EXHIBIT 1.1
8,500,000 SHARES
GLOBAL INDUSTRIES, LTD.
COMMON STOCK
UNDERWRITING AGREEMENT
March 21, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX & ASSOCIATES, INC.
CREDIT LYONNAIS SECURITIES (USA), INC.
HIBERNIA SOUTHCOAST CAPITAL, INC.
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Global Industries, Ltd., a Louisiana corporation
("COMPANY"), proposes to issue and sell 8,500,000 shares ("FIRM SECURITIES") of
its Common Stock, par value $0.01 per share ("SECURITIES"), and also proposes to
issue and sell to the Underwriters named in Schedule A ("UNDERWRITERS"), at the
option of the Underwriters, an aggregate of not more than 850,000 additional
shares ("OPTIONAL SECURITIES") of its Securities as set forth below. The Firm
Securities and the Optional Securities are herein collectively called the
"OFFERED SECURITIES". The Company hereby agrees with the Underwriters as
follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-86325), including a
prospectus, relating to the Offered Securities has been filed with the
Securities and Exchange Commission ("COMMISSION") and has become
effective. Such registration statement, as amended through the date
hereof, is hereinafter referred to as the "REGISTRATION STATEMENT", and
the prospectus included in such Registration Statement, as supplemented
to reflect the terms of offering of the Offered Securities, as first
filed with the Commission pursuant to and in accordance with Rule
424(b) ("RULE 424(b)") under the Securities Act of 1933 ("ACT"),
including all material incorporated by reference therein, is
hereinafter referred to as the "PROSPECTUS". No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
(b) On the effective date of the Registration Statement, the
Registration Statement conformed in all material respects to the
applicable requirements of the Act and the rules and regulations of the
Commission thereunder ("RULES AND REGULATIONS") and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and on the date hereof, the Registration
Statement and the Prospectus will conform
in all material respects to the applicable requirements of the Act and
the Rules and Regulations, and (i) the Registration Statement will not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) the Prospectus will not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the foregoing representation and
warranty does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Company by
any Underwriter through Credit Suisse First Boston Corporation
("CSFBC") specifically for use therein.
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act of 1934 ("EXCHANGE ACT"), as applicable,
and the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through CSFBC specifically for use in the Prospectus
as amended or supplemented. In connection with the foregoing, there are
no contracts or documents which are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits
thereto which have not been so described and filed or incorporated by
reference as required.
(d) The Company is subject to and in compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act and files reports with the Commission on the Electronic Data
Gathering, Analysis, and Retrieval (XXXXX) system.
(e) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Louisiana,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation and
is in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification, except where the failure to qualify or be in good
standing would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or other), business,
properties, results of operations of the Company and its subsidiaries
taken as a whole (a "MATERIAL ADVERSE EFFECT").
(f) Each subsidiary of the Company named in Annex A hereto
(the "SIGNIFICANT SUBSIDIARIES") has been duly incorporated or
organized and is an existing corporation, limited liability company or
other business entity in good standing under the laws of the
jurisdiction of its formation, with power and authority to own its
properties and conduct its business now being conducted and as
described in the Prospectus; and each Significant Subsidiary of the
Company is duly qualified to do business as a foreign corporation and
is in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification, except where the failure to qualify or be in good
standing would not, individually or in the aggregate, have a Material
Adverse Effect; all of the issued and outstanding capital stock of each
Significant Subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable and is owned by the
Company, directly or through its Significant Subsidiaries, free from
liens, encumbrances and defects, except as disclosed in the Prospectus
and restrictions imposed by the Act or applicable state securities
laws.
(g) The Company's Significant Subsidiaries owned in the
aggregate 90% of the consolidated assets of the Company and its
subsidiaries, taken as a whole, as of December 31, 2001 and had in the
aggregate more than 90% of the consolidated revenues of the Company and
its subsidiaries, taken as a whole, for the year ended December 31,
2001, in each case as determined in accordance with generally accepted
accounting principles in the United States.
(h) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement on each Closing Date (as defined below), such Offered
Securities will have been, validly issued, fully paid and nonassessable
and will conform in all material respects to the description thereof
contained in the Prospectus; and the stockholders of the Company have
no preemptive rights with respect to the Securities.
(i) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the offering of the Offered Securities.
(j) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be 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 Act except for the
Non-Competition and Registration Rights Agreement between the Company
and Xxxxxxx X. Xxxx, which is filed as Exhibit 10.7 to the Company's
Form 10-K for the fiscal year ended December 31, 2001. The Registration
Statement has been filed and the issuance and sale of the Offered
Securities pursuant to the Registration Statement have been made in
accordance with this agreement.
(k) The Company has given due notice to the Nasdaq Stock
Market of its subsequent listing of the Offered Securities for
quotation on the Nasdaq Stock Market's National Market, and the Nasdaq
Stock Market has not raised any issues with respect to such notice.
(l) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement
in connection with the issuance and sale of the Offered Securities by
the Company, except such as have been obtained and made under the Act
and such as may be required under state securities laws and except for
filing of the Prospectus pursuant to Rule 424(b).
(m) The execution, delivery and performance of this Agreement,
and the issuance and sale of the Offered Securities pursuant hereto
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) any statute, any
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, (ii) any
agreement or instrument to which the Company or any such subsidiary is
a party or by which the Company or any such subsidiary is bound or to
which any of the properties of the Company or any such subsidiary is
subject, or (iii) the charter or by-laws of the Company or any such
subsidiary, except for such breaches, violations or defaults that, in
the case of clause (i) and (ii) above, would not have a Material
Adverse Effect; the Company has full corporate power and authority to
authorize, issue and sell the Offered Securities as contemplated by
this Agreement.
(n) This Agreement has been duly authorized, executed and
delivered by the Company.
(o) Except as disclosed in the Prospectus, the Company and its
Significant Subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each
case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or
to be made thereof by them; and except as disclosed in the Prospectus,
the Company and its Significant Subsidiaries hold any leased real or
personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(p) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(q) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
is reasonably likely to have a Material Adverse Effect.
(r) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now
operated by them, or presently employed by them, other than those which
if not so owned or possessed would not, individually or in the
aggregate, have a Material Adverse Effect, and have not received any
notice of infringement of or conflict with asserted rights of others
with respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a Material Adverse Effect.
(s) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and to the knowledge of the
Company, there are no pending investigation which might lead to such a
claim.
(t) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that are
reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect, or would materially and adversely affect the ability of
the Company to perform its obligations under this Agreement, or which
are otherwise material in the context of the sale of the Offered
Securities; and to the Company's knowledge no such actions, suits or
proceedings are threatened or contemplated.
(u) The financial statements, including the notes thereto,
included in the Registration Statement and the Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown (including, without limitation, if
applicable any off balance sheet transactions and contingent
liabilities), and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis except as set forth in the
notes thereto.
(v) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(w) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(x) The Company has not taken and will not take, directly or
indirectly, any action designed to cause or result in, or which
constitutes or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Securities to
facilitate the sale of the Offered Securities.
(y) The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are
independent public accountants as required by the Act.
(z) None of the Company and its subsidiaries or, to the
knowledge of the Company after reasonable inquiry of its officers and
directors, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any subsidiary
has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity;
(ii) made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(aa) The Company is insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as the Company believes are prudent in light of the businesses
in which the Company is engaged.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $8.57 per share, the respective numbers
of shares of Firm Securities set forth opposite the names of the Underwriters in
Schedule A hereto.
The Company will deliver the Firm Securities to CSFBC for the accounts
of the Underwriters, against payment of the purchase price in Federal (same day)
funds by wire transfer to an account at a bank acceptable to CSFBC drawn to the
order of the Company, at the office of Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx &
Xxxxxx L.L.P., 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx, at 8:30 A.M., Houston,
Texas time, on March 27, 2002, or at such other time not later than seven full
business days thereafter as CSFBC and the Company determine, such time being
herein referred to as the "FIRST CLOSING DATE". For purposes of Rule 15c6-1
under the Securities Exchange Act of 1934, the First Closing Date (if later than
the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering. The certificates for the Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CSFBC may request upon at least 48 hours notice prior to the First
Closing Date and will be made available for checking and packaging in New York
City at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per share to be paid for the Firm Securities. The Company agrees
to sell to the Underwriters the number of shares of Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of shares of Firm Securities set forth opposite such Underwriter's name
bears to the total number of shares of Firm Securities (subject to adjustment by
CSFBC to eliminate fractions) and may be purchased by the Underwriters only for
the purpose of covering over-allotments made in connection with the sale of the
Firm Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and delivered.
The right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to CSFBC for
the accounts of the several Underwriters, against payment of the purchase price
therefor in Federal (same day) funds by checks or
wire transfer to an account at a bank acceptable to CSFBC drawn to the order of
the Company, at the above office of Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx &
Xxxxxx L.L.P. The certificates for the Optional Securities being purchased on
each Optional Closing Date will be in definitive form, in such denominations and
registered in such names as CSFBC requests upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging in
New York City at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with each
Underwriter that it will furnish to counsel for the Underwriters, one signed
copy of the Registration Statement, including copies of all exhibits, in the
form it became effective and of all amendments thereto and that, in connection
with the offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by CSFBC, Rule 424(b)(5)) not later than the second
business day following the execution and delivery of this Agreement.
(b) At any time when a Prospectus is required to be delivered
under the Act in connection with sales by any Underwriter or any
dealer, the Company will advise CSFBC promptly of any proposal to amend
or supplement the Registration Statement or the Prospectus and will
afford CSFBC a reasonable opportunity to comment on any such proposed
amendment or supplement; and at any time when a Prospectus is required
to be delivered under the Act in connection with sales by any
Underwriter or any dealer, the Company will also advise CSFBC promptly
of the filing of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in respect
of the Registration Statement or of any part thereof and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a Prospectus is required to be
delivered under the Act in connection with sales by any Underwriter or
any dealer, any event occurs as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act, the Company promptly will notify
CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment or supplement which
will effect such compliance. Neither CSFBC's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6
hereof.
(d) As soon as practicable, but not later than 16 months,
after the date of this Agreement, the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the Registration Statement, (ii) the effective date
of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of this Agreement and
(iii) the date of the Company's most recent Annual Report on Form 10-K
filed with the Commission prior to the date of this Agreement, which
will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Underwriters copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus or prospectus
supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as
CSFBC reasonably requests. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFBC designates and will continue such qualifications in effect so
long as required for completion of the distribution of the Offered
Securities, provided that the Company will not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any such state or subject itself to
taxation in any jurisdiction where it is not now so subject.
(g) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, for any filing
fees and other expenses (including fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as CSFBC designates and the
printing of memoranda relating thereto, for any travel expenses of the
Company's officers and employees and any other expenses of the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities and for expenses incurred in
distributing preliminary prospectuses or prospectus supplements and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(h) For a period of 60 days after the date hereof, the Company
will not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any additional shares of its
Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFBC, except for (1) issuances of
Securities pursuant to the conversion or exchange of convertible or
exchangeable securities or the exercise of warrants or options, in each
case outstanding on the date hereof or (2) grants of employee stock
options or securities pursuant to the terms of a plan in effect on the
date hereof.
(i) The Company will apply the net proceeds to the Company of
the offering and the sale of the Offered Securities in the manner set
forth in the Prospectus under the caption "Use of Proceeds."
6. Conditions to the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date of this Agreement, the
Underwriters shall have received a letter, dated the date of delivery
thereof, of Deloitte & Touche LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect
that:
(i) in their opinion the financial statements and any
schedules and any summary of earnings examined by them and
included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included in
the Registration Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements, if
any, and any summary of earnings included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial
statements and summary of earnings for them to be in
conformity with generally accepted accounting
principles;
(B) if any unaudited "capsule" information
is contained in the Prospectus, the unaudited
consolidated net sales, net operating income, net
income and net income per share amounts or other
amounts constituting such "capsule" information and
described in such letter do not agree with the
corresponding amounts set forth in the unaudited
consolidated financial statements or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of such letter, there
was any change in the capital stock or any increase
in current liabilities (including current maturities
of long-term debt) or long-term debt (excluding
current maturities) of the Company and its
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in consolidated
stockholders' equity, as compared with amounts shown
on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year, in
consolidated revenues, net operating income or per
share amounts of consolidated income before
extraordinary items or net income;
except in all cases set forth in clauses (C) and (D)
above for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or
which are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 5(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or either Underwriter, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries, taken as a whole, which, in the
judgment of a majority in interest of the Underwriters including CSFBC,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any change in U.S. or international
financial, political or economic conditions or currency exchange rates
or exchange controls as would, in the judgment of a majority in
interest of the Underwriters including CSFBC, be likely to prejudice
materially the success of the proposed issue, sale or distribution of
the Offered Securities, whether in the primary market or in respect of
dealings in the secondary market; (iv) any material suspension or
material limitation of trading in securities generally on the New York
Stock Exchange or the Nasdaq National Market, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the
over-the-counter market; (v) any banking moratorium declared by U.S.
Federal or New York authorities; (vi) any major disruption of
settlements of securities or clearance services in the United States;
or (vii) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency
if, in the judgment of a majority in interest of the Underwriters
including CSFBC, the effect of any such attack, outbreak, escalation,
act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Underwriters shall have received an opinion, dated
such Closing Date, of Xxxxxx & Xxxxxx L.L.P., counsel for the Company,
to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Louisiana, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus;
(ii) The Offered Securities delivered on the Closing
Date and all of the other outstanding shares of Common Stock
of the Company (other than shares issued pursuant to stock
option, stock purchase, or other plans registered with the
Commission, of which such counsel need express no opinion)
have been duly authorized and validly issued, are fully paid
and nonassessable and conform in all material respects to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no statutory or contractual
preemptive rights with respect to the Offered Securities;
(iii) There are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the 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 Act, other than the Securities held by
Xxxxxxx X. Xxxx, which rights have been waived in connection
with the Registration Statement and the issuance and sale of
the Offered Securities;
(iv) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the net proceeds thereof as described in the
Prospectus, will not be an "investment company" within the
meaning of the Investment Company Act of 1940;
(v) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance
or sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act and such as may
be required under state securities laws or by the bylaws or
regulations of the NASD;
(vi) The execution, delivery and performance of this
Agreement and the issuance and sale of the Offered Securities
by the Company will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under
(a) any statute, any rule, regulation (other than state
securities or blue sky laws or state or federal antifraud
laws, bylaws or rules of the
NASD, with respect to which no opinion need be given) or its
or their respective properties applicable to the Company or
any of its subsidiaries or its or their respective properties,
(b) any order of any governmental agency or body or any court
having jurisdiction over the Company or any subsidiary or any
of their properties known to such counsel to be applicable to
the Company or any of its U.S. subsidiaries, (c) any agreement
or instrument described in the Prospectus or filed as an
exhibit to or incorporated by reference into the Registration
Statement and to which the Company or any subsidiary is a
party or by which the Company or any subsidiary is bound or to
which any of the properties of the Company or any subsidiary
is subject, or (d) the charter, by-laws or similar
organizational documents of the Company or any U.S.
Significant Subsidiary; the Company has full corporate power
and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement;
(vii) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the knowledge
of such counsel, no stop order suspending the effectiveness of
the Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated under the Act, and the
Registration Statement, as of its effective date, the
Registration Statement and the Prospectus, as of the date of
this Agreement, and any amendment or supplement thereto, as of
its date, complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations;
each of the documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act,
as the case may be; the descriptions included or incorporated
by reference in the Registration Statement and the Prospectus
of statutes, legal and governmental proceedings and contracts
and other documents are accurate in all material respects; and
such counsel do not know of any legal or governmental
proceedings required to be described in the Registration
Statement or the Prospectus that are not described as required
or of any contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement that are
not described and filed as required; and
(viii) This Agreement has been duly authorized,
executed and delivered by the Company. Such opinion may be
limited to the laws of the State of Texas, the State of New
York, the Louisiana Business Corporation Act and federal laws
of the United States.
Such counsel shall also include in a separate paragraph of its opinion
or in a separate letter, statements to the following effect: Such counsel has
participated in conferences with officers and other representatives of the
Company, in-house counsel for the Company, representatives of the independent
public accountants of the Company, and your representatives, including your
counsel, at which the contents of the Registration Statement and the Prospectus
and related matters were discussed, and although such counsel did not verify
such information and is not passing on, and does not assume responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or Prospectus, on the basis of the foregoing in the
course of acting as counsel to the Company in this transaction, no facts have
come to such counsel's attention that have caused it to believe that (a) the
Registration Statement, at the time it became effective under the Act, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (b) the Prospectus as of the date of this Agreement or as of such
Closing Date contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Such counsel need express no view, belief or comment with respect to
the form, accuracy, completeness or fairness of the financial statements, notes
or schedules thereto, or other financial data or accounting information included
in the Registration Statement or the Prospectus.
(e) The Underwriters shall have received an opinion, dated
such Closing Date, of Xxxxxxx X. Xxxxxxxxxx, General Counsel to the
Company and qualified in the State of Louisiana, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Louisiana, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus;
(ii) The Company is duly qualified to do business as
a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification except
where the failure to be so qualified would not have a Material
Adverse Effect;
(iii) The Offered Securities delivered on the Closing
Date and the outstanding shares of Common Stock of the Company
issued pursuant to stock option, stock purchase, or other
plans registered with the Commission have been duly authorized
and validly issued, and are fully paid and nonassessable; and
the stockholders of the Company have no statutory or
contractual preemptive rights with respect to the Offered
Securities; and
(iv) Each U.S. Significant Subsidiary has been duly
organized and is validly existing as a corporation or limited
liability company and is in good standing under the laws of
the State of Louisiana. Each U.S. Significant Subsidiary has
the requisite corporate or limited liability company power to
own or lease its respective properties and to conduct its
business as described in the Prospectus.
(v) All the issued and outstanding capital stock of
each U.S. Significant Subsidiary of the Company has been duly
and validly issued and is fully paid and nonassessable and was
not issued in violation of any preemptive rights arising by
operation of law, under the limited liability company
agreement of such subsidiary or, to the knowledge of such
counsel, under any other agreement or instrument to which the
Company or such subsidiary is a party or by which it is bound.
Based upon such counsel's review of the limited liability
company agreements and records of such companies, the issued
and outstanding capital stock of each U.S. Significant
Subsidiary is owned directly or indirectly by the Company, and
to such counsel's knowledge and except as disclosed in the
Prospectus, is free and clear of liens, encumbrances, claims,
security interests or other restrictions on transfer.
Such opinion may be limited to the laws of the State of
Louisiana and federal laws of the United States.
(f) The Underwriters shall have received from Xxxxxxx & Xxxxx,
Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel for the Underwriters,
such opinion or opinions, dated such Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Securities
delivered on such Closing Date, the Registration Statement, the
Prospectus and other related matters as CSFBC may require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters. In
rendering such opinion, Xxxxxxx & Xxxxx, Mayor, Day, Xxxxxxxx & Xxxxxx
L.L.P. may rely as to the incorporation of the Company and certain
other matters under Louisiana law upon the opinion of counsel for the
Company referred to above.
(g) The Underwriters shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; and, subsequent to
the date of the most recent financial statements in the Prospectus,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth
or incorporated by reference in or contemplated by the Prospectus or as
described in such certificate.
(h) The Underwriters shall have received a letter, dated such
Closing Date, of Deloitte & Touche LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than three days prior to
such Closing Date for the purposes of this subsection.
(i) On or prior to the date of this Agreement, the
Underwriters shall have received lockup letters from each of the
executive officers and directors of the Company in the form attached as
Exhibit I hereto.
The Company will furnish CSFBC with such conformed copies of
such opinions, certificates, letters and documents as CSFBC reasonably requests.
CSFBC may in its sole discretion waive on behalf of the Underwriters compliance
with any conditions to the obligations of the Underwriters hereunder, whether in
respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or prospectus supplement, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
CSFBC specifically for use therein, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information
described as such in subsection (b) below; and provided, further, that with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary prospectus supplement the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to the Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person a copy of the
Prospectus (including the final prospectus supplement) if the Company had
previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, its directors and officers and each
person, if any who controls the Company within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities to
which any of them may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or prospectus
supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through CSFBC specifically
for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred, it being understood and agreed that the only
such information furnished by any Underwriter consists of the following
information furnished on behalf of each Underwriter: (i) the concession
and reallowance figures appearing in the fourth paragraph under the
caption "Underwriting," (ii) the information contained in the second
sentence of the sixth paragraph
(relating to Rule 2710 of the NASD Conduct Rules) under caption
"Underwriting," (iii) the information contained in the eleventh
paragraph (relating to stabilizing transactions) under the caption
"Underwriting," (iv) the information contained in the final paragraph
(relating to online distributions) under the caption "Underwriting,"
and (v) the information contained in the second sentence of the
paragraph under the caption "Notice to Canadian Residents --
Relationship with Affiliates of Certain Underwriters."
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above, unless and to the extent it did not
otherwise learn of such action and such failure results in the loss by
the indemnifying party of substantial rights or defenses. In case any
such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that
it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any
legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Securities
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 on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 7 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company, to each officer of the Company who has
signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the other Underwriters, but if no
such arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the number of shares of Offered Securities with
respect to which such default or defaults occur exceeds 10% of the total number
of shares of Offered Securities that the Underwriters are obligated to purchase
on such Closing Date and arrangements satisfactory to CSFBC and the Company for
the purchase of such Offered Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Company, except as provided in
Section 9 (provided that if such default occurs with respect to Optional
Securities after the First Closing Date, this Agreement will not terminate as to
the Firm Securities or any Optional Securities purchased prior to such
termination). As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (iii), (iv), (v), (vi) or (vii) of Section 6(c),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or faxed and confirmed to
CSFBC at Credit Suisse First Boston Corporation, Eleven Madison Avenue, New
York, N.Y. 10010-3629, Attention: Transactions Advisory Group (fax:
000-000-0000), or, if sent to the Company, will be mailed, delivered or faxed
and confirmed to it at 0000 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000, Attention:
Senior Vice President & General Counsel (fax: (000) 000-0000); provided,
however, that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or faxed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. CSFBC will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by CSFBC will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
[Reminder of page left blank intentionally]
If the foregoing is in accordance with CSFBC's understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the
Underwriters in accordance with its terms.
Very truly yours,
GLOBAL INDUSTRIES, LTD.
By: /s/ Xxxxxxx X. Xxxx'
--------------------------------------------------
Xxxxxxx X. Xxxx'
Chairman of the Board and Chief Executive Officer
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX & ASSOCIATES, INC.
CREDIT LYONNAIS SECURITIES (USA), INC.
HIBERNIA SOUTHCOAST CAPITAL, INC.
Acting on behalf of themselves and as the Representatives of the
several Underwriters.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Title: Managing Director
-----------------------------------------------
EXHIBIT 1
NUMBER OF
UNDERWRITER FIRM SECURITIES
--------------------------------------------------- --------------------------
Credit Suisse First Boston Corporation 4,930,000 Shares
Xxxxxxx Xxxxx & Associates, Inc. 2,635,000
Credit Lyonnais Securities (USA) Inc. 467,500
Hibernia Southcoast Capital, Inc. 467,500
-----------
Total 8,500,000 Shares
EXHIBIT 1
March 13, 2002
Global Industries, Ltd.
0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx & Associates, Inc.
Credit Lyonnais Securities (USA), Inc.
Hibernia Southcoast Capital, Inc.
As Representatives of the Several Underwriters to be named
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriters to execute the
Underwriting
Agreement, pursuant to which an offering will be made that is intended to result
in an orderly market for the common stock, par value $0.01 per share (the
"SECURITIES") of Global Industries, Ltd., a Louisiana corporation, and any
successor (by merger or otherwise) thereto (the "COMPANY"), the undersigned
hereby agrees that from the date hereof and until 60 days after the public
offering date set forth in the prospectus supplement used to sell to the
Securities (the "PUBLIC OFFERING DATE") pursuant to the
Underwriting Agreement
to which you are or expect to become parties, the undersigned will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
any shares of Securities or securities convertible into or exchangeable or
exercisable for any shares of Securities, enter into any transaction that would
have the same effect, or enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences of ownership of
the Securities, whether any such aforementioned transaction is to be settled by
delivery of the Securities or such other securities, in cash or otherwise, or
publicly disclose the intention to make any such offer, sale, pledge or
disposition, or to enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of Credit Suisse
First Boston Corporation. In addition, the undersigned agrees that, without the
prior written consent of Credit Suisse First Boston Corporation, it will not,
during the period commencing on the date hereof and ending 60 days after the
Public Offering Date, make any demand for or exercise any right with respect to,
the registration of any Securities or any security convertible into or
exercisable or exchangeable for the Securities.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to the terms and conditions of this letter
agreement (the "AGREEMENT"). Any Securities acquired by the undersigned in the
open market will not be subject to this Agreement. A transfer of Securities to a
family member or trust may be made, provided the transferee agrees to be bound
in writing by the terms of this Agreement prior to such transfer.
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void if the Public Offering Date shall not have
occurred before April 30, 2002.
Very truly yours,
Signature:
--------------------------------------
Print Name:
-------------------------------------
ANNEX A
Significant Subsidiaries
Global Divers and Contractors, LLC
Global Pipelines PLUS, LLC
Pipelines, Inc.
Global Movible Offshore, LLC
Global Industries Offshore, LLC
Xxxxxx Offshore Pipelines, LLC
GIL Holdings, LLC
Global Offshore International Ltd. (Cayman)
Global Offshore International, LLC
Global International Vessels Ltd. (Cayman)
Global Industries Mexico Holdings S. de X.X. de C.V. (Mexico)
All Significant Subsidiaries listed in this Annex A except for Global Offshore
International Ltd. (Cayman), Global International Vessels Ltd. (Cayman) and
Global Industries Mexico Holdings S. de X.X. de C.V. (Mexico) shall be
designated as the "U.S. Significant Subsidiaries."
