March 6, 2003
XXXXXX BROTHERS INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Certain stockholders of Denbury Resources Inc., a Delaware corporation
(the "Company"), named in Schedule 2 hereto (the "Selling Stockholders"),
propose to sell an aggregate of 2,500,000 shares (the "Firm Stock") of the
Company's common stock, par value $.001 per share (the "Common Stock"). In
addition, the Selling Stockholders propose to grant to you, the underwriter
named in Schedule 1 hereto (the "Underwriter"), an option to purchase up to an
additional 375,000 shares of the Common Stock, in the aggregate, on the terms
and for the purposes set forth in Section 3 below (the "Option Stock"). The Firm
Stock and the Option Stock, if purchased, are hereinafter collectively called
the "Stock." This is to confirm the agreement concerning the purchase of the
Stock from the Company and the Selling Stockholders by the Underwriter.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-57382) with
respect to the Stock has (i) been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act.
Copies of such registration statement and amendments thereto have been
delivered by the Company to you as the Underwriter. As used in this
Agreement, "Effective Time" means the date and the time as of which
such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such registration
statement, or amendments thereto, before it became effective under the
Securities Act and any prospectus filed with the Commission by the
Company with the consent of the Underwriter pursuant to Rule 424(a) of
the Rules and Regulations; "Registration Statement" means such
registration statement, as amended at the Effective Time, including all
information contained in the final prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations and deemed to be a
part of the registration statement as of the Effective Time pursuant to
paragraph (b) of Rule 430A of the Rules and Regulations; and
"Prospectus" means the prospectus supplement and the accompanying
prospectus and all information incorporated by reference therein at
such time, in the form first used to confirm sales of Stock. Reference
made herein to any Preliminary Prospectus or to the Prospectus shall be
deemed to refer to and include any documents incorporated by reference
therein pursuant to item 12 of Form S-3 under the Securities Act, as of
the date of such Preliminary Prospectus or the Prospectus, as the case
may be, and any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any document filed under the Securities Exchange Act of
1934, as amended ("Exchange Act") after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated by
reference in the Preliminary Prospectus or the Prospectus, as the case
may be; and any reference to any amendment to the Registration
Statement shall be deemed to include any periodic report of the Company
filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Time that is incorporated by reference
in the Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations and do
not and will not, as of the applicable Effective Date (as to the
Registration Statement and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) 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; provided that
no representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriter specifically for inclusion
therein.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects
to the requirements of the Exchange Act and the Rules and Regulations,
and none of such documents contained an untrue statement of material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act and the rules and regulations thereunder and will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(d) The Company and each of its subsidiaries (as defined in Section
17) have been duly incorporated or formed, as the case may be, and are
validly existing, as their respective business entities, and in good
standing under the laws of their respective jurisdictions of
incorporation or formation, as the case may be, are duly qualified to
do business and are in good standing as foreign corporations or limited
liability companies in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification (except where the failure to so
qualify or be in good standing as a foreign corporation or limited
liability company would not have a material adverse effect on the
consolidated financial position, stockholders' or members' equity (as
the case may be), results of operation, business or prospects of the
Company and its subsidiaries, taken as a whole), and have all power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged; and none of the
subsidiaries of the Company other than Denbury Offshore, Inc. is a
"significant subsidiary", as such term is defined in Rule 405 of the
Rules and Regulations under the Securities Act.
(e) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof
contained in the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and (except
for directors' qualifying shares) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims except as disclosed in the Prospectus.
(f) The shares of Stock to be sold by the Selling Stockholders to
the Underwriter hereunder have been duly and validly authorized.
(g) This Agreement has been duly authorized, executed and delivered
by the Company.
(h) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
hereby will not conflict with or 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, loan agreement or other agreement
or instrument, which violation, breach or conflict would have a
material adverse effect on the consolidated financial position,
stockholders' or members' equity (as the case may be), results of
operation, business or prospects of the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any violation
of the provisions of the charter or by-laws of the Company or any of
its subsidiaries or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets; and except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state securities laws in connection with the
purchase and distribution of the Stock by the Underwriter, no consent,
approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement by the Company
and the consummation of the transactions contemplated hereby other than
those that have been obtained.
(i) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right (other than rights which have been
waived or satisfied) to require the Company to file a registration
statement under the Securities Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Securities Act.
(j) Except as set forth in the Prospectus, the Company has not sold
or issued any shares of Common Stock during the six-month period
preceding the date of the Prospectus, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Securities Act other
than shares issued pursuant to director compensation plans, employee
benefit plans, qualified stock options plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants.
(k) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included in
the Prospectus, any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus, and, since such date, there has not been any change in
the capital stock (except for exercises of options since such date
under the Company's existing director compensation plans, existing
stock option plan and issuances of stock under the Company's existing
stock purchase plan) or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
management, financial position, stockholders' equity or results of
operations, business or prospects of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus.
(l) The financial statements (including the related notes and
supporting schedules), filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby, at
the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(m) Deloitte & Touche L.L.P., who have certified certain financial
statements of the Company, whose reports appear in the Prospectus and
who has delivered one of the initial letters referred to in Section
9(g) hereof, are and have been independent public accountants as
required by the Securities Act and the Rules and Regulations, during
the periods covered by the financial statements on which they reported.
(n) XxXxxxxx and XxxXxxxxxxx, whose reserve audits or evaluations
are referenced or appear, as the case may be, in the Prospectus and who
have delivered the letters referred to in Section 9(i) hereof, were, as
of December 31, 2000 and December 31, 2001, as the case may be, and
are, as of the date hereof, independent engineers with respect to the
Company and its subsidiaries.
(o) The Company and each of its subsidiaries has (1) generally
satisfactory or good and indefeasible title to all its interests in its
oil and gas properties, title investigations having been carried out by
or on behalf of such person in accordance with good practice in the oil
and gas industry in the areas in which such properties are located, (2)
good and marketable title in fee simple to all of its other real
property, and (3) good and marketable title to all personal property
owned by it, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do
not materially affect the value of such properties as a whole and do
not materially interfere with the use made and proposed to be made of
such properties as a whole by the Company and its subsidiaries; and all
real properties and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such properties and
buildings as a whole by the Company and its subsidiaries.
(p) The Company and its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as the Company
reasonably believes is adequate for the conduct of their respective
businesses and the value of their respective properties and is
customary for companies engaged in similar businesses in similar
industries.
(q) The Company and its subsidiaries own or possess adequate rights
to use all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx
registrations, copyrights and licenses necessary for the conduct of
their respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and have not
received any notice of any claim of conflict with, any such rights of
others.
(r) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would be
reasonably expected to have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries,
taken as a whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(s) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(t) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which
have not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as
permitted by the Rules and Regulations.
(u) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is
required to be described in the Prospectus which is not so described.
(v) No labor disturbance by the employees of the Company exists or,
to the knowledge of the Company, is imminent which might be reasonably
expected to have a material adverse effect on the management,
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries,
taken as a whole.
(w) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any material
liability; the Company has not incurred and does not expect to incur
any material liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Section
412 or 4971 of the Internal Revenue Code of 1986, as amended, including
the regulations and published interpretations thereunder (the "Code");
and each "pension plan" for which the Company would have any material
liability that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and, to the best of the
Company's knowledge, nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
(x) The Company and its subsidiaries have filed all federal, state
and local income and franchise tax returns required to be filed through
the date hereof or have filed for appropriate extensions for such taxes
and have paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries which
has had (nor does the Company have any knowledge of any tax deficiency
which, if determined adversely to the Company or any of its
subsidiaries, might have) a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries, taken as a
whole.
(y) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) except for
exercises of options since such date under the Company's existing
director compensation plans or existing stock option plan and issuances
of stock under the Company's existing stock purchase plan, issued or
granted any securities, (ii) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations which were
incurred in the ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business or (iv) declared or
paid any dividend on its capital stock.
(z) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary
to permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted
only in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(aa) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any respect,
and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which
any of its properties or assets is subject or (iii) is in violation in
any respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject or
has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership
of its property or to the conduct of its business, except, in the cases
of clauses (ii) and (iii), such defaults, events, violations or
failures that in the aggregate might reasonably be expected to have a
material adverse effect on the management, consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries, taken as a whole.
(bb) The course of conduct of the Company in transactions between
the Company and its subsidiaries on one hand, and Genesis Partners,
L.P. (the "Partnership") and its subsidiaries on the other hand, since
the acquisition by the Company of Genesis Energy LLC, the general
partner of the Partnership, has at all times been "fair and reasonable"
to the Partnership, as determined within the context of Section 7.9 of
the limited partnership agreement of the Partnership.
(cc) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes,
medical wastes, hazardous wastes or hazardous substances by the Company
or any of its subsidiaries (or, to the knowledge of the Company, any of
their predecessors in interest) at, upon or from any of the property
now or previously owned or leased by the Company or its subsidiaries in
violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action under
any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which
would not have, or could not be reasonably likely to have, singularly
or in the aggregate with all such violations and remedial actions, a
material adverse effect on the management, consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries, taken as whole; there
has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to
or caused by the Company or any of its subsidiaries or with respect to
which the Company or any of its subsidiaries have knowledge, except for
any such spill, discharge, leak, emission, injection, escape, dumping
or release which would not have or would not be reasonably likely to
have, singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings and releases, a
material adverse effect on the management, consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries, taken as a whole; and
the terms "hazardous wastes", "toxic wastes", "hazardous substances"
and "medical wastes" shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations with
respect to environmental protection ("Environmental Laws").
(dd) Neither the Company nor any subsidiary is an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(ee) Except as described in the Prospectus, no subsidiary of the
Company is currently prohibited, directly or indirectly, from paying
any dividends to the Company, from making any other distribution on
such subsidiary's capital stock, from repaying to the Company any loans
or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company.
(ff) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities ("Permit"
or "Permits") necessary for the ownership of property or assets or to
conduct their respective businesses except where the failure to have
such Permits would not reasonably be expected to have a material
adverse effect on the management, consolidated financial position,
stockholders' equity, results of operations, business or prospects of
the Company and its subsidiaries, taken as a whole; neither the Company
nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the
management, consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole; the Company and each of its
subsidiaries has operated and is operating its business in compliance
with and not in violation of any of its obligations with respect to
each such Permit except where such violation would not reasonably be
expected to have a material adverse effect on the management,
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries,
taken as a whole; no event has occurred which allows, or after notice
or lapse of time or both would allow, revocation or termination of any
such Permit or result in any other impairment of the rights of the
Company or any of its subsidiaries under any such Permit, subject in
each case to such qualification as described in the Prospectus; and,
except as described in the Prospectus, such permits contain no
restrictions that are burdensome to the Company or any of its
subsidiaries except for restrictions that would not, singly or in the
aggregate, have a material adverse effect on the management,
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries,
taken as a whole.
Any certificate signed by any officer of the Company and
delivered to the Underwriter or counsel for the Underwriter in connection with
the offering of the Stock shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to the Underwriter.
2. Representations, Warranties and Agreements of the Selling
Stockholders. Each Selling Stockholder severally, and not jointly, represents,
warrants and agrees that:
(a) The Selling Stockholder has, and immediately prior to each
Delivery Date (as defined in Section 5 hereof) the Selling Stockholder
will have, good and valid title to the shares of Stock to be sold by
the Selling Stockholder hereunder on such date, free and clear of all
liens, encumbrances, equities or claims; and upon delivery of such
shares and payment therefor pursuant hereto and thereto (and assuming
that the Underwriter acquires the shares of Stock without any notice of
any adverse claim (within the meaning of Section 8-105 of the Uniform
Commercial Code) that has been created by the Underwriter or its
Affiliates) good and valid title to such shares, free and clear of all
liens, encumbrances, equities or claims, will pass to the Underwriter.
(b) The Selling Stockholder has full right, partnership power and
authority to enter into this Agreement; the execution, delivery and
performance of this Agreement by the Selling Stockholder and the
consummation by the Selling Stockholder of the transactions
contemplated hereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which any of
the property or assets of the Selling Stockholder is subject, nor will
such actions result in any violation of the provisions of the
certificate of limited partnership or the partnership agreement of the
Selling Stockholder, or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Selling Stockholder or the property or assets of the Selling
Stockholder; and, except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
registrations, filings or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection with
the purchase and distribution of the Stock by the Underwriter, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement by the Selling
Stockholder and the consummation by the Selling Stockholder of the
transactions contemplated hereby and thereby.
(c) The Registration Statement and the Prospectus and any further
amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or are filed with the
Commission, as the case may be, do not and will not, as of the
applicable Effective Date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) 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; provided, however, the foregoing representations and
warranties shall only apply to statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to such Selling Stockholder
furnished to the Company in writing by such Selling Stockholder
expressly for use therein; and provided, further, that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriter specifically for inclusion
therein.
(d) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the shares of the Stock.
3. Purchase of the Stock by the Underwriter. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, each Selling Stockholder hereby agrees to sell
the number of shares of the Firm Stock set opposite its name in Schedule 2
hereto, severally and not jointly, to the Underwriter and the Underwriter agrees
to purchase the number of shares of the Firm Stock set opposite the
Underwriter's name in Schedule 1 hereto.
In addition, the Selling Stockholders specified in Schedule 2 hereto
grant to the Underwriter options to purchase up to an aggregate of 375,000
shares of Option Stock. Such options are granted solely for the purpose of
covering over-allotments in the sale of Firm Stock and are exercisable as
provided in Section 5 hereof. Shares of Option Stock shall be purchased for the
account of the Underwriter in proportion to the number of shares of Firm Stock
set forth opposite the name of the Underwriter in Schedule 1 hereto. The price
of both the Firm Stock and any Option Stock shall be $10.95 per share.
The Selling Stockholders shall not be obligated to deliver any of the
Stock to be delivered on the First Delivery Date or the Second Delivery Date, as
the case may be, except upon payment for all the Stock to be purchased on such
Delivery Date as provided herein.
4. Offering of Stock by the Underwriter. Upon authorization by the
Underwriter of the release of the Firm Stock, the Underwriter proposes to offer
the Firm Stock for sale upon the terms and conditions set forth in the
Prospectus.
5. Delivery of and Payment for the Stock. Delivery of and payment for
the Firm Stock shall be made at the office of Xxxxxxx & Xxxxx L.L.P., 000
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, at 9:00 A.M., Houston, Texas time, on
the fourth full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the Underwriter,
the Selling Stockholders and the Company. This date and time are sometimes
referred to herein as the "First Delivery Date." On the First Delivery Date, the
Selling Stockholders shall deliver or cause to be delivered certificates
representing the Firm Stock to the Underwriter for the account of the
Underwriter against payment to or upon the order of the Selling Stockholders of
the purchase price by wire transfer in immediately available funds. Time shall
be of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of the Underwriter hereunder.
Upon delivery, the Firm Stock shall be registered in such names and in such
denominations as the Underwriter shall request in writing not less than two full
business days prior to the First Delivery Date. For the purpose of expediting
the checking and packaging of the certificates for the Firm Stock, the Selling
Stockholders shall, or shall cause a custodian to, make the certificates
representing the Firm Stock available for inspection by the Underwriter in New
York, New York, not later than 2:00 P.M., New York City time, on the business
day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the options granted in Section 3 above may be exercised by written
notice being given to the Company and the Selling Stockholders by the
Underwriter. Exercise of these options shall be exercised pro rata among the
Selling Stockholders set forth in Schedule 2 hereto as determined by the
Underwriter. Such notice shall set forth the aggregate number of shares of
Option Stock as to which the options are being exercised, the names in which the
shares of Option Stock are to be registered, the denominations in which the
shares of Option Stock are to be issued and the date and time, as determined by
the Underwriter, when the shares of Option Stock are to be delivered; provided,
however, that this date and time shall not be earlier than the First Delivery
Date nor earlier than the second business day after the date on which the
options shall have been exercised nor later than the fifth business day after
the date on which the options shall have been exercised. The date and time the
shares of Option Stock are delivered are sometimes referred to as the "Second
Delivery Date" and the First Delivery Date and the Second Delivery Date are
sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at the place
specified in the first sentence of the first paragraph of this Section 5 (or at
such other place as shall be determined by agreement between the Underwriter,
the Selling Stockholders and the Company) at 9:00 A.M., Dallas, Texas time, on
the Second Delivery Date. On the Second Delivery Date, the Selling Stockholders
shall deliver or cause to be delivered the certificates representing the Option
Stock to the Underwriter for the account of the Underwriter against payment to
or upon the order of the Selling Stockholders of the purchase price by wire
transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of the Underwriter hereunder. Upon delivery, the
Option Stock shall be registered in such names and in such denominations as the
Underwriter shall request in the aforesaid written notice. For the purpose of
expediting the checking and packaging of the certificates for the Option Stock,
the Selling Stockholders shall make the certificates representing the Option
Stock available for inspection by the Underwriter in New York, New York, not
later than 2:00 P.M., New York City time, on the business day prior to the
Second Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Underwriter
and to file the Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or,
if applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Securities Act; to make no further amendment or any
supplement to the Registration Statement or to the Prospectus except as
permitted herein; to advise the Underwriter, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Underwriter with copies thereof; to advise the Underwriter, promptly
after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to the Underwriter and to counsel for the
Underwriter a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriter such number of the
following documents as the Underwriter shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding
exhibits) and, (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus; and, if the delivery of a
prospectus is required at any time after the Effective Time in
connection with the offering or sale of the Stock or any other
securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Securities
Act or the Exchange Act, to notify the Underwriter and, upon its
request, to file such document and to prepare and furnish without
charge to the Underwriter and to any dealer in securities as many
copies as the Underwriter may from time to time reasonably request of
an amended or supplemented Prospectus which will correct such statement
or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Underwriter,
be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any prospectus pursuant
to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Underwriter and counsel for the Underwriter and obtain the consent
of the Underwriter to the filing; provided, that the foregoing
restriction shall not preclude the Company from (x) filing without the
consent of the Underwriter any document required to be filed under the
Exchange Act or (y) after the period set forth in Section 6(i) of this
Agreement, amending the Registration Statement or filing a prospectus;
(f) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver to
the Underwriter an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
(g) For a period of three years following the Effective Date, to
furnish to the Underwriter copies all materials furnished by the
Company to its stockholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Common Stock may be listed pursuant
to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder; provided however that the Company shall not
be required to provide the Underwriter with any such reports,
registration statements or similar forms that have been filed with the
Commission by electronic transmission pursuant to XXXXX;
(h) Promptly from time to time to take such action as the
Underwriter may reasonably request to qualify the Stock for offering
and sale under the securities laws of such jurisdictions as the
Underwriter may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Stock;
provided that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(i) Prior to the Effective Date, to apply, to the extent necessary,
for the listing of the Stock on the New York Stock Exchange and to use
its best efforts to complete that listing, subject only to official
notice of issuance, prior to the First Delivery Date;
(j) To take such steps as shall be necessary to ensure that neither
the Company nor any subsidiary shall become an "investment company"
within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission thereunder; and
(k) To not directly or indirectly take any action designed to or
which has constituted or which might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Stock.
7. Further Agreements of the Selling Stockholders. Each Selling
Stockholder, severally and not jointly, agrees:
(a) For a period of 60 days from the date of the Prospectus not to
(1) offer for sale, sell, pledge or otherwise dispose of (or enter into
any transaction or device which is designed to, or could be expected
to, result in the disposition by any person at any time in the future
of) any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the Stock) or (2) enter into
any swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership of
such shares of Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or
other securities, in cash or otherwise, without the prior written
consent of Xxxxxx Brothers Inc.;
(b) That the Stock to be sold by the Selling Stockholder hereunder
is subject to the interest of the Underwriter and the other Selling
Stockholders hereunder, and that the Selling Stockholders shall not,
directly or indirectly, take any action that may terminate its
obligations hereunder (other than the termination of this Agreement);
and
(c) To deliver to the Underwriter on or prior to the First Delivery
Date or the Second Delivery Date, as the case may be, a properly
completed and executed United States Treasury Department Form W-9.
8. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided in
this Agreement; (d) the costs of producing and distributing this Agreement and
any other related documents in connection with the offering, purchase, sale and
delivery of the Stock; (e) the filing fees incident to securing any required
review by the NASD of the terms of sale of the Stock; (f) any applicable listing
or other fees; (g) all other costs and expenses incident to the performance of
the obligations of the Company and the Selling Stockholders under this Agreement
except that the discount to the Underwriter for the purchase of the Stock shall
be borne by the Selling Stockholders; provided that, except as provided in this
Section 8 and in Section 13 below the Underwriter shall pay its own costs and
expenses, including the costs and expenses of its counsel, any transfer taxes on
the Stock which they may sell and the expenses of advertising any offering of
the Stock made by the Underwriter, and, as between the Underwriter and the
Selling Stockholders only, each of the Selling Stockholders shall pay the fees
and expenses of his or its counsel, any custodian (and any other
attorney-in-fact), and any transfer taxes payable in connection with his or its
respective sales of Stock to the Underwriter; and provided further, that the
provisions of this Section 8 shall not affect any agreement that the Company and
any Selling Stockholder may have entered into, or may hereafter enter into, with
respect to the sharing or reimbursement of any of the foregoing costs and
expenses.
9. Conditions of Underwriter's Obligations. The respective obligations
of the Underwriter hereunder are subject to the accuracy, when made and on each
Delivery Date, of the representations and warranties of the Company and the
Selling Stockholders contained herein, to the performance by the Company and the
Selling Stockholders of their respective obligations hereunder, and to each of
the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 6(a) above; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of Xxxxxxx
& Xxxxx L.L.P., counsel for the Underwriter, is material or omits to
state a fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Stock, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory in all material respects to counsel
for the Underwriter, and the Company and the Selling Stockholders shall
have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(d) Jenkens and Xxxxxxxxx, A Professional Corporation, shall have
furnished to the Underwriter its written opinion, as counsel to the
Company, addressed to the Underwriter and dated such Delivery Date, in
form and substance reasonably satisfactory to the Underwriter, to the
effect that:
(i) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations or limited
liability companies, as the case may be, in good standing under the
laws of their respective jurisdictions of incorporation or
formation, are duly qualified to do business and are in good
standing as foreign corporations or limited liability companies in
each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, (other than where the failure to so qualify or
be in good standing as a foreign corporation would not have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operation or business of the
Company and its subsidiaries, taken as a whole), and have all power
and authority necessary to own or hold their respective properties
and conduct the businesses described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description
thereof contained in the Prospectus; and all of the issued shares
of capital stock (or the equivalent) of each subsidiary of the
Company have been duly and validly authorized and issued and are
fully paid, non-assessable and (except for any directors'
qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(iii) The shares of the Stock being delivered on such Delivery
Date to the Underwriter hereunder have been duly and validly
authorized and validly issued and are fully paid and
non-assessable;
(iv) Except as described in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares of the
Common Stock (including the Stock) pursuant to the Company's
charter or by-laws or any agreement or other instrument filed as an
exhibit to one of the Company's periodic reports under the Exchange
Act;
(v) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property or assets of
the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries,
might have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries, taken as a whole;
and, to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others;
(vi) The Registration Statement was declared effective under
the Securities Act as of the date and time specified in such
counsel's opinion, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified therein
and no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of such counsel, no
proceeding for that purpose is pending or threatened by the
Commission;
(vii) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior
to each Delivery Date (except for the financial statements and
financial schedules and other financial and related reserve
information included therein, as to which such counsel need express
no belief) comply as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations,
and the documents incorporated by reference in the Prospectus when
they where filed with the Commission (except for the financial
statements and financial schedules and other financial and related
reserve information included therein, as to which such counsel need
express no belief) complied as to form in all material respects
with the requirements of the Exchange Act and the Rules and
Regulations;
(viii) The statements contained in the Prospectus under the
heading "Description of Capital Stock" insofar as such statements
refer to statements of law, descriptions of statutes, rules or
regulations or legal conclusions, are accurate and fair summaries
of such statements of law, descriptions of statutes, rules or
regulations or legal conclusions;
(ix) To such counsel's knowledge, there are no contracts or
other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations which have not
been described or filed as exhibits to the Registration Statement
or incorporated therein by reference as permitted by the Rules and
Regulations;
(x) This Agreement has been duly authorized, executed and
delivered by the Company;
(xi) The compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions
contemplated hereby will not conflict with or 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, loan
agreement or other agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of
the material property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries or any statute or any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties or assets; and,
except for the registration of the Stock under the Securities Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and distribution of the Stock by the Underwriter, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for
the execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated
hereby and thereby;
(xii) To such counsel's knowledge, except as described or
included in the Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right (other than rights which have been waived or
satisfied) to require the Company to file a registration statement
under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by
the Company under the Securities Act;
(xiii) Neither the Company nor any subsidiary is an "investment
company" as defined in the Investment Company Act of 1940, as
amended.
In rendering such opinion, such counsel may state that (x) their
opinion is limited to matters governed by the Federal laws of the United States
of America, the laws of the State of Texas and the General Corporation Law of
the State of Delaware, and that such counsel is not admitted in Delaware and (y)
insofar as the foregoing opinions relate to the valid existence and good
standing of the Company and its subsidiaries, they are based solely on
certificates of authorities in the states of organization of the Company and
such subsidiaries that such counsel received in response to such counsel's
requests for confirmation of the existence and good standing of the Company and
such subsidiaries in such states, copies of which certificates have been
furnished to you, and, in rendering the opinion set forth in opinion (i) above
with respect to the qualification and the good standing as a foreign corporation
of the Company and such subsidiaries, such counsel has relied solely on
certificates such counsel received from the states necessary to give such
opinion that such counsel received in response to such counsel's requests for
confirmation of such qualification and good standing, as the case may be, of the
Company and such subsidiaries in such states, copies of which certificates have
been furnished to you.
Such counsel shall also have furnished to the Underwriter a written
statement, addressed to the Underwriter and dated such Delivery Date, in form
and substance reasonably satisfactory to the Underwriter, to the effect that (x)
such counsel has acted as counsel to the Company in connection with the
preparation of the Registration Statement and (y) based on the foregoing, no
facts have come to the attention of such counsel which lead them to believe that
the Registration Statement (except for the financial statements and related
schedules and other financial data, and reserve information included therein, as
to which such counsel need express no belief) as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus (except as stated above) contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing opinion
and statement may be qualified by a statement to the effect that such counsel
does not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Prospectus, except
for the statements made in the Prospectus under the caption "Description of
Capital Stock" insofar as such statements relate to the Stock and concern legal
matters.
(e) Counsel for the Selling Stockholders shall have furnished to
the Underwriter its written opinion, as counsel to the Selling
Stockholders for whom it is acting as counsel, addressed to the
Underwriter and dated the First Delivery Date, in form and substance
reasonably satisfactory to the Underwriter, to the effect that:
(i) Each of the Selling Stockholders has been duly formed as a
limited partnership under the Delaware Revised Uniform Limited
Partnership Act, 6 Del. Sec. 17-101 et. seq. and is validly
existing and in good standing under the laws of the State of
Delaware.
(ii) Each Selling Stockholder has the partnership power to
enter into this Agreement and to perform its obligations
thereunder;
(iii) The execution, delivery and performance of this Agreement
have been duly authorized by all necessary partnership action of
each Selling Stockholder. The Underwriting Agreement has been duly
executed and delivered by each Selling Stockholder;
(iv) The execution and delivery by each Selling Stockholder of
this Agreement and the performance of its obligations hereunder (a)
do not require any consent, approval, authorization, registration
or qualification of or with any governmental authority of the
United States of America or the State of New York, except such as
may be required under the Securities Act of 1933 and the Securities
Exchange Act of 1934 (but without expressing an opinion as to any
consent, approval, authorization, registration or qualification
that may be required under state securities or Blue Sky laws), (b)
do not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any of the
constituent documents of the Selling Stockholder and (c) do not
violate the terms of any New York State or United States federal
law or regulation of the Delaware Partnership Act (but we express
no opinion with respect to United States federal securities laws or
any state securities or Blue Sky laws).
(v) Assuming the Underwriter acquires its interest in the Stock
to be sold by the Selling Stockholders to the Underwriter without
notice of any adverse claim (within the meaning of the Uniform
Commercial Code as in effect in the State of New York (the "UCC"))
and the Underwriter has paid the purchase price for such Stock and
has had such Stock credited to the securities account of the
Underwriter maintained with The Depository Trust Company, then the
Underwriter will have a securities entitlement (as defined in
Section 8-102(a)(17) of the UCC) to such Stock purchased by the
Underwriter and no action based on an adverse claim to such Stock
credited to such securities account, whether framed in conversion,
replevin, constructive trust, equitable lien or other theory, may
be asserted against the Underwriter.
In rendering such opinion, such counsel may (x) limit the opinion in
section 9(e)(iv) above to those documents received by counsel set forth in an
exhibit to the opinion (which constituent documents shall be certified as true,
complete and correct copies by the Selling Stockholders or their affiliates) and
(y) state that its opinion is limited to matters governed by the Federal laws of
the United States of America and the laws of the State of New York, the Delaware
Revised Uniform Limited Partnership Act and the General Corporation Law of
Delaware and that such counsel is not admitted in Delaware.
(f) The Underwriter shall have received from Xxxxxxx & Xxxxx
L.L.P., counsel for the Underwriter, such opinion or opinions, dated
such Delivery Date, with respect to the issuance and sale of the Stock,
the Registration Statement, the Prospectus and other related matters as
the Underwriter may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Underwriter
shall have received a letter from Deloitte & Touche LLP, in form and
substance satisfactory to the Underwriter, addressed to the Underwriter
and dated the date hereof (i) confirming that they are independent
public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as
of which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings.
(h) With respect to the letter of Deloitte & Touche LLP referred to
in the preceding paragraph and delivered to the Underwriter,
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Underwriter a letter
(the "bring-down letter"), addressed to the Underwriter and dated such
Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given
in the Prospectus, as of a date not more than five days prior to the
date of the bring-down letter), the conclusions and findings of such
firm with respect to the financial information and other matters
covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
(i) At each of the time of the execution of this Agreement and at
the Delivery Date, the Company shall have furnished to the Underwriter
a letter from XxXxxxxx and XxxXxxxxxxx addressed to the Underwriter and
dated the date hereof and dated the date of such Delivery Date,
respectively, confirming that they are or were independent engineers
with respect to the Company and stating, as of the date of such letter,
the conclusions and findings of such firm with respect to the
information and other matters covered by their letter delivered to the
Underwriter concurrently with the execution of this Agreement and
confirming in all material respects the conclusions and findings set
forth in such prior letter.
(j) The Company shall have furnished to the Underwriter, addressed
to the Underwriter, a certificate, dated such Delivery Date, of its
chief executive officer and its chief financial officer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 hereof are true and correct as of such
Delivery Date; the Company has complied with all its agreements
contained herein; and the conditions set forth in Sections 9(a) and
9(l) hereof have been fulfilled; and
(ii) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (A) as of the Effective
Date, the Registration Statement and Prospectus did not include any
untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and (B) since the Effective
Date no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the
Prospectus.
(k) Each Selling Stockholder (or any custodian or one or more
attorneys-in-fact on behalf of each Selling Stockholder) shall have
furnished to the Underwriter on the First Delivery Date a certificate,
dated the First Delivery Date, signed by, or on behalf of, the Selling
Stockholder (or any custodian or one or more attorneys-in-fact) stating
that the representations, warranties and agreements of the Selling
Stockholder contained herein are true and correct in all material
respects as of the First Delivery Date and that the Selling Stockholder
has complied with all agreements contained herein to be performed by
the Selling Stockholder at or prior to the First Delivery Date.
(l) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus or (ii) since such date there shall not have been any
change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity, prospects or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the
Underwriter, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Stock being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(m) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared
by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Underwriter,
impracticable or inadvisable to proceed with the public offering or
delivery of the Stock being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(n) To the extent required, the New York Stock Exchange shall have
approved the Stock for listing, subject only to official notice of
issuance.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless the Underwriter,
its officers and employees and each person, if any, who controls the
Underwriter within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action
in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Stock),
to which the Underwriter, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in (A) any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) in any materials or information provided to
investors by, or with the approval of, the Company in connection with
the marketing of the offering of the Stock ("Marketing Materials"),
including any roadshow or investor presentations made to investors by
the Company (whether in person or electronically); (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Marketing Materials any material fact
required to be stated therein or necessary to make the statements
therein not misleading; or (iii) any act or failure to act or any
alleged act or failure to act by the Underwriter in connection with, or
relating in any manner to, the Stock or the offering contemplated
hereby, and which is included as part of or referred to in any loss,
claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company shall
not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly
from any such acts or failures to act undertaken or omitted to be taken
by the Underwriter through its gross negligence or willful misconduct),
and shall reimburse the Underwriter and each such officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Underwriter, officer, employee or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning the Underwriter furnished to the Company through the
Underwriter by or on behalf of the Underwriter specifically for
inclusion therein which consists solely of information set forth in
Section 10(f) hereof; and provided further, however that the Company
shall not be liable to the Underwriter in any such case with respect to
any untrue statement or alleged untrue statement or omission or alleged
omission of a material fact in the Preliminary Prospectus to the extent
that the loss, claim, damage or liability of the Underwriter (or the
action in respect thereof) arises out of a sale by the Underwriter of
Stock to a person who was not sent or given, at or prior to the closing
of such sale to such person, a copy of the Prospectus as then amended
or supplemented, if the Company had previously furnished (or made
available) copies thereof to the Underwriter and the statement or
omission in question contained in the Preliminary Prospectus was
corrected therein. The foregoing indemnity agreement is in addition to
any liability which the Company may otherwise have to the Underwriter
or to any officer, employee or controlling person of the Underwriter.
(b) Each Selling Stockholder, severally and not jointly, shall
indemnify and hold harmless the Underwriter, its officers and
employees, and each person, if any, who controls the Underwriter within
the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Stock), to which the
Underwriter, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (1)
any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto or (2) the
omission or alleged omission to state in any Preliminary Prospectus,
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or
necessary to make the statements therein not misleading, in the case of
subparagraphs (1) and (2) of this Section to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon or in conformity
with written information furnished to the Company or the Underwriter by
such Selling Stockholder directly or through such Selling Stockholder's
representatives, specifically for use in the preparation thereof; and
shall reimburse the Underwriter, its officers and employees and each
such controlling person for any legal or other expenses reasonably
incurred by the Underwriter, its officers and employees or controlling
person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Selling
Stockholders shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any such amendment or
supplement in reliance upon and in conformity with written information
concerning the Underwriter furnished to the Company by or on behalf of
the Underwriter specifically for inclusion therein which consists
solely of the information specified in Section 10(f) hereof and
provided, further, that with respect to any Preliminary Prospectus, the
foregoing indemnity agreement shall not inure to the benefit of the
Underwriter from whom the person asserting any loss, claim, damage,
liability or expense purchased Stock, or any person controlling the
Underwriter, if copies of the Prospectus were timely delivered to the
Underwriter pursuant to this Agreement and a copy of the Prospectus (as
then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on
behalf of the Underwriter to such person, if required by law so to have
been delivered and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage,
liability or expense. However, in no event shall the Selling
Stockholder be liable under the provisions of this Section 10 for any
amount in excess of the total proceeds received by such Selling
Stockholder from the sale of the Stock by such Selling Stockholder
(after deducting commissions, but before taxes and any other expenses)
pursuant to this Agreement. The foregoing indemnity agreement is in
addition to any liability which the Selling Stockholders may otherwise
have to the Underwriter or any officer, employee or controlling person
of the Underwriter.
(c) The Underwriter shall indemnify and hold harmless the Company,
its officers and employees, each of its directors, and each person, if
any, who controls the Company within the meaning of the Securities Act,
and each Selling Stockholder and its officers and employees, each of
its directors, and each person if any, who controls the Selling
Stockholder within the meaning of the Securities Act from and against
any loss, claim, damage or liability, joint or several, or any action
in respect thereof, to which the Company or any such director, officer
or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto,
or in any Marketing Materials any material fact required to be stated
therein or necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning the
Underwriter furnished to the Company through the Underwriter by or on
behalf of the Underwriter specifically for inclusion therein, and shall
reimburse the Company, such Selling Stockholder and any such director,
officer or controlling person of the Company or the Selling Stockholder
for any legal or other expenses reasonably incurred by the Company,
such Selling Stockholder or any such director, officer or controlling
person of the Company or the Selling Stockholder in connection with
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which
the Underwriter may otherwise have to the Company, such Selling
Stockholder or any such director, officer, employee or controlling
person of the Company or the Selling Stockholder.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 10 except to the extent it has been materially prejudiced
by such failure; and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 10. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 10 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Underwriter shall have the
right to employ counsel to represent the Underwriter and its respective
officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be
sought by the Underwriter against the Company or any Selling
Stockholder under this Section 10 if, in the reasonable judgment of the
Underwriter, it is advisable for the Underwriter, officers, employees
and controlling persons to be jointly represented by separate counsel,
and in that event the fees and expenses of such separate counsel shall
be paid by the Company or Selling Stockholders. No indemnifying party
shall (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but
if settled with the consent of the indemnifying party or if there be a
final judgment of the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from
and against any loss or liability by reason of such settlement or
judgment.
(e) If the indemnification provided for in this Section 10 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a), 10(b) or 10(c) in respect of any
loss, claim, damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Selling Stockholders on the one hand
and the Underwriter on the other from the offering of the Stock or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Selling Stockholders on the one
hand and the Underwriter on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations; provided, the Selling Stockholders and the Underwriter
shall be obligated to contribute under this Section 10(e) only with
respect to losses, liabilities, claims, damages or expenses arising out
of an untrue statement or omission or alleged untrue statement or
omission of a material fact made in reliance upon and in conformity
with the information contained in Section 10(g) or Section 10(f),
respectively, hereunder. The relative benefits received by the Company
and the Selling Stockholders on the one hand and the Underwriter on the
other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock
purchased under this Agreement (before deducting expenses) received by
the Company and the Selling Stockholders, on the one hand, and the
total underwriting discounts and commissions received by the
Underwriter with respect to the shares of the Stock purchased under
this Agreement, on the other hand, bear to the total gross proceeds
from the offering of the shares of the Stock under this Agreement, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholders or the
Underwriter, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company, the Selling Stockholders and the
Underwriter agree that it would not be just and equitable if
contributions pursuant to this Section 10(e) were to be determined by
pro rata allocation or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to
above in this Section shall be deemed to include, for purposes of this
Section 10(e), 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
10(e), (i) the Underwriter shall not be required to contribute any
amount in excess of the amount by which the total price at which the
Stock underwritten by it and distributed to the public was offered to
the public exceeds the amount of any damages which the Underwriter has
otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission and (ii) no
Selling Stockholder shall be required to contribute any amount in
excess of the total proceeds received by such Selling Stockholder from
the offering of the Stock by such Selling Stockholder (after deducting
commissions, but before taxes and any other expenses). No person guilty
of fraudulent misrepresentation (within the meaning of Section 10(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(f) The Underwriter confirms and the Company acknowledges that the
statements with respect to the public offering of the Stock by the
Underwriter set forth on the cover page of, the name of the
Underwriters and its participation in the sale of Stock under the
caption "Underwriting" in, and the paragraphs addressing the
underwriting discount, concessions and reallowances, stabilization,
short positions, syndicate transactions and penalty bids appearing
under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information concerning the Underwriter furnished in
writing to the Company by or on behalf of the Underwriter specifically
for inclusion in the Registration Statement and the Prospectus.
11. [Section Intentionally Omitted]
12. Termination. The obligations of the Underwriter hereunder may be
terminated by the Underwriter by notice given to and received by the Company and
the Selling Stockholders prior to delivery of and payment for the Firm Stock if,
prior to that time, any of the events described in Sections 9(l) or 9(m) hereof,
shall have occurred or if the Underwriter shall decline to purchase the Stock
for any reason permitted under this Agreement.
13. Reimbursement of Underwriters' Expenses. If any Selling Stockholder
shall fail to tender the Stock for delivery to the Underwriter by reason of any
failure, refusal or inability on the part of the Company or any Selling
Stockholder to perform any agreement on its part to be performed, or because any
other condition of the Underwriter's obligations hereunder required to be
fulfilled by the Company or the Selling Stockholders is not fulfilled, the
Company will reimburse the Underwriter for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) incurred by the
Underwriter in connection with this Agreement and the proposed purchase of the
Stock, and upon demand the Company shall pay the full amount thereof to the
Underwriter. If this Agreement is terminated pursuant to Section 12 hereof by
reason of the default of the Underwriter, neither the Company nor the Selling
Stockholders shall be obligated to reimburse the Underwriter on account of those
expenses.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., Syndicate
Registration Department, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
(Fax: 000-000-0000), with a copy, in the case of any notice pursuant to
Section 8(c), to the Director of Litigation, Office of the General
Counsel, Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000;
(b) if to the Company, shall be delivered or sent by mail, telex,
facsimile transmission or recognized overnight delivery service to the
address of the Company set forth in the Registration Statement,
Attention: Xxxx Xxxxxxx (Fax: (000) 000-0000); and
(c) if to any Selling Stockholder, shall be delivered or sent by
mail, telex, facsimile transmission or recognized overnight delivery
service to such Selling Stockholder at the address set forth on
Schedule 2 hereto;
provided, however, that any notice to the Underwriter pursuant to Section 10(d)
above shall be delivered or sent by mail, telex, facsimile transmission or
recognized overnight delivery service to the Underwriter at its address set
forth in its acceptance telex to the Underwriter, which address will be supplied
to any other party hereto by the Underwriter upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof. The Company and the Selling Stockholders shall be entitled to act and
rely upon any request, consent, notice or agreement given or made on behalf of
the Underwriter by Xxxxxx Brothers Inc., and the Company and the Underwriter
shall be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Selling Stockholders by a custodian.
15. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriter, the Company, the
Selling Stockholders and their respective personal representatives and
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (A) the representations, warranties,
indemnities and agreements of the Company and the Selling Stockholders contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control the Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 10(c) of this Agreement shall be deemed to be for the benefit of
directors of the Company, directors or general partners of the Selling
Stockholders, as the case may be, officers of the Company who have signed the
Registration Statement and any person controlling the Company or a Selling
Stockholder within the meaning of Section 15 of the Securities Act. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 15, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
16. Survival. The respective indemnities, representations, warranties
and agreements of the Company, the Selling Stockholders and the Underwriter
contained in this Agreement or made by or on behalf on them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Stock and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
17. Definition of the Terms "Business Day" and "Subsidiary." For
purposes of this Agreement, (a) "business day" means any day on which the
American Stock Exchange is open for trading and (b) "subsidiary" has the meaning
set forth in Rule 405 of the Rules and Regulations.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement among the Company,
the Selling Stockholders and the Underwriter, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
Denbury Resources Inc.
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
The Selling Stockholders
named in Schedule 2 to this
Agreement:
TPG Partners, L.P.
By: TPG GenPar, L.P., general partner
By: TPG Advisors, Inc.,
general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
TPG Parallel I, L.P.
By: TPG GenPar, L.P., general partner
By: TPG Advisors, Inc.,
general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
TPG Partners II, L.P.
By: TPG GenPar II, L.P., general partner
By: TPG Advisors II, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
TPG Parallel II, L.P.
By: TPG GenPar II, L.P., general partner
By: TPG Advisors II, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
TPG Investors II, L.P.
By: TPG GenPar II, L.P., general partner
By: TPG Advisors II, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
TPG 1999 Equity Partners II, L.P.
By: TPG Advisors II, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Accepted:
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------------
Authorized Representative
SCHEDULE 1
-------------------------------------------------------------------------------------------------
Number of Shares of Option
Stock to be Purchased (if
Number of Shares of Firm Stock over-allotment option
Name of Underwriter to be Purchased exercised in full)
------------------- --------------- ------------------
Xxxxxx Brothers Inc............ 2,500,000 375,000
-------------------------------------------------------------------------------------------------
SCHEDULE 2
Number of Shares of Number of Shares of
Name and address of Selling Stockholder Firm Stock Option Stock
--------------------------------------- ------------------- -------------------
TPG Partners, L.P. 726,971 109,046
TPG Parallel I, L.P. 72,448 10,867
TPG Partners II, L.P. 1,448,931 217,339
TPG Parallel II, L.P. 98,879 14,832
TPG Investors II, L.P. 151,138 22,671
TPG 1999 Equity Partners II, L.P. 1,633 245
----- ---
Total 2,500,000 375,000
========= =======
(1) Each of these Selling Stockholders has granted the Underwriter a 30-day
option to purchase shares of Option Stock.
