TRICO MARINE SERVICES, INC.
2,000,000 Shares
Common Stock
(Par Value $.01 Per Share)
_______________
UNDERWRITING AGREEMENT
New York, New York
__________ ___, 1996
XXXXXXXX XXXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXXX & COMPANY INTERNATIONAL
As Representatives of the several
Underwriters named in Schedule I hereto
c/x Xxxxxxxx Xxxxxxxx & Co. Incorporated
Equitable Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Trico Marine Services, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated
herein, to issue and sell, and certain shareholders of the
Company (named in Schedule II attached hereto the "Firm Selling
Shareholders") propose to sell, to the Underwriters named in
Schedule I hereto (the "Underwriters"), an aggregate of
2,000,000 shares of Common Stock, par value $.01 per share (the
"Common Stock"). The 2,000,000 shares of Common Stock to be sold
by the Company and the Firm Selling Shareholders are herein
referred to as the "Firm Securities." In addition, certain other
shareholders of the Company (named in Schedule III attached
hereto, the "Management Shareholders," together with the Firm
Selling Shareholders, the "Option Shareholders") and the Firm
Selling Shareholders propose to grant to the Underwriters an
option to purchase up to an additional 300,000 shares of Common
Stock (the "Option Securities"), on the terms and for the
purposes set forth in Section 2 hereof. The Firm Securities and
the Option Securities are herein collectively referred to as the
"Securities." Except as may be expressly set forth below, any
reference to you in this Agreement shall be solely in your
capacity as the Representatives.
1. The Company represents and warrants to, and agrees
with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File
No. 333-_____), and as a part thereof a preliminary
prospectus, in respect of the Securities, has been filed
with the Securities and Exchange Commission (the
"Commission") in the form heretofore delivered to you and,
with the exception of exhibits to the registration
statement, to you for each of the other Underwriters; if
such registration statement has not become effective, an
amendment (the "Final Amendment") to such registration
statement, including a form of final prospectus, necessary
to permit such registration statement to become effective,
will promptly be filed by the Company with the Commission;
if such registration statement has become effective and any
post-effective amendment to such registration statement has
been filed with the Commission prior to the execution and
delivery of this Agreement, which amendment or amendments
shall be in form acceptable to you, the most recent such
amendment has been declared effective by the Commission; if
such registration statement has become effective, a final
prospectus relating to the Securities containing information
permitted to be omitted at the time of effectiveness by
Rule 430A or Rule 434(d) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the
"Act"), will promptly be filed by the Company pursuant to
Rule 424(b) of the rules and regulations of the Commission
under the Act (any preliminary prospectus filed as part of
such registration statement being herein called a
"Preliminary Prospectus," such registration statement as
amended at the time that it becomes or became effective, or,
if applicable, as amended at the time the most recent post-
effective amendment to such registration statement filed
with the Commission prior to the execution and delivery of
this Agreement became effective (the "Effective Date"),
including all exhibits thereto and all information deemed to
be a part thereof at such time pursuant to Rule 430A of the
rules and regulations of the Commission under the Act, or if
the Company elects to rely upon Rule 434 of the rules and
regulations of the Commission, then all references to such
registration statement shall include the final or
preliminary prospectus and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may
be, in the form first furnished to the Underwriters by the
Company in reliance upon Rule 434 of the rules and
regulations of the Commission, being herein called the
"Registration Statement" and the final prospectus relating
to the Securities in the form first filed pursuant to
Rule 424(b)(1) or (4) of the rules and regulations of the
Commission under the Act or, if no such filing is required,
the form of final prospectus included in the Registration
Statement, being herein called the "Prospectus");
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission,
and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder, and did 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, in the light of the circumstances under
which they were made, 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 you expressly for use
therein;
(c) On the Effective Date and the date the Prospectus
is filed with the Commission, and when any further amendment
or supplements thereto become effective or are filed with
the Commission, as the case may be, the Registration
Statement, the Prospectus or such amendment or supplements,
as the case may be, did and will conform in all material
respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not and
will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein
or necessary 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 you
expressly for use therein;
(d) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and to conduct its business
as described in the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and
is in good standing under the laws of each other
jurisdiction in which it owns or leases property, or
conducts any business, so as to require such qualification
(except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or the business affairs or prospects of the
Company and its subsidiaries, taken as a whole); and each of
the Company's subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with corporate
power and authority to own its properties and to conduct its
business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each
other jurisdiction in which it owns or leases property, or
conducts any business, so as to require such qualification
(except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or the business affairs or prospects of the
Company and its subsidiaries, taken as a whole);
(e) All the issued shares of capital stock of each
subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable
and, except as otherwise set forth in the Prospectus and the
Company's 40% equity interest in Xxxxxx Servicos Maritimos
Ltda., a Brazilian limitada, are owned by the Company free
and clear of all liens, encumbrances, equities, security
interests, or claims; and there are no outstanding options,
warrants or other rights calling for the issuance of, and
there are no commitments, plans or arrangements to issue,
any shares of capital stock of any subsidiary or any
security convertible or exchangeable or exercisable for
capital stock of any subsidiary; except for the shares of
stock of each subsidiary owned by the Company, neither the
Company nor any subsidiary owns, directly or indirectly, any
shares of capital stock of any corporation or have any
equity interest in any firm, partnership, joint venture or
other entity;
(f) The Company has all corporate power and authority
to execute, deliver and perform its obligations under this
Agreement; the execution, delivery and performance by the
Company of its obligations under this Agreement have been
duly and validly authorized by all requisite corporate
action of the Company; and this Agreement constitutes the
legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms
except as enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to
or affecting the rights of creditors generally, by general
principles of equity and, with respect to Section 8 hereof,
by public policy underlying the federal or state securities
laws;
(g) Neither the Company nor any of its subsidiaries has
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, which loss or interference is material to
the Company and its subsidiaries, taken as a whole; and,
since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has
not been, and prior to the Time of Delivery (as defined in
Section 4 hereof) there will not be, any change in the
capital stock (other than shares issued pursuant to the
exercise of employee stock options that the Prospectus
indicates are outstanding (the "Employee Option Shares") or
short-term debt or long-term debt of the Company or any of
its subsidiaries (excluding changes in the amount of
indebtedness outstanding under the Company's Bank Credit
Facility (as defined in the Registration Statement) which
are incurred for the acquisition of vessels or working
capital purposes), or any material adverse change, or any
development involving a prospective material adverse change,
in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the
Prospectus;
(h) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good
and marketable title to all personal property owned by them,
in each case free and clear of all liens, encumbrances and
defects except such as are described or contemplated by the
Prospectus, or such as do not materially affect the value of
such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries, and any real property 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 real property and
buildings by the Company and its subsidiaries;
(i) The Company has an authorized, issued and
outstanding capitalization as set forth in the Registration
Statement, and all the issued shares of capital stock of the
Company have been duly and validly authorized and issued,
are fully paid and non-assessable, are free of any
preemptive rights, rights of first refusal or similar
rights, were issued and sold in compliance with the
applicable Federal and state securities laws and conform in
all material respects to the description in the Prospectus;
except as described in the Prospectus, there are no
outstanding options, warrants or other rights calling for
the issuance of, and there are no commitments, plans or
arrangements to issue, any shares of capital stock of the
Company or any security convertible or exchangeable or
exercisable for capital stock of the Company; there are no
holders of securities of the Company who, by reasons of the
filing of the Registration Statement have the right (and
have not waived such right) to request the Company to
include in the Registration Statement securities owned by
them;
(j) The Securities to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly
issued, fully paid and non-assessable, and will conform in
all material respects to the description thereof in the
Prospectus and will be quoted on the NASDAQ National Market
as of the Effective Date;
(k) The performance of this Agreement, the consummation
of the transactions herein contemplated and the issue and
sale of the Securities and the compliance by the Company
with all the provisions of this Agreement will not conflict
with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge, claim, or
encumbrance upon, any of the property or assets of the
Company or any of its subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the
provisions of the Certificate of Incorporation or the By-
Laws, in each case as amended to the date hereof, 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; and no
consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body is required for the issue and sale of the Securities or
the consummation of the other transactions contemplated by
this Agreement, except the registration under the Act of the
Securities, and such consents, approvals, authorizations,
registrations or qualifications as may be required under
state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriters;
(l) There are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries or
any of their respective officers or directors is a party or
of which any property of the Company or any of its
subsidiaries is the subject, other than litigation or
proceedings incident to the business conducted by the
Company and its subsidiaries which will not individually or
in the aggregate have a material adverse effect on the
current or future financial position, stockholders' equity
or results of operations 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 or
contemplated by others;
(m) The Company and its subsidiaries have such
licenses, permits and other approvals or authorizations of
and from governmental or regulatory authorities ("Permits")
as are necessary under applicable law to own their
respective properties and to conduct their respective
businesses in the manner now being conducted and as
described in the Prospectus; and the Company and its
subsidiaries have fulfilled and performed all of their
respective obligations with respect to such Permits, and no
event has occurred which allows, or after notice or lapse of
time or both would allow, revocation or termination thereof
or result in any other impairment of the rights of the
holder of any such permits where such revocation,
termination or impairment would have a material adverse
effect on the current or future financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole;
(n) Coopers & Xxxxxxx L.L.P. who have certified certain
financial statements of the Company and its consolidated
subsidiaries and delivered their report with respect to the
audited consolidated financial statements and schedules
included in the Registration Statement and the Prospectus,
are independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder;
(o) The consolidated financial statements and schedules
of the Company and its subsidiaries included in the
Registration Statement and the Prospectus present fairly the
financial condition, the results of operations and the cash
flows of the Company and its subsidiaries as of the dates
and for the periods therein specified in conformity with
generally accepted accounting principles consistently
applied throughout the periods involved, except as otherwise
stated therein; and the other financial and statistical
information and data set forth in the Registration Statement
and the Prospectus is accurately presented and, to the
extent such information and data is derived from the
financial statements and books and records of the Company
and its subsidiaries, is prepared on a basis consistent with
such financial statements and the books and records of the
Company and its subsidiaries; no other financial statements
or schedules are required to be included in the Registration
Statement and the Prospectus;
(p) There are no statutes or governmental regulations,
or any contracts or other documents that are required to be
described in or filed as exhibits to the Registration
Statement which are not described therein or filed as
exhibits thereto; and all such contracts to which the
Company or any subsidiary is a party have been duly
authorized, executed and delivered by the Company or such
subsidiary, constitute valid and binding agreements of the
Company or such subsidiary and are enforceable against the
Company or subsidiary in accordance with the terms thereof;
(q) Neither the Company nor any of and its subsidiaries
are in violation of any term or provision of its Certificate
of Incorporation or By-Laws (or similar corporate
constituent documents), in each case as amended to the date
hereof; nor are the Company or any of its subsidiaries in
violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or
any of its subsidiaries, or of any decree of any court or
governmental agency or body having jurisdiction over the
Company or any of its subsidiaries where such violation
would have a material adverse effect on the current or
future financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, taken as
a whole;
(r) No default exists, and no event has occurred which
with notice or lapse of time, or both, would constitute a
default in the due performance and observance of any term,
covenant or condition of any indenture, mortgage, deed of
trust, bank loan or credit agreement, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them or their
respective properties is bound or may be affected where such
default would have a material adverse effect on the current
or future financial position, stockholders' equity or
results of operations of the Company and its subsidiaries,
taken as a whole;
(s) The Company and its subsidiaries have timely filed
all necessary tax returns and notices and have paid all
federal, state, county, local and foreign taxes of any
nature whatsoever for all tax years through December 31,
1995, to the extent such taxes have become due. The Company
has no knowledge, or any reasonable grounds to know, of any
tax deficiencies which would have a material adverse effect
on the Company or any of its subsidiaries; the Company and
its subsidiaries have paid all taxes which have become due,
whether pursuant to any assessments, or otherwise, and there
is no further liability (whether or not disclosed on such
returns) or assessments for any such taxes, and no interest
or penalties accrued or accruing with respect thereto,
except as may be set forth or adequately reserved for in the
financial statements included in the Registration Statement;
the amounts currently set up as provisions for taxes or
otherwise by the Company and its subsidiaries on their books
and records are sufficient for the payment of all their
unpaid federal, foreign, state, county and local taxes
accrued through the dates as of which they speak, and for
which the Company and its subsidiaries may be liable in
their own right, or as a transferee of the assets of, or as
successor to any other corporation, association,
partnership, joint venture or other entity;
(t) The Company will not, during the period of 120 days
after the date hereof except pursuant to this Agreement,
offer, sell, contract to sell or otherwise dispose of any
capital stock of the Company (or securities convertible
into, or exchangeable for, capital stock of the Company),
directly or indirectly, without the prior written consent of
the Representatives of the Underwriters except for grants
under the Company's 1993 Stock Option Plan and the
1996 Incentive Compensation Plan and the issuance of stock
upon the exercise of any options granted thereunder;
(u) The Company and its subsidiaries maintain a system
of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in
accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity
with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets
is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to
any differences;
(v) Neither the Company nor any of its subsidiaries is
in violation of any foreign, federal, state or local law or
regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants, nor any federal or state
law relating to discrimination in the hiring, promotion or
paying of employees nor any applicable federal or state
wages and hours laws, nor any provisions of the Employee
Retirement Income Security Act of 1974, as amended, or the
rules and regulations promulgated thereunder, where such
violation would have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(w) None of the Company or its subsidiaries, or its
officers, directors, employees or agents has used any
corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to
political activity, or made any unlawful payment of funds of
the Company or any subsidiary or received or retained any
funds in violation of any law, rule or regulation;
(x) None of the Company or its subsidiaries, or its
officers, directors, employees or agents have taken or will
take, directly or indirectly, any action designed to or
which has constituted or that might be reasonably be
expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate
the sale or resale of the Securities;
(y) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an
"investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the
Investment Company Act of 1940, as amended;
(z) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes;
(27) The Company and its subsidiaries have in effect
with insurers of recognized financial responsibility
insurance against such losses and risks and in amounts that
the Company reasonably are adequate in light of the business
conducted by the Company and its subsidiaries;
(28) Neither the Company nor any of its subsidiaries is
party to any union or collective bargaining agreements, and
no labor disturbance, strike or slowdown exists, or, to the
Company's knowledge, is threatened, by or involving any
employees of the Company or its subsidiaries, in any such
case that is or would be reasonably likely to have a
material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole;
(29) The statements set forth in the Prospectus under
the caption "Description of Capital Stock," insofar as they
purport to constitute a summary of the terms of the Common
Stock, are, in all material respects, accurate and complete;
and
(30) The Company and any of its subsidiaries that owns
the marine vessels described in the Prospectus (the
"Vessels"), which operate in United States coastwise trade,
are and at all times have been citizens of the United States
within the meaning of Section 2 of the Shipping Act of 1916,
as amended, 46 U.S.C. 802 (the "Shipping Act"), and
qualified to engage in coastwise trade. At no time during
the Company or any subsidiary's ownership of the Vessels
have any of the Vessels been sold, chartered or otherwise
transferred to any person or entity in violation of any
applicable laws, rules or regulations. Except as set forth
of Schedule IV, each Vessel has clean certificate of
inspection from the United States Coast Guard and an
American Bureau of Shipping load line certificate where
applicable, in each case free of reported or reportable
exceptions or notations of record.
1.A. Each of the Option Shareholders severally and not
jointly represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Such Option Shareholder has all requisite power,
authority, authorizations, approvals, orders and consents to
enter into this Agreement and to carry out the provisions
and conditions hereof and in the event that such Option
Shareholder is a corporation, such Option Shareholder has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation; in the event that such
Option Shareholder is a limited partnership, such Option
Shareholder has been duly formed and is validly existing as
a limited partnership in good standing under the laws of the
jurisdiction of its formation.
(b) Each of this Agreement, the Custody Agreement (a
form of which is attached hereto as Exhibit A) and the Power
of Attorney (a form of which is attached hereto as
Exhibit B) has been duly authorized, executed and delivered
by or on behalf of such Option Shareholder and constitutes a
legal, valid and binding agreement of such Option
Shareholder and is enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to
or affecting the rights of creditors generally and by
general principles of equity and, with respect to Section 8
hereof, by public policy under federal and state securities
laws.
(c) On the closing date for the Securities, all stock
transfer or other taxes (other than income taxes) which are
required to be paid in connection with the sale and transfer
of the Securities to be sold by such Option Shareholder to
the Underwriters will have been fully paid or provided for
by such Option Shareholder and all laws imposing such taxes
will have been fully complied with.
(d) The performance of this Agreement and the
consummation of the transactions contemplated hereby will
not result in the creation or imposition of any lien, charge
or encumbrance upon any of the assets of such Option
Shareholder pursuant to the terms or provisions of, or
result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the acceleration of
any obligation under the articles of association or charter
or bylaws of such Option Shareholder, if applicable, or any
contract or other agreement to which such Option Shareholder
is a party or bound, or under any law, order, statute,
regulation, consent or memorandum of understanding
applicable to such Option Shareholder of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Option Shareholder
or the property of such Option Shareholder.
(e) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation by the Option Shareholder of the transactions
on its part contemplated hereby, except such as have been
obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the
purchase and distribution by the Underwriters of the Shares
to be sold by the Option Shareholder or such as may be
required by the National Association of Securities Dealers,
Inc. (the "NASD").
(f) As of the date hereof, and as of each of the Time
of Delivery (defined below) and the Option Securities
Delivery Date (defined below), all information with respect
to the Option Shareholder contained in the Registration
Statement and the Prospectus complied and will comply with
all applicable provisions of the Act and the rules and
regulations of the Commission, contained and will contain
all statements required to be stated therein in accordance
with the Act and the rules and regulations of the
Commission, and did not and will not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to
make the statements therein not misleading.
(g) The Option Shareholder has not distributed and,
prior to the later to occur of (i) the Time of Delivery,
(ii) the Option Securities Delivery Date or (iii) completion
of the distribution of the Securities, will not distribute
without your prior written consent any offering material in
connection with the offering and sale of the Securities
other than as permitted by the Act.
(h) The Option Shareholder now has, and at each of the
Time of Delivery and the Option Securities Delivery Date
will have, good and valid title to the Securities to be sold
by such Option Shareholder hereto, free and clear of all
security interests, liens, encumbrances, equities or other
claims, and, upon delivery of and payment for such
Securities, the Option Shareholder will deliver to the
Underwriter, good and valid title to such Securities, free
and clear of all security interests, liens, encumbrances,
equities or other claims.
2. Subject to the terms and conditions herein set forth,
the Company agrees to issue and sell, and the Firm Selling
Shareholders agree to sell, to the several Underwriters an
aggregate of 2,000,000 Firm Securities (650,000 shares of such
Firm Securities will be sold by the Company and 1,350,000 shares
of such Firm Securities will be sold by the Firm Selling
Shareholders), and each of the Underwriters agrees to purchase
from the Company and the Firm Selling Shareholders, at a purchase
price of $_____ per share, the respective aggregate number of
Firm Securities determined in the manner set forth below. The
obligation of each Underwriter to the Company and the Firm
Selling Shareholders shall be to purchase that portion of the
number of shares of Common Stock to be sold by the Company and
the Firm Selling Shareholders pursuant to this Agreement as the
number of Firm Securities set forth opposite the name of such
Underwriter on Schedule I bears to the total number of Firm
Securities to be purchased by the Underwriters pursuant to this
Agreement, in each case adjusted by you such that no Underwriter
shall be obligated to purchase Firm Securities other than in
100 share amounts. In making this Agreement, each Underwriter is
contracting severally and not jointly.
In addition, subject to the terms and conditions herein set
forth, the Option Shareholders agree to sell, to the
Underwriters, as required (for the sole purpose of covering over-
allotments in the sale of the Firm Securities), up to
300,000 Option Securities at the purchase price per share of the
Firm Securities being sold by the Company and the Firm Selling
Shareholders as stated in the preceding paragraph (with any
Option Securities sold to the Underwriters pursuant to this
paragraph being sold in accordance with the procedures listed on
Schedule V attached hereto). The right to purchase the Option
Securities may be exercised by your giving 48 hours' prior
written or telephonic notice (subsequently confirmed in writing)
to the Company and the Option Shareholders of your determination
to purchase all or a portion of the Option Securities. Such
notice may be given at any time within a period of 30 days
following the date of this Agreement. Option Securities shall be
purchased severally for the account of each Underwriter in
proportion to the number of Firm Securities set forth opposite
the name of such Underwriter in Schedule I hereto. No Option
Securities shall be delivered to or for the accounts of the
Underwriters unless the Firm Securities shall be simultaneously
delivered or shall theretofore have been delivered as herein
provided. The respective purchase obligations of each
Underwriter shall be adjusted by you so that no Underwriter shall
be obligated to purchase Option Securities other than in 100
share amounts. The Underwriters may cancel any purchase of
Option Securities at any time prior to the Option Securities
Delivery Date (as defined in Section 4 hereof) by giving written
notice of such cancellation to the Company.
3. The Underwriters propose to offer the Securities for
sale upon the terms and conditions set forth in the Prospectus.
4. Certificates in definitive form for the Firm Securities
to be purchased by each Underwriter hereunder shall be delivered
by or on behalf of the Company and the Firm Selling Shareholders
to you for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor
by certified or official bank check or checks, payable in New
York Clearing House funds, (or, if the Underwriters and the
Company agree, by means of a wire transfer of same-day funds in
accordance with written instructions from the Company pursuant to
which the Company will reimburse the Underwriters for their costs
of obtaining such same-day funds) to the order of the Company and
the Firm Selling Shareholders, as appropriate, for the purchase
price of the Firm Securities being sold by the Company and the
Firm Selling Shareholders at the office of Xxxxxxxx Xxxxxxxx &
Co. Incorporated, Equitable Center, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, at 9:30 a.m., New York City time, on __________ ___,
1996, or at such other time, date and place as you and the
Company may agree upon in writing, such time and date being
herein called the "Time of Delivery."
Certificates in definitive form for the Option Securities to
be purchased by each Underwriter hereunder shall be delivered by
or on behalf of the Option Shareholders to you for the account of
such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price thereof by certified or official
bank check or checks, payable in New York Clearing House funds,
to the order of the respective Option Shareholders, for the
purchase price of the Option Securities, in New York, New York,
at such time and on such date (not earlier than the Time of
Delivery nor later than ten business days after giving of the
notice delivered by you to the Company with reference thereto)
and in such denominations and registered in such names as shall
be specified in the notice delivered by you to the Company and
the Option Shareholders with respect to the purchase of such
Option Securities. The date and time of such delivery and
payment are herein sometimes referred to as the "Option
Securities Delivery Date." The obligations of the Underwriters
shall be subject, in their discretion, to the condition that
there shall be delivered to the Underwriters on the Option
Securities Delivery Date opinions and certificates, dated such
Option Securities Delivery Date, referring to the Option
Securities, instead of the Firm Securities, but otherwise to the
same effect as those required to be delivered at the Time of
Delivery pursuant to Sections 7(d), 7(e), 7(f) and 7(i).
Certificates for the Firm Securities and the Option
Securities so to be delivered will be in good delivery form, and
in such denominations and registered in such names as you may
request not less than 48 hours prior to the Time of Delivery and
the Option Securities Delivery Date, respectively. Such
certificates will be made available for checking and packaging in
New York, New York, at least 24 hours prior to the Time of
Delivery and Option Securities Delivery Date.
5. The Company covenants and agrees with each of the
Underwriters:
(a) If the Registration Statement has not become
effective, to file promptly the Final Amendment with the
Commission and use its best efforts to cause the
Registration Statement to become effective; if the
Registration Statement has become effective, to comply with
the requirements of Rule 430A and/or Rule 434 of the rules
and regulations of the Commission; to make no further
amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you after
reasonable notice thereof; to advise you, promptly after it
receives notice thereof of the time when the Registration
Statement, or any amendment thereto, or any amended
Registration Statement has become effective or any
supplement to the Prospectus or any amended Prospectus has
been filed, 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 Securities 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 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 withdrawal of such order;
(b) Promptly from time to time to take such action as
you may request to qualify the Securities for offering and
sale under the securities laws of such jurisdictions as you
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, 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;
(c) To furnish each of the Representatives and counsel
for the Underwriters, without charge, signed copies of the
registration statement originally filed with respect to the
Securities and each amendment thereto (in each case
including all exhibits thereto) and to each other
Underwriter, without charge, a conformed copy of such
registration statement and each amendment thereto (in each
case without exhibits thereto) and, prior to 9:00 a.m., New
York City time, on the business day next succeeding the date
of this Agreement and from time to time so long as a
prospectus relating to the Securities is required to be
delivered under the Act, as many copies of each Preliminary
Prospectus, the Prospectus and all amendments or supplements
thereto as you may from time to time reasonably request. If
at any time when a prospectus is required to be delivered
under the Act an event 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
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 in order to comply
with the Act, the Company will forthwith prepare and,
subject to the provisions of Section 5(a) hereof, file with
the Commission an appropriate supplement or amendment
thereto, and will furnish to each Underwriter and to any
dealer in securities, without charge, as many copies as you
may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance
in accordance with the requirements of Section 10 of the
Act;
(d) To make generally available to its stockholders as
soon as practicable, but in any event not later than 45 days
after the close of the period covered thereby, an earnings
statement in form complying with the provisions of
Section 11(a) of the Act covering a period of 12 consecutive
months beginning not later than the first day of the
Company's fiscal quarter next following the Effective Date;
(e) To file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15(d) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the Effective Date;
(f) For a period of five years from the Effective Date,
to furnish to its stockholders after the end of each fiscal
year an annual report meeting the requirements of the
Exchange Act (including a consolidated balance sheet and
statements of income, cash flow and stockholders' equity of
the Company and its subsidiaries certified by independent
public accountants);
(g) During a period of five years from the Effective
Date, to furnish to you copies of all reports or other
communications (financial or other) furnished to its
stockholders, and deliver to you (i) as soon as they are
available, copies of any reports and financial statements
furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information
concerning the business and financial condition of the
Company as you may from time to time reasonably request in
connection with your obligations hereunder;
(h) To apply the net proceeds from the sale of the
Securities in the manner set forth in the Prospectus under
the caption "Use of Proceeds;"
(i) That it will not, and will cause its subsidiaries,
officers, directors, employees, agents and affiliates not
to, take, directly or indirectly, any action designed to
cause or result in, or that might reasonably be expected to
cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale
or resale of the Securities;
(j) That prior to the Time of Delivery there will not
be any change in the capital stock (other than the issuance
of Employee Option Shares) or material change in the short-
term debt or long-term debt of the Company or any of its
subsidiaries (except for changes in the amount of
indebtedness outstanding under the Company's Bank Credit
Facility (as defined in the Registration Statement) incurred
for the acquisition of vessels or working capital purposes),
or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the
general affairs, management, financial position,
stockholders' equity or results of operations of the Company
or any of its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus;
(k) That it will not, and will cause each of its
executive officers, directors and Berkshire Fund III, A
Limited Partnership to enter into agreements with the
Representatives in the form set forth in Exhibit A to the
effect that they will not, during the period of 120 days
after the date hereof (other than pursuant to this
Agreement), sell, offer or agree to sell or otherwise
dispose of any capital stock of the Company (or securities
convertible into, or exchangeable for, capital stock of the
Company), directly or indirectly, without the prior written
consent of the Representative, provided that the foregoing
restrictions shall not apply to grants under the Company's
1993 Stock Option Plan and 1996 Incentive Compensation Plan
and the exercise of options granted thereunder or pursuant
to the terms of convertible securities of the Company
outstanding on the date hereof or to any gift of Common
Stock or any private sale of Common Stock not made on the
open market to a donee or purchaser, respectively, that
agrees in writing for the benefit of the Representative to
be bound by the same restrictions with respect to such
shares;
(l) That it has caused the Securities to be included
for quotation on the NASDAQ National Market as of the
Effective Date; and
(m) That, if it commences engaging in business with the
government of Cuba or with any person or affiliate located
in Cuba after the date the Registration Statement becomes or
has become effective with the Commission or with the Florida
Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in
the Prospectus, if any, concerning the Company's business
with Cuba or with any person or affiliate located in Cuba
changes in any material way, the Company will provide the
Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
5.A. Each of the Option Shareholders covenants with each of
the Underwriters as follows:
(a) Such Option Shareholder will not at any time,
directly or indirectly, take any action intended, or which
might reasonably be expected, to cause or result in, or
which will cause, stabilization of the price of the shares
of Common Stock to facilitate the sale or resale of any of
the Securities in connection with the Offering.
(b) As soon as such Option Shareholder is advised
thereof, such Option Shareholder will advise the
Underwriters and confirm such advice in writing, (1) of
receipt by such Option Shareholder, or by any
representative of the Option Shareholder, of any
communication from the Commission relating to the
Registration Statement, the Prospectus or any
Preliminary Prospectus, or any notice or order of the
Commission relating to the Company or such Option
Shareholder in connection with the transactions
contemplated by this Agreement and (2) of the happening
of any event during the period from and after the
Effective Date that in the judgment of such Option
Shareholder makes any statement made in the
Registration Statement or the Prospectus untrue or that
requires the making of any changes in the Registration
Statement or the Prospectus in order to make the
statements therein, in light of the circumstances in
which they were made, not misleading.
(c) Such Option Shareholder will not, for a period
of 120 days following the date of the Prospectus,
without prior written consent of the Underwriters,
offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, any other shares of Common
Stock or any securities convertible into, or
exchangeable for, shares of Common Stock (other than
the exercise of employee stock options owned by such
Option Shareholder).
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid: the
fees, disbursements and expenses of counsel and accountants for
the Company, and all other expenses, in connection with the
preparation, printing and filing of the Registration Statement
and the Prospectus and amendments and supplements thereto and the
furnishing of copies thereof, including charges for mailing, air
freight and delivery and counting and packaging thereof and of
any Preliminary Prospectus and related offering documents to the
Underwriters and dealers; the cost of copying and distributing
this Agreement, the Agreement Among Underwriters, the Selling
Agreement, communications with the Underwriters and selling group
and the Preliminary and Supplemental Blue Sky Memoranda and any
other documents in connection with the offering, purchase, sale
and delivery of the Securities; all expenses in connection with
the qualification of the Securities for offering and sale under
securities laws as provided in Section 5(b) hereof, including
filing and registration fees and the fees, reasonable
disbursements and expenses for counsel for the Underwriters in
connection with such qualification and in connection with Blue
Sky surveys or similar advice with respect to sales; the filing
fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; all fees and expenses in connection with
quotation of the Securities on the NASDAQ National Market; and
all other costs and expenses incident to the performance of their
obligations hereunder which are not otherwise specifically
provided for in this Section 6, including the fees of the
Company's Transfer Agent and Registrar, the cost of any stock
issue or transfer taxes on sale of the Securities to the
Underwriters, the cost of the Company's personnel and other
internal costs, the cost of printing and engraving the
certificates representing the Securities and all expenses and
taxes incident to the sale and delivery of the Securities to be
sold by the Company to the Underwriters hereunder. It is
understood, however, that, except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all
their own costs and expenses, including the fees of their
counsel, stock transfer taxes on resale of any of the Securities
by them, and any advertising expenses connected with any offers
they may make.
7. The obligations of the Underwriters hereunder shall be
subject, in their discretion, to the condition that all
representations and warranties and other statements of the
Company and the Firm Selling Shareholders herein are, at and as
of the Time of Delivery, true and correct, the condition that the
Company and the Firm Selling Shareholders shall have performed
all its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Registration Statement shall have become
effective, and you shall have received notice thereof not
later than 10:00 p.m., New York City time, on the date of
execution of this Agreement, or at such other time as you
and the Company may agree; if required, the Prospectus shall
have been filed with the Commission in the manner and within
the time period required by Rule 424(b); no stop order
suspending the effectiveness of the Registration Statement
shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission;
and all requests for additional information on the part of
the Commission shall have been complied with to your
reasonable satisfaction;
(b) All corporate proceedings and related legal and
other matters in connection with the organization of the
Company and the registration, authorization, issue, sale and
delivery of the Securities shall have been reasonably
satisfactory to Xxxxxx & Xxxxxx L.L.P., counsel to the
Underwriters, and Xxxxxx & Xxxxxx L.L.P. shall have been
timely furnished with such papers and information as they
may reasonably have requested to enable them to pass upon
the matters referred to in this subsection;
(c) You shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact or
omits to state a fact which in your judgment is in either
case material and in the case of an omission is required to
be stated therein or is necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading;
(d) Jones, Walker, Waechter, Poitevent, Carrere &
Xxxxxxx, L.L.P. ("Xxxxx, Xxxxxx"), counsel to the Company,
shall have furnished to you their written opinion, dated the
Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) The Company has been duly and validly
incorporated and is validly existing as a corporation
in good standing under the laws of the State of
Delaware, and is qualified to do business and is in
good standing in each jurisdiction in which its
ownership or leasing of properties requires such
qualification or the conduct of its business requires
such qualification (except where the failure to so
qualify would not have a material adverse effect on the
condition, financial or otherwise, or the business
affairs or prospects of the Company and its
subsidiaries, taken as a whole); and the Company has
all necessary corporate power and all material
governmental authorizations, permits and approvals
required to own, lease and operate its properties and
conduct its business as described in the Prospectus;
(ii) Each of the Company's subsidiaries has been
duly and validly incorporated and is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, and is qualified to
do business and is in good standing in each
jurisdiction in which its ownership or leasing of
properties requires such qualification or the conduct
of its business requires such qualification (except
where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or the business affairs or prospects of the
Company and its subsidiaries, taken as a whole); and
each such subsidiary has all necessary corporate power
and all material governmental authorizations, permits
and approvals required to own, lease and operate its
properties and to conduct its business as described in
the Prospectus;
(iii) All the outstanding shares of capital stock
of each of the Company's subsidiaries have been duly
authorized and are validly issued and outstanding, are
fully paid and non-assessable, except as otherwise set
forth in the Prospectus and the Company's 40% equity
interest in Xxxxxx Servicos Maritimos Ltda., a
Brazilian limitada, are owned by the Company of record
and to the best knowledge of such counsel,
(A) beneficially and (B) free and clear of all liens,
encumbrances, equities, security interests or claims of
any nature whatsoever; and neither the Company nor any
of its subsidiaries has granted any outstanding
options, warrants or commitments with respect to any
shares of its capital stock, whether issued or
unissued, except as otherwise described in the
Prospectus;
(iv) The Company has an authorized capitalization
as set forth in the Registration Statement and all the
issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully
paid and non-assessable; are free of any preemptive
rights, and were issued and sold in compliance with all
applicable Federal and state securities laws; except as
described in the Prospectus, to the knowledge of such
counsel, there are no outstanding options, warrants or
other rights calling for the issuance of, and there are
no commitments, plans or arrangements to issue, any
shares of capital stock of the Company; the Securities
being sold by the Company have been duly and validly
authorized and, when duly countersigned by the
Company's Transfer Agent and Registrar and issued,
delivered and paid for in accordance with the
provisions of the Registration Statement and this
Agreement, will be duly and validly issued, fully paid
and non-assessable; the Securities conform to the
description thereof in the Prospectus; the Securities
have been duly authorized for quotation on the NASDAQ
National Market, as of the Effective Date; and the
certificates for the Securities are in valid and
sufficient form;
(v) To the best of such counsel's knowledge, there
are no legal or governmental proceedings pending or
threatened to which the Company or any of its
subsidiaries or any of their respective officers or
directors is a party or of which any property of the
Company or any of its subsidiaries is the subject
which, if resolved against the Company or any of its
subsidiaries or any of their respective officers or
directors, individually, or to the extent involving
related claims or issues, in the aggregate, is of a
character required to be disclosed in the Prospectus;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company and is a legal,
valid and binding agreement of the Company enforceable
in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or
affecting the rights of creditors generally and by
general principles of equity and, with respect to
Section 8 of this Agreement, by public policy under
federal and state securities laws;
(vii) The Company has full corporate power and
authority to execute, deliver and perform this
Agreement, and the execution, delivery and performance
of this Agreement, the consummation of the transactions
herein contemplated and the issue and sale of the
Securities and the compliance by the Company with all
the provisions of this Agreement will not conflict
with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge,
claim or encumbrance upon, any of the property or
assets of the Company or any of its subsidiaries
pursuant to, the terms of any indenture, mortgage, deed
of trust, loan agreement or other material 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 property or assets of the Company or any of
its subsidiaries is subject, nor will such action
result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws, in each
case as amended, 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;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or
any regulatory authority or other governmental body is
required for the issue and sale of the Securities or
the consummation of the other transactions contemplated
by this Agreement, except such as have been obtained
under the Act and such consents, approvals, authoriza-
tions, registrations or qualifications as may be
required under state or foreign securities or Blue Sky
laws in connection with the purchase and distribution
of the Securities by the Underwriters;
(ix) To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries is
currently in violation of its Certificate of
Incorporation or By-Laws or in default under, any
indenture, mortgage, deed of trust, lease, bank loan or
credit agreement or any other agreement or instrument
of which such counsel has knowledge to which the
Company or any of its subsidiaries is a party or by
which any of them or any of their property may be bound
or affected (in any respect that is material in light
of the financial condition of the Company and its
subsidiaries, taken as a whole);
(x) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon
the voting or transfer of, any Securities pursuant to
the Company's Certificate of Incorporation or By-Laws
(except as provided in the Company's Certificate of
Incorporation with respect to ownership of Common Stock
by non-U.S. citizens), in each case as amended to the
date hereof, or any agreement or other instrument known
to such counsel; and no holders of securities of the
Company have rights to the registration thereof under
the Registration Statement or, if any such holders have
such rights, such holders have waived such rights;
(xi) To the extent summarized therein, all
contracts and agreements summarized in the Registration
Statement and the Prospectus are fairly summarized
therein, conform in all material respects to the
descriptions thereof contained therein, and, to the
extent such contracts or agreements or any other
material agreements are required under the Act or the
rules and regulations thereunder to be filed, as
exhibits to the Registration Statement, they are so
filed; and such counsel does not know of any contracts
or other documents required to be summarized or
disclosed in the Prospectus or to be so filed as an
exhibit to the Registration Statement, which have not
been so summarized or disclosed, or so filed;
(xii) All descriptions in the Prospectus of
statutes, regulations or legal or governmental
proceedings are fair summaries thereof and fairly
present the information required to be shown with
respect to such matters;
(xiii) The Registration Statement has become
effective under the Act, the Prospectus has been filed
in accordance with Rule 424(b) of the rules and
regulations of the Commission under the Act, including
the applicable time periods set forth therein, or such
filing is not required and, to the best knowledge of
such counsel, no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are pending or threatened under the Act,
and the Registration Statement, the Prospectus and each
amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all
material respects with the requirements of the Act and
the rules and regulations thereunder; it being
understood that such counsel need express no opinion as
to the financial statements and schedules or other
financial data contained in the Registration Statement
or the Prospectus.
Such counsel shall also state that nothing has
come to such counsel's attention that would lead such
counsel to believe that either the Registration
Statement or any amendment or supplement thereto, at
the time such Registration Statement or amendment or
supplement became effective, or the Prospectus or any
amendment or supplement thereto, as of its date and as
of the Time of Delivery, contains or contained any
untrue statement of material fact or omitted or omits
to state a material fact required to be stated therein
or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading.
In rendering their opinions set forth in
Section 7(d) above, such counsel may rely, to the
extent deemed advisable by such counsel, (a) as to
factual matters, upon certificates of public officials
and officers of the Company, and (b) as to the laws of
any jurisdiction other than the United States and
jurisdictions in which they are admitted, on opinions
of counsel (provided, however, that you shall have
received a copy of each of such opinions which shall be
dated the Time of Delivery, addressed to you or
otherwise authorizing you to rely thereon, and Xxxxx,
Xxxxxx in its opinion to you delivered pursuant to this
subsection, shall state that such counsel are
satisfactory to them and Xxxxx, Xxxxxx has no reason to
believe that the Underwriters and they are not
justified to so rely);
(e) Xxxxx, Xxxxxx (or other law firm acceptable to the
Underwriters), shall have furnished to you their written
opinion, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) Each of this Agreement, the Power of Attorney
and the Custody Agreement has been duly authorized,
executed and delivered by or on behalf of each of the
Option Shareholders and constitutes a legal, valid and
binding agreement of each Option Shareholder.
(ii) No consent, approval, authorization or order
of any court or governmental agency or body is required
for the consummation by any Option Shareholder of the
transactions on its part contemplated by this Agreement
in connection with the Securities to be sold by any
Option Shareholder hereunder, except such as have been
obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of such
Securities by the Underwriters; and
(iii) Upon purchase of the Securities to be sold
by the Option Shareholders as provided in this
Agreement, each of the Underwriters (assuming that it
is a bona fide purchaser within the meaning of the
Uniform Commercial Code) will acquire good and valid
title to such Securities, free and clear of all
security interests, liens, encumbrances, equities or
other claims.
Such counsel may rely upon certificates of the Option
Shareholders. The opinions of such counsel relate solely
to, are based solely upon and are limited exclusively to the
laws of the State of Texas and the State of New York and the
laws of the United States of America, to the extent
applicable.
(f) Xxxxxx & Xxxxxx L.L.P., counsel to the
Underwriters, shall have furnished to you their written
opinion or opinions, dated the Time of Delivery, in form and
substance satisfactory to you, with respect to the
incorporation of the Company, the validity of the
Securities, the Registration Statement, the Prospectus and
other related matters as you may reasonably request, and
such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon
such matters;
(g) At the time this Agreement is executed and also at
the Time of Delivery, Coopers & Xxxxxxx L.L.P. shall have
furnished to you a letter or letters, dated the date of this
Agreement and the Time of Delivery, in form and substance
satisfactory to you, to the effect, that:
(i) They are independent accountants with respect
to the Company and its subsidiaries within the meaning
of the Act and the applicable published rules and
regulations thereunder;
(ii) In their opinion the consolidated financial
statements of the Company and its subsidiaries
(including the related schedules and notes) included in
the Registration Statement and Prospectus and covered
by their reports included therein comply as to form in
all material respects with the applicable accounting
requirements of the Act and the published rules and
regulations thereunder;
(iii) On the basis of specified procedures as of a
specified date not more than five days prior to the
date of their letter (which procedures do not
constitute an examination made in accordance with
generally accepted auditing standards), consisting of a
reading of the latest available unaudited interim
consolidated financial statements of the Company and
its subsidiaries, a reading of the latest available
minutes of any meeting of the Board of Directors and
stockholders of the Company and its subsidiaries since
the date of the latest audited financial statements
included in the Prospectus, inquiries of officials of
the Company and its subsidiaries who have
responsibility for financial and accounting matters,
and such other procedures or inquiries as are specified
in such letter, nothing came to their attention that
caused them to believe that:
(A) The unaudited consolidated condensed
financial statements of the Company and its
subsidiaries included in the Prospectus do not
comply in form in all material respects with the
applicable accounting requirements of the Act and
the rules and regulations promulgated thereunder
or are not presented in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
consolidated financial statements included in the
Registration Statement and the Prospectus;
(B) as of a specified date not more than five
days prior to the date of their letter, there was
any change in the capital stock, or the long-term
debt of the Company and its subsidiaries on a
consolidated basis, or any decrease in total
assets, total current assets or stockholders'
equity or other items specified by the
Representatives, of the Company and its
subsidiaries on a consolidated basis, each as
compared with the amounts shown on the
September 30, 1996 balance sheet included in the
Registration Statement and the Prospectus, except
in each case for changes, increases or decreases
which the Prospectus discloses have occurred or
may occur or such other changes, decreases or
increases which are described in their letter and
which do not, in the sole judgment of the
Representatives, make it impractical or
inadvisable to proceed with the purchase and
delivery of the Securities as contemplated by the
Registration Statement; and
(C) for the period from October 1, 1996 to a
specified date not more than five days prior to
the date of such letter, there was any decrease,
as compared with the corresponding period of the
preceding fiscal year, in the following
consolidated amounts: total revenues, income
(loss) before income taxes, net income (loss) or
net income (loss) per average common share
outstanding, except in all instances for decreases
which the Registration Statement discloses have
occurred or may occur; or such other decreases
which are described in their letter and which do
not, in the sole judgment of the Representatives,
make it impractical or inadvisable to proceed with
the purchase and delivery of the Securities as
contemplated by the Registration Statement; and
(iv) in addition to the examination referred to in
their reports included in the Registration Statement
and the Prospectus and the limited procedures referred
to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial
information specified by the Representatives, which are
derived from the general accounting records of the
Company and its subsidiaries which appear in the
Prospectus, or in Part II of, or in exhibits and
schedules to, the Registration Statement, and have
compared such amounts and financial information with
the accounting records of the Company and its
subsidiaries, and have found them to be in agreement
and have proved the mathematical accuracy of certain
specified percentages.
(h) 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; and since the respective dates as of which
information is given in the Prospectus, there shall not have
been any change in the capital stock (other issuance of
Employee Option Shares) or short-term debt or long-term
debt (excluding changes in the amount of indebtedness
outstanding under the Company's Bank Credit Facility
(as defined in the Registration Statement) incurred
for the acquisition of vessels or working capital
purposes) of the Company or any of its subsidiaries
nor any change or any development involving a prospective
change, in or affecting the general affairs, management,
financial position, stockholders' equity 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 is in your judgment so
material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in
the Prospectus;
(i) Between the date hereof and the Time of Delivery
there shall have been no declaration of war by the
Government of the United States; at the Time of Delivery
there shall not have occurred any material adverse change in
the financial or securities markets in the United States or
in political, financial or economic conditions in the United
States or any outbreak or material escalation of hostilities
or other calamity or crisis, the effect of which is such as
to make it, in the judgment of the Representatives,
impracticable to market the Securities or to enforce
contracts for the resale of Securities and no event shall
have occurred resulting in (i) trading in securities
generally on the New York Stock Exchange or in the Common
Stock on the principal securities exchange or market in
which the Common Stock is listed or quoted being suspended
or limited or minimum or maximum prices being generally
established on such exchanges or market, or (ii) additional
material governmental restrictions, not in force on the date
of this Agreement, being imposed upon trading in securities
generally by the New York Stock Exchange or in the Common
Stock on the principal securities exchange or market in
which the Common Stock is listed or quoted or by order of
the Commission or any court or other governmental authority,
or (iii) a general banking moratorium being declared by
either Federal or New York authorities;
(j) The Company shall have furnished or caused to be
furnished to you at the Time of Delivery certificates signed
by the chief executive officer and the chief financial
officer, on behalf of the Company, satisfactory to you as to
such matters as you may reasonably request and as to (i) the
accuracy of the Company's representations and warranties
herein at and as of the Time of Delivery and (ii) the
performance by the Company of all its obligations hereunder
to be performed at or prior to the Time of Delivery;
(iii) the fact that they have carefully examined the
Registration Statement and Prospectus and, (a) as of the
Effective Date, the statements contained in the Registration
Statement and the Prospectus were true and correct and
neither the Registration Statement nor the Prospectus
omitted 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 that is required by the Act or the rules and
regulations of the Commission thereunder to be set forth in
an amendment of, or a supplement to, the Prospectus that has
not been set forth in such an amendment or supplement; and
(iv) the matters set forth in subsection (a) of this
Section 7;
(k) Each director, executive officer and Berkshire Fund
III, A Limited Partnership shall have delivered to you an
agreement not to sell, offer or agree to sell or otherwise
dispose of any capital stock of the Company (or securities
convertible into, or exchangeable for, capital stock of the
Company), directly or indirectly, for a period of 120 days
after the date hereof (other than pursuant to this Agreement
and upon exercise of an employee stock option), without the
prior written consent of the Representative, provided that
the foregoing restrictions shall not apply to grants under
the Company's 1993 Stock Option Plan and 1996 Incentive
Compensation Plan and the exercise of options granted
thereunder or pursuant to the terms of convertible
securities of the Company outstanding on the date hereof or
to any gift of Common Stock or any private sale of Common
Stock not made on the open market to a donee or purchaser,
respectively, that agrees in writing for the benefit of the
Representative to be bound by the same restrictions with
respect to such shares; and
(l) The Company shall have delivered to you evidence
that the Securities have been authorized for quotation on
the NASDAQ National Market as of the Effective Date.
8. (a) The Company will indemnify and hold harmless each
Underwriter 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 (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or in any Blue Sky application
or other document executed by the Company specifically for that
purpose or based upon written information furnished by the
Company filed in any state or other jurisdiction in order to
qualify any or all the Securities under the security laws thereof
or filed with the Commission or any securities association or
securities exchange (each, an "Application"), or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements made therein
not misleading, or (ii) any untrue statement or alleged untrue
statement made by the Company in Section 1 of this Agreement, or
(iii) the employment by the Company of any device, scheme or
artifice to defraud, or the engaging by the Company in any act,
practice or course of business which operates or would operate as
a fraud or deceit, or any conspiracy with respect thereto, in
which the Company shall participate, in connection with the
issuance and sale of any of the Securities, and will reimburse
each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating,
preparing to defend, defending or appearing as a third-party
witness in connection with any such action or claim; provided,
however, that the Company shall 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 or omission or alleged omission relating to an
Underwriter made in any Preliminary Prospectus, the Registration
Statement, the Prospectus or such amendment or supplement or any
Application in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through
you expressly for use therein.
(b) In addition to any obligations of the Company under
Section 8(a), the Company agrees that it shall perform its
indemnification obligations under Section 8(a) (as modified
by the last paragraph of this Section 8(b)) with respect to
counsel fees and expenses and other expenses reasonably
incurred by making payments within 45 days to the
Underwriter in the amount of the statements of the
Underwriter's counsel or other statements which shall be
forwarded by the Underwriter, and that they shall make such
payments notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the
obligation to reimburse the Underwriters for such expenses
and the possibility that such payments might later be held
to have been improper by a court and a court orders return
of such payments.
The indemnity agreement in Section 8(a) 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 or the Exchange Act.
(c) Each Option Shareholder will indemnify and hold
harmless each Underwriter or the Company, as the case may
be, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or the Company,
as the case may be, 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 (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or in any Blue Sky
application or other document executed by the Company
specifically for that purpose or based upon written
information furnished to the Company by the Option
Shareholder filed in any state or other jurisdiction in
order to qualify any or all the Securities under the
security laws thereof or filed with the Commission or any
securities association or securities exchange (each, an
"Application"), or the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements made therein in each
case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission was made
in reliance upon and in conformity with written information
furnished to the Company by such Option Shareholder
specifically for use therein and provided, however, that the
Option Shareholder shall 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 or omission or alleged omission
relating to an Underwriter made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or
such amendment or supplement or any Application in reliance
upon and in conformity with written information furnished to
the Company by such Underwriter through you expressly for
use therein. In addition, in no event shall the liability
of any Option Shareholder for indemnification in this
Section 8(c) exceed the proceeds received by such Option
Shareholder in the Offering.
(d) In addition to any obligations of each of the
Option Shareholders under Section 8(c), each of the Option
Shareholders agrees that it shall perform its
indemnification obligations under Section 8(c) (as modified
by the last paragraph of this Section 8(d)) with respect to
counsel fees and expenses and other expenses reasonably
incurred by making payments within 45 days to the
Underwriter in the amount of the statements of the
Underwriter's counsel or other statements which shall be
forwarded by the Underwriter, and that they shall make such
payments notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the
obligation to reimburse the Underwriters for such expenses
and the possibility that such payments might later be held
to have been improper by a court and a court orders return
of such payments.
The indemnity agreement in Section 8(c) shall be in
addition to any liability which such Option Shareholder 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 or the Exchange
Act.
(e) Each Underwriter will indemnify and hold harmless
the Company or the Option Shareholders, as the case may be,
against any losses, claims, damages or liabilities to which
the Company or any of the Option Shareholders 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 an untrue statement
or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or
any Application, 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, 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 any Preliminary Prospectus, the Registration
Statement, the Prospectus or such amendment or supplement or
any Application in reliance upon and in conformity with
written information furnished to the Company or the Option
Shareholder by such Underwriter relating to such Underwriter
through you expressly for use therein, and will reimburse
the Company or the Option Shareholder for any legal or other
expenses reasonably incurred by the Company or the Option
Shareholder in connection with investigating or defending
any such action or claim.
The indemnity agreement in this Section 8(e) 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 officer and director of
the Company or Option Shareholder, if appropriate, and to
each person, if any, who controls the Company or Option
Shareholder, if appropriate, within the meaning of the Act
or the Exchange Act.
(f) Promptly after receipt by an indemnified party
under Section 8(a), 8(c) or 8(e) of notice of the
commencement of any action (including any governmental
investigation), such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party
under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to
notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party under
Section 8(a), 8(c) or 8(e) except to the extent it was
unaware of such action and has been prejudiced in any
material respect by such failure or from any liability which
it may have to any indemnified party otherwise than under
such Section 8(a), 8(c) or 8(e). In case any such action
shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for
any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof
other than reasonable costs of investigation. If, however,
(i) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the
indemnifying party or (ii) an indemnified party shall have
reasonably concluded that representation of such indemnified
party and the indemnifying party by the same counsel would
be inappropriate under applicable standards of professional
conduct due to actual or potential differing interests
between them and the indemnified party so notifies the
indemnifying party, then the indemnified party shall be
entitled to employ counsel different from counsel for the
indemnifying party at the expense of the indemnifying party
and the indemnifying party shall not have the right to
assume the defense of such indemnified party. In no event
shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to local
counsel) for all indemnified parties in connection with any
one action or separate but similar or related actions in the
same jurisdiction arising out of the same set of allegations
or circumstances. The counsel with respect to which fees
and expenses shall be so reimbursed shall be designated in
writing by Xxxxxxxx Xxxxxxxx & Co. Incorporated in the case
of parties indemnified pursuant to Section 8(a) and 8(c) and
by the Company and the Option Shareholders in the case of
parties indemnified pursuant to Section 8(e).
No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of
any pending or threatened proceeding 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 includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such
proceeding.
(g) In order to provide for just and equitable
contribution under the Act in any case in which (i) any
Underwriter (or any person who controls any Underwriter
within the meaning of the Act or the Exchange Act) makes
claim for indemnification pursuant to Section 8(a) or 8(c)
hereof, but is judicially determined (by the entry of a
final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such
indemnification may not be enforced in such case
notwithstanding the fact that Section 8(a) or 8(c) provides
for indemnification in such case or (ii) contribution under
the Act may be required on the part of any Underwriter or
any such controlling person in circumstances for which
indemnification is provided under Section 8(e), then, and in
each such case, each indemnifying party shall contribute to
the aggregate losses, claims, damages or liabilities to
which they may be subject as an indemnifying party hereunder
(after contribution from others) in such proportion as is
appropriate to reflect the relative benefits received by the
Company or any of the Option Shareholders on the one hand
and the Underwriters on the other from the offering of the
Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give
the notice required under Section 8(d) above, then each
indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits 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 (or actions in respect
thereof), as well as any other relevant equitable
considerations. The relative benefits received by the
Company or any of the Option Shareholders 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 of the Securities purchased under this Agreement
(before deducting expenses) received by the Company or any
of the Option Shareholders bear to the total underwriting
discounts and commissions received by the Underwriters with
respect to the Securities purchased 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, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by the Company or any of the Option
Shareholders on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission. The Company, each of the Option
Shareholders and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this
Section 8(g) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to
above in this Section 8(g). The amount paid or payable by
an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof)
referred to above in this Section 8(g) shall be deemed to
include 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 8(g), 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 and no Option Shareholder shall be required
to contribute any amount in excess of the proceeds received
by such Option Shareholder in the Offering. No person
guilty of a 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 Section 8(e) to contribute are several in proportion
to their respective underwriting obligations and not joint.
(h) Promptly after receipt by any party to this
Agreement of notice of the commencement of any action, suit
or proceeding, such party will, if a claim for contribution
in respect thereof is to be made against another party (the
"contributing party"), notify the contributing party of the
commencement thereof; but the omission so to notify the
contributing party will not relieve it from any liability
which it may have to any other party for contribution under
the Act except to the extent it was unaware of such action
and has been prejudiced in any material respect by such
failure or from any liability which it may have to any other
party other than for contribution under the Act. In case
any such action, suit or proceeding is brought against any
party, and such party notifies a contributing party of the
commencement thereof, the contributing party will be
entitled to participate therein with the notifying party and
any other contributing party similarly notified.
9. (a) If any Underwriter shall default in its obligation
to purchase the Firm Securities which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another
party or other parties to purchase such Firm Securities on the
terms contained herein. If the aggregate number of Firm
Securities as to which Underwriters default is more than one-
eleventh of the aggregate number of all the Firm Securities and
within 36 hours after such default by any Underwriter you do not
arrange for the purchase of such Firm Securities, then the
Company shall be entitled to a further period of 36 hours within
which to procure another party or other parties satisfactory to
you to purchase such Firm Securities on such terms. In the event
that, within the respective prescribed periods, you notify the
Company that you have so arranged for the purchase of such Firm
Securities, or the Company notifies you that it has so arranged
for the purchase of such Firm Securities, you or the Company
shall have the right to postpone the Time of Delivery for a
period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration
Statement or the Prospectus or in any other documents or
arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person
had originally been a party to this Agreement with respect to
such Firm Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Firm Securities of such defaulting
Underwriter or Underwriters by you or the Company or both as
provided in subsection (a) above, the aggregate number of
such Firm Securities which remain unpurchased does not
exceed one-eleventh of the aggregate number of all the Firm
Securities, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of
the Firm Securities which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based
on the number of Firm Securities which such Underwriter
agreed to purchase hereunder) of the Firm Securities of such
defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Securities of a defaulting Underwriter
or Underwriters by you or the Company as provided in
subsection (a) above, the aggregate number of such Firm
Securities which remain unpurchased exceeds one-eleventh of
the aggregate number of all the Firm Securities, or if the
Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters
to purchase Firm Securities of a defaulting Underwriter or
Underwriters, then this Agreement shall thereupon terminate
without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity agreement in Section 8
hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, represen-
tations, warranties and other statements of the Company, the
Option Shareholders and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Company, or an
officer or director or controlling person of the Company, or an
Option Shareholder, or an officer or director or controlling
person of the Option Shareholder, and shall survive delivery of
and payment for the Securities.
11. This Agreement shall become effective (a) if the
Registration Statement has not heretofore become effective, at
the earlier of 12:00 Noon, New York City time, on the first full
business day after the Registration Statement becomes effective,
or at such time after the Registration Statement becomes
effective as you may authorize the sale of the Securities to the
public by Underwriters or other securities dealers, or (b) if the
Registration Statement has heretofore become effective, at the
earlier of 24 hours after the filing of the Prospectus with the
Commission or at such time as you may authorize the sale of the
Securities to the public by Underwriters or securities dealers,
unless, prior to any such time you shall have received notice
from the Company that it elects that this Agreement shall not
become effective, or you, or through you such of the Underwriters
as have agreed to purchase in the aggregate fifty percent or more
of the Firm Securities hereunder, shall have given notice to the
Company that you or such Underwriters elect that this Agreement
shall not become effective; provided, however, that the
provisions of this Section and Section 6 and Section 8 hereof
shall at all times be effective.
If this Agreement shall be terminated pursuant to Section 9
hereof, or if this Agreement, by election of you or the
Underwriters, shall not become effective pursuant to the
provisions of this Section, the Company shall not then be under
any liability to any Underwriter except as provided in Section 6
and Section 8 hereof, but if this Agreement becomes effective and
is not so terminated but the Securities are not delivered by or
on behalf of the Company as provided herein because the Company
has been unable for any reason beyond its control and not due to
any default by it to comply with the terms and conditions hereof,
the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees
and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and
delivery of the Securities, but the Company shall then be under
no further liability to any Underwriter except as provided in
Section 6 and Section 8 hereof.
12. The statements set forth in the last paragraph on the
front cover page of the Prospectus, the paragraphs on the inside
front cover of the Prospectus containing stabilization language
and the second paragraph under the caption "Underwriting" in the
Prospectus constitute the only information furnished by any
Underwriter through the Representatives to the Company for
purposes of Sections 1(b), 1(c) and 8 hereof.
13. In all dealings hereunder, you shall act on behalf of
each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by you
jointly or by Xxxxxxxx Wertheim & Co. Incorporated on behalf of
you as the Representatives.
All statements, requests, notices and agreements hereunder,
unless otherwise specified in this Agreement, shall be in writing
and, if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission (subsequently confirmed by
delivery or by letter sent by mail) to you as the Representatives
in care of Xxxxxxxx Xxxxxxxx & Co. Incorporated, Equitable
Center, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Syndicate Department; and if to the Company, shall be delivered
or sent by mail, telex or facsimile transmission (subsequently
confirmed by delivery or by letter sent by mail) to the address
of the Company set forth in the Registration Statement,
Attention: Xxxxxx X. Xxxxx; provided, however, that any notice to
any Underwriter pursuant to Section 8(d) hereof shall be
delivered or sent by mail, telex or facsimile transmission
(subsequently confirmed by delivery or by letter sent by mail) to
such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any
such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
14. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers
and directors of the Company and each person who controls the
Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
15. Time shall be of the essence of this Agreement. As
used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
16. This Agreement shall be construed in accordance with
the laws of the State of New York, without giving effect to the
conflicts of laws principles thereof.
17. This Agreement may be executed by any one or more of
the parties hereto 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 instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us two counterparts hereof, and upon
the acceptance hereof by you, on behalf of each of the
Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and
the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the
authority set forth in a form of Agreement Among Underwriters,
manually or facsimile executed counterparts of which, to the
extent practicable and upon request, shall be submitted to the
Company for examination, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
TRICO MARINE SERVICES, INC.
By:
Name:
Title:
OPTION SHAREHOLDERS
By:
As Attorney-in-Fact for each of the several Option
Shareholders named in Schedules II and III
Accepted as of the date hereof:
XXXXXXXX XXXXXXXX & CO.
INCORPORATED
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXXX & COMPANY INTERNATIONAL
as Representatives of the several Underwriters
By: XXXXXXXX XXXXXXXX & CO.
INCORPORATED
By:
Managing Director
Trico Marine Services, Inc.
Underwriting Agreement
SCHEDULE I
Underwriter Number of Firm
Securities
Xxxxxxxx Wertheim & Co. Incorporated
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxxx & Company International
Total ___________
Trico Marine Services, Inc.
Underwriting Agreement
Schedule I
SCHEDULE II
Firm Selling Shareholders Number of Firm
Securities
Berkshire Fund III, A Limited Partnership
Xxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxxxxx Present Interest Trust
Xxxxxxxxx X. Xxxxxxxx Present Interest Trust
Xxxx X. Xxxxxxxx Present Interest Trust
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx Daughters' Trusts
Xxxxx X. Xxxxxxxxx
Xxxx Xxxxx-Xxxxxx
Xxxxxx X. Small
Xxx X. Xxxxxx
Xxxx X. Xxxxx
Trico Marine Services, Inc.
Underwriting Agreement
Schedule II
Schedule III
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, Xx.
Xxxxxxxx X. Xxxxxx
Schedule VI
Schedule V
Procedures for Option Securities
1. If the option granted to the Underwriters to cover over-
allotments (the "Option") is exercised with respect to _____
shares or less, ___% of such shares shall be sold by Xxxxxx X.
Xxxxxxxxx, Xx. and __% shall be sold by Xxxxxxxx X. Xxxxxx
(collectively, the "Directors").
2. If the Option is exercised with respect to more than
_____ but no more than 206,500 shares, (i) ____ shares shall be
sold by the Directors in accordance with the provisions of
Paragraph 1 and (ii) all other shares shall be sold collectively,
by Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxxxx
X. Xxxx and Xxxxxxx X. Xxxxxxxxx (the "Management"), on a pro
rata basis based on the total amount of shares of Common Stock
"beneficially owned" (as defined by Rule 13d-3 under the
Securities Exchange Act of 1934) by such person.
3. If the Option is exercised with respect to more than
206,500 shares, (i) ____ shares shall be sold by the Directors in
accordance with the provisions of Xxxxxxxxx 0, (xx) _____ shares
shall be sold collectively by Management in accordance with the
provisions contained in Paragraph 2 and (iii) all other shares
shall be sold collectively by the Firm Selling Shareholders on a
pro rata basis based on the number of shares of common stock
owned by such Firm Selling Shareholder.
Capitalized terms used herein and not otherwise defined are
used herein as defined in the Underwriting Agreement to which
this Schedule V is attached and made a part.
