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EXHIBIT 1.1
3,754,278 Shares
CORE LABORATORIES N.V.
Common Shares
(par value NLG 0.03 per share)
EQUITY UNDERWRITING AGREEMENT
-----------------------------
November __, 1997
BT Alex. Xxxxx Incorporated
Credit Suisse First Boston Corporation
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Xxxxxx & Company, Inc.
As Representatives of the
Several Underwriters
c/o BT Alex. Xxxxx Incorporated
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Core Laboratories N.V., a Netherlands Naamloze Vennootschap (the
"Company"), and certain shareholders of the Company (the "Selling
Shareholders") propose to sell to the several underwriters named in Schedule I
hereto (the "Underwriters") for whom you are acting as representatives (the
"Representatives") an aggregate of 3,754,278 shares of the Company's Common
Shares, par value NLG 0.03 per share (the "Firm Shares"), of which 1,400,000
shares will be sold by the Company and 2,354,278 shares will be sold by the
Selling Shareholders. The respective amounts of the Firm Shares to be so
purchased by the several Underwriters are set forth opposite their names in
Schedule I hereto, and the respective amounts to be sold by the Selling
Shareholders are set forth opposite their names in Schedule II hereto. The
Company and the Selling Shareholders are sometimes referred to herein
collectively as the "Sellers." The Company and certain of the Selling
Shareholders have granted to the Underwriters an option to purchase up to an
additional 563,142 Common Shares (the "Option Shares). The respective amounts of
the Option Shares to be sold by
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the Company and certain of the Selling Shareholders upon exercise in full of
such option are set forth opposite their names on Schedule III hereto.
As the Representatives, you have advised the Company and the Selling
Shareholders (a) that you are authorized to enter into this Agreement on behalf
of the several Underwriters and (b) that the several Underwriters are willing,
acting severally and not jointly, to purchase the numbers of Firm Shares set
forth opposite their respective names in Schedule I, plus their pro rata
portion of the Option Shares if you elect to exercise the over-allotment option
in whole or in part for the accounts of the several Underwriters. The Firm
Shares and the Option Shares (to the extent the aforementioned option is
exercised) are herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
SHAREHOLDERS.
(a) The Company represents and warrants to each of the Underwriters,
as of the date hereof, as of the Closing Date (as defined below) and as of the
Option Closing Date (as defined below), as follows:
(i) A registration statement on Form S-3 (File No. 333-39265)
with respect to the Shares has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and has been filed with the Commission. The
Company has complied with the conditions for the use of Form S-3.
Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of the
Rules and Regulations) contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, have
heretofore been delivered by the Company to the Representatives. Such
registration statement, together with any registration statement filed
by the Company pursuant to Rule 462(b) of the Act, is herein referred
to as the "Registration Statement," which shall be deemed to include
all information omitted therefrom in reliance upon Rule 430A and
contained in the Prospectus referred to below. The Registration
Statement has become effective under the Act and no post-effective
amendment to the Registration Statement has been filed as of the date
of this Agreement. "Prospectus" means the form of prospectus first
filed with the Commission pursuant to Rule 424 of the Rules and
Regulations. Each preliminary prospectus included in the Registration
Statement prior to the time it becomes effective is herein referred to
as a "Preliminary Prospectus." Any reference herein to the
Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents incorporated by
reference therein and, in the case of any reference herein to any
Prospectus, also shall be deemed to include any documents incorporated
by reference therein, and any supplements or amendments thereto, filed
with the
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Commission after the date of filing of the Prospectus under Rules 424
or 430A, and prior to the termination of the offering of the Shares by
the Underwriters.
(ii) The Company is a Naamloze Vennootschap duly incorporated
and validly existing in good standing under the laws of The
Netherlands, with corporate power and authority to own or lease and
operate its properties and to conduct its business as described in the
Registration Statement. The Company is duly qualified to transact
business in all jurisdictions in which the conduct of its business
requires such qualification other than where the failure to be so
qualified could not reasonably be expected to have a material adverse
effect on the earnings, business, properties, assets, rights,
operations or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole or to prevent the consummation of the
transactions contemplated hereby.
(iii) The outstanding shares of Common Shares of the Company,
including all Shares to be sold by the Selling Shareholders, have been
duly authorized and validly issued and are fully paid and
non-assessable; the Shares to be issued and sold by the Company have
been duly authorized and when issued and paid for as contemplated
herein will be validly issued, fully paid and non-assessable. No
preemptive rights of shareholders exist with respect to any of the
Shares or the issue and sale thereof. Neither the filing of the
Registration Statement nor the offering or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other than
those that have been waived or satisfied, for or relating to the
registration of any shares of Common Shares.
(iv) There are no outstanding securities of the Company
convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of capital stock of the Company and there
are no outstanding or authorized options, warrants or rights of any
character obligating the Company to issue any shares of its capital
stock (except (i) as described in or contemplated by the Prospectus
with respect to the two-for-one stock split of the outstanding Common
Shares, payable on December 19, 1997 to shareholders of record as of
the close of business on December 1, 1997, (ii) with respect to
options to purchase 74,896 Common Shares held by former holders of
options to purchase capital stock of ProTechnics Company and (iii)
with respect to outstanding options issued pursuant to the Company's
stock option plans) or any securities convertible or exchangeable into
or evidencing the right to purchase or subscribe for any shares of
such stock. In connection with this offering, the Company has not
offered and will not offer its Common Shares or any other securities
convertible into or exchangeable or exercisable for Common Shares in a
manner in violation of the Act. The Company has not distributed and
will not distribute any offering material other than the Prospectus in
connection with the offer and sale of the Shares.
(v) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct in all material
respects. All of the Shares conform in all material respects to the
description thereof contained in the Registration Statement. The form
of certificates for the Shares conforms in all material respects to
the corporate law of the jurisdiction of the
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Company's organization and, when executed and delivered in definitive
form, will be sufficient to convey the interest in the Company
purported to be evidenced thereby.
(vi) Each of the subsidiaries of the Company as listed in
Exhibit A hereto (collectively, the "Subsidiaries") has been duly
incorporated and is validly existing as an entity in good standing
under the laws of the jurisdiction of its organization, with all power
and authority to own or lease and operate its properties and to
conduct its business as described in the Registration Statement. The
Subsidiaries are the only "significant subsidiaries" (as such term is
defined in the Rules and Regulations), direct or indirect, of the
Company. Each of the Subsidiaries is duly qualified to transact
business in all jurisdictions in which the conduct of such
Subsidiary's business requires such qualification other than where the
failure to be so qualified could not reasonably be expected to have a
material adverse effect on the earnings, business, properties, assets,
rights, operations or condition (financial or otherwise) of the Company
and its Subsidiaries taken as a whole or to prevent the consummation of
the transactions contemplated hereby. The outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable and are owned by the Company
or another Subsidiary free and clear of all security interests, liens,
encumbrances, equities and other claims, except as otherwise indicated
in Exhibit A hereto; no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership interests in the
Subsidiaries are outstanding.
(vii) This Agreement has been duly authorized, executed and
delivered by the Company.
(viii) The Commission has not issued an order preventing or
suspending the use of the Prospectus relating to the proposed offering
of the Shares nor instituted proceedings for that purpose. The
Registration Statement contains, and the Prospectus and any amendments
or supplements thereto will contain, all statements that are required
to be stated therein by the requirements of the Act and the Rules and
Regulations; and the Registration Statement conforms, and the
Prospectus will conform, in all material respects to the requirements
of the Act and the Rules and Regulations. The documents incorporated
by reference in the Registration Statement and the Prospectus, at the
time filed with the Commission, conformed in all material respects to
the requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations of the Commission
thereunder, or the Act and the Rules and Regulations, as applicable.
The Registration Statement does not contain, and any amendment to the
Registration Statement will not contain, any untrue statement of a
material fact and does not omit, and will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus does not contain,
and any amendments or supplements to the Prospectus will not contain,
any untrue statement of material fact and does not omit, and will not
omit, to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
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however, that the Company makes no representations or warranties as to
information contained in or omitted from the Registration Statement or
the Prospectus, or any such amendment or supplement, in reliance upon,
and in conformity with, written information furnished to the Company
by or on behalf of any Underwriter through the Representatives or by
or on behalf of the Selling Shareholders, specifically for use in the
preparation thereof.
(ix) There are no contracts or other documents that are
required by the Act or by the Rules and Regulations to be filed as
exhibits to the Registration Statement that have not been so filed.
The description in the Prospectus of material contracts and other
documents is accurate in all material respects; to the knowledge of
the Company, all material contracts described in or filed as exhibits
to the Registration Statement are in full force and effect on the date
hereof and are enforceable by the Company in accordance with their
respective terms; and neither the Company nor any of its Subsidiaries,
nor, to the Company's knowledge, any other party, is in breach of or
default under any such contracts.
(x) The consolidated financial statements of the Company and
the Subsidiaries, together with related notes and schedules as
incorporated by reference in the Registration Statement, present
fairly the financial position and the results of operations and cash
flows of the Company and the consolidated Subsidiaries, at the
indicated dates and for the indicated periods. Such financial
statements and related schedules have been prepared in accordance with
generally accepted principles of accounting, consistently applied
throughout the periods involved, except as disclosed therein, and all
adjustments necessary for a fair presentation of results for such
periods have been made. The summary financial and statistical data
included or incorporated by reference in the Registration Statement
presents in all material respects the information shown therein and
such data has been compiled on a basis consistent with the financial
statements presented therein and the books and records of the Company.
The pro forma financial statements and other pro forma financial
information incorporated by reference in the Registration Statement
and the Prospectus present fairly the information shown therein, have
been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements, have been properly
compiled on the pro forma bases described therein, and, in the opinion
of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein.
(xi) Xxxxxx Xxxxxxxx LLP, who have certified certain of the
financial statements filed with the Commission and incorporated by
reference in the Registration Statement, are independent public
accountants as required by the Act and the Rules and Regulations.
Xxxxx Xxxxxxxx LLP, who have certified the financial statements of
certain of the Subsidiaries that were used in preparing certain of the
financial statements referred to in the preceding sentence, are
independent public accountants as required by the Act and the Rules
and Regulations.
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(xii) There is no action, suit, claim or proceeding pending
or, to the knowledge of the Company, threatened against the Company or
any of the Subsidiaries before any court or administrative agency or
otherwise that if determined adversely to the Company or any of its
Subsidiaries might result in any material adverse change in the
earnings, business, properties, assets, rights, operations or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a
whole or to prevent the consummation of the transactions contemplated
hereby.
(xiii) The Company and the Subsidiaries have good and
indefeasible title to all of the properties and assets reflected in
the financial statements described in clause (x) above (or as
described in the Registration Statement), subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the
Registration Statement or in a document filed as an exhibit to the
Registration Statement) or that are not material in amount. The
Company and the Subsidiaries occupy their leased properties under
valid and binding leases.
(xiv) The Company and the Subsidiaries have filed all federal
state, local and foreign tax returns that have been required to be
filed and have paid all taxes indicated by said returns and all
assessments received by them or any of them to the extent that such
taxes have become due and are not being contested in good faith and for
which an adequate reserve for accrual has been established in
accordance with generally accepted accounting principles and except for
such taxes the nonpayment of which would not have a material adverse
affect on the earnings, business, properties, assets, rights,
operations or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole. All tax liabilities have been adequately
provided for in the financial statements of the Company, and the
Company does not know of any actual or proposed additional material tax
assessments.
(xv) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or
supplemented, there has not been any material adverse change or any
development involving a prospective material adverse change in or
affecting the earnings, business, properties, assets, rights,
operations or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole, whether or not occurring in the ordinary
course of business, and there has not been any material transaction
entered into or any material transaction that is probable of being
entered into by the Company or the Subsidiaries, other than
transactions in the ordinary course of business and changes and
transactions described in the Registration Statement, as it may be
amended or supplemented. The Company and the Subsidiaries have no
material contingent obligations that are required to be disclosed in
the Company's financial statements included or incorporated by
reference in the Registration Statement and are not so disclosed.
(xvi) Neither the Company nor any of the Subsidiaries is or
with the giving of notice or lapse of time, or both, will be in
violation of or in default under its charter, by-laws or other
governing documents or under any agreement, lease, contract,
indenture or other instrument
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or obligation to which it is a party or by which it, or any of its
properties, is bound except for such violations or defaults that would
not reasonably be expected to have a material adverse effect on the
business, properties, assets, rights, operations or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a
whole. The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not (1) violate or conflict with
any provision of the charter, by-laws or other governing documents of
the Company or any of its Subsidiaries, (2) conflict with or result in
a breach of any of the terms or provisions of, or constitute a default
(or an event that, with the giving of notice or lapse of time, or both,
would constitute a default) under, or require, except for such consents
as have been obtained and are currently in effect, consent under, or
result in the creation or imposition of any lien, charge, security
interest or encumbrance upon any property or assets of the Company or
any of its Subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, franchise, license, permit or other agreement,
understanding or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them or their respective
properties or assets may be bound or (3) violate or conflict with any
judgment, decree, order, statute, rule or regulation applicable to the
Company or any Subsidiary of any court or of any public, governmental
or regulatory body or agency having jurisdiction over the Company or
any of its Subsidiaries or any of their respective properties or
assets, except for any such violation, conflict, breach, default or
lien specified in clause (1), (2) or (3) above as would, in the
aggregate, not have a material adverse effect on the Company and its
Subsidiaries taken as a whole.
(xvii) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by the Company of this Agreement and the
consummation of the transactions herein contemplated (except such
additional steps as may be required by the Commission, the National
Association of Securities Dealers, Inc. (the "NASD") or such
additional steps as may be necessary to qualify the Shares for public
offering by the Underwriters under state securities or Blue Sky laws)
has been obtained or made and is in full force and effect.
(xviii) The Company has timely filed all reports required to
be filed under the Act and the Rules and Regulations and the Exchange
Act and the rules and regulations promulgated thereunder; and all such
reports, and any amendments or supplements thereto, complied at the
time filed in all material respects with the provisions, as
appropriate, of the Act and the Rules and Regulations or the Exchange
Act and the rules and regulations promulgated thereunder.
(xix) The Company and each of its Subsidiaries own or possess
adequate rights to use all patents, trademarks, trademark
registrations, service marks, service xxxx registrations, trade names,
mask works, copyrights, licenses, inventions, trade secrets and rights
necessary for the conduct of their business as described in the
Prospectus, and the Company is not aware of any claim to the contrary
or any challenge by any other person to the rights of the
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Company and each of its Subsidiaries with respect to the foregoing. To
the knowledge of the Company, the business of the Company and each of
the Subsidiaries as now conducted does not infringe or conflict with,
in any material respect, patents, trademarks, service marks, trade
names, mask works, copyrights, licenses, inventions, trade secrets or
other intellectual property or franchise rights of any person or
entity which infringement or conflict has not been resolved. No claim
has been made alleging the infringement by the Company or any
Subsidiary of any patent, trademark, service xxxx, trade name, mask
work, copyright, license, invention, trade secret or other
intellectual property or franchise right of any person or entity. The
Company or one of its Subsidiaries has clear title to its patents and
patent applications reflected in the financial statements described in
clause (x) above or discussed in the Registration Statement or the
Prospectus. The Company knows of no material infringement by others of
patents, trademarks, service marks, trade names, mask works,
copyrights, licenses, inventions, trade secrets or other intellectual
property or franchise rights owned by or licensed to the Company or
one of its Subsidiaries.
(xx) Neither the Company, nor to the Company's knowledge, any
of its Subsidiaries, has taken or may take, directly or indirectly,
any action designed to cause or result in, or that has constituted or
that might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Shares to facilitate
the sale or resale of the Shares. The Company acknowledges that the
Underwriters may engage in passive market making transactions in the
Shares on The NASDAQ Stock Market in accordance with Regulation M
under the Exchange Act.
(xxi) Neither the Company nor any Subsidiary is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940, (as amended, the "1940 Act") and the
rules and regulations of the Commission thereunder.
(xxii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (1)
transactions are executed in accordance with management's general or
specific authorization; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (3) access to assets is permitted only in
accordance with management's general or specific authorization; and
(4) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xxiii) The Company and each of its Subsidiaries carry, or
are covered by, insurance issued by insurers of recognized financial
responsibility against such losses and risks and in such amounts as is
customary for companies of comparable size engaged in a similar
business; and neither the Company nor any such Subsidiary has any
reason to believe that it will not be able to renew its existing
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not result in any material adverse change
in the earnings, business, properties, assets, rights, operations or
condition (financial or otherwise) of the
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Company and its Subsidiaries taken as a whole or to prevent the
consummation of the transactions contemplated hereby.
(xxiv) The Company and each of its Subsidiaries are in
compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has
occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company or any of its Subsidiaries would have any material
liability; neither the Company nor any of its Subsidiaries has
incurred or expects to incur material liability under (1) Title IV of
ERISA with respect to termination of, or withdrawal from, any "pension
plan" or (2) Sections 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for
which the Company or any of its Subsidiaries would have any liability
that is intended to be qualified under Section 401(a) of the Code is
so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, that would cause the loss of
such qualification.
(xxv) To the Company's knowledge, there are no affiliations
or associations between any member of the NASD and any of the
Company's officers, directors or 5% or greater securityholders.
(xxvi) To the Company's knowledge, no labor problem exists or
is imminent with respect to the Company's employees or employees of any
of the Subsidiaries that could reasonably be expected to have a
material adverse effect on the earnings, business, properties, assets,
rights, operations or condition (financial or otherwise) of the Company
and its Subsidiaries taken as a whole or to prevent the consummation of
the transactions contemplated hereby.
(xxvii) Neither the Company nor any of its Subsidiaries nor,
to the Company's knowledge, any officer or director purporting to act
on behalf of the Company or any of its Subsidiaries has at any time:
(1) made any contributions to any candidate for political office, or
failed to disclose fully any such contributions, in violation of law;
or (2) made any payment to any state, federal or foreign governmental
officer or official or other person charged with similar public or
quasi-public duties, other than payments required or allowed by
applicable law.
(xviii) Neither the Company nor any of its Subsidiaries is
required to register as a "broker" or "dealer" in accordance with the
provisions of the Exchange Act or the rules and regulations
promulgated thereunder.
(xxix) The Company and each of the Subsidiaries have complied
and will comply with all the provisions of Florida Statutes, Section
517.075 (Chapter 92-198, Laws of Florida). Neither the Company nor any
of its Subsidiaries does business with the government of Cuba or any
person or affiliate located in Cuba.
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(xxx) Neither the Company nor any of its Subsidiaries is in
violation of (1) any applicable foreign, federal, state, provincial or
local laws or regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants, including, without limitation, the United
States Environmental Protection Act, the United States Toxic Substances
Control Act and the United States Occupational Safety and Health Act
(or their foreign equivalents) ("Environmental Laws"); (2) any
applicable foreign, federal, state, provincial or local laws or
regulations relating to discrimination in the hiring, promoting or
paying of employees; or (3) any applicable foreign, federal, state,
provincial or local wages and hours laws or regulations; which, in each
case, could reasonably be expected to have a material adverse effect on
the earnings, business, properties, assets, rights, operations or
condition (financial or otherwise) of the Company and its Subsidiaries
taken as a whole or to prevent the consummation of the transactions
contemplated hereby.
(xxxi) The Company and each of its Subsidiaries have such
permits, licenses, certificates, franchises and authorizations of
governmental or regulatory authorities ("permits"), including, without
limitation, under any applicable Environmental Law, as are necessary to
own or lease and operate their properties and to conduct their
business, except for those permits, the absence of which could not
reasonably be expected to have a material adverse effect on the
earnings, business, properties, assets, rights, operations or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a
whole or to prevent the consummation of the transactions contemplated
hereby; the Company and each of its Subsidiaries have fulfilled and
performed all material obligations with respect to such permits and no
event has occurred that allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such permit; and
such permits contain no restrictions that are burdensome to the Company
or any of its Subsidiaries, except for such restrictions that could not
reasonably be expected to have a material adverse effect on the
business or condition (financial or otherwise) of the Company or any of
its Subsidiaries taken as a whole.
(b) Each of the Selling Shareholders, severally and not jointly,
represents and warrants to each of the Underwriters, as of the date hereof, as
of the Closing Date and as of the Option Closing Date (with respect to those
Selling Shareholders offering Option Shares), as follows:
(i) Such Selling Shareholder has all requisite power,
authority, authorizations, approvals, orders and consents to enter
into this Agreement and the Letter of Transmittal and Custody
Agreement referred to below and to carry out the provisions and
conditions hereof and thereof.
(ii) This Agreement and the Letter of Transmittal and Custody
Agreement referred to below have been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder and each
constitutes a legal, valid and binding agreement of such Selling
Shareholder and is enforceable in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance,
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moratorium or similar laws relating to or affecting creditors' rights
generally and by general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at law)
and except as rights to indemnity and contribution hereunder may be
limited under applicable law.
(iii) All information pertaining to such Selling Shareholder
furnished in writing by the Selling Shareholder expressly for use in
the Registration Statement or the Prospectus 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.
(iv) Such Selling Shareholder has and will have good and
valid title to the Firm Shares and any Option Shares to be sold by
such Selling Shareholder pursuant hereto, free and clear of all
security interests, liens, encumbrances, equities and other claims,
and full right, power and authority to effect the sale and delivery of
such Firm Shares and Option Shares; and upon the delivery of, against
payment for, such Firm Shares and Option Shares pursuant to this
Agreement, the Selling Shareholder will deliver to the Underwriters
good and valid title thereto, free and clear of all security
interests, liens, encumbrances, equities and other claims.
(v) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to, or that has
constituted, or that might reasonably be expected to cause or result
in the stabilization or manipulation of the price of the Common Shares
of the Company and, other than as permitted by the Act, the Selling
Shareholder will not distribute any prospectus or other offering
material in connection with the offering of the Shares.
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2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES.
(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the Sellers
agree to sell to the Underwriters and each Underwriter agrees, severally and
not jointly, to purchase, at a price of $_____ per share, the number of Firm
Shares set forth opposite the name of each Underwriter in Schedule I hereof,
subject to adjustments in accordance with Section 9 hereof. The number of Firm
Shares to be purchased by each Underwriter from each Seller shall be as nearly
as practicable in the same proportion to the total number of Firm Shares being
sold by each Seller as the number of Firm Shares being purchased by each
Underwriter bears to the total number of Firm Shares to be sold hereunder. The
obligations of the Company and of each of the Selling Shareholders shall be
several and not joint.
(b) Certificates in negotiable form for the total number of the Shares
to be sold hereunder by the Selling Shareholders have been placed in custody
with Xxxxxxx X. Xxxxxxxx as custodian (the "Custodian") pursuant to that
certain letter of transmittal and agreement between the Selling Shareholders
and the Custodian (the "Letter of Transmittal and Custody Agreement") executed
by each Selling Shareholder for delivery of all Firm Shares and any Option
Shares to be sold hereunder by the Selling Shareholders. Each of the Selling
Shareholders specifically agrees that the Firm Shares and any Option Shares
represented by the certificates held in custody for the Selling Shareholders
under the Letter of Transmittal and Custody Agreement are subject to the
interests of the Underwriters hereunder, that the arrangements made by the
Selling Shareholders for such custody are irrevocable to that extent, and that
the obligations of the Selling Shareholders hereunder shall not be terminable
by any act or deed of the Selling Shareholders (or by any other person, firm or
corporation including the Company, the Custodian or the Underwriters) or by
operation of law (including the death of an individual Selling Shareholder or
the dissolution of a corporate Selling Shareholder) or by the occurrence of any
other event or events, except as set forth in the Letter of Transmittal and
Custody Agreement. If any such event should occur prior to the delivery to the
Underwriters of the Firm Shares or the Option Shares hereunder, certificates
for the Firm Shares or the Option Shares, as the case may be, shall be
delivered by the Custodian in accordance with the terms and conditions of this
Agreement as if such event has not occurred. The Custodian is authorized to
receive and acknowledge receipt of the proceeds of sale of the Shares held by
it against delivery of such Shares.
(c) Payment for the Firm Shares to be sold hereunder is to be made in
federal (same day) funds to an account designated by the Company for the shares
to be sold by it and to an account designated by the Custodian for the shares
to be sold by the Selling Shareholders, in each case against delivery of
certificates therefor to the Representatives for the several accounts of the
Underwriters. Such payment and delivery are to be made at the offices of BT
Alex. Xxxxx Incorporated at 10:00 a.m., New York time, on the third business
day after the date of this Agreement or at such other time and date not later
than five business days thereafter as the Representatives and the Company shall
agree upon, such time and date being herein referred to as the "Closing Date."
(As used herein, "business day" means a day on which the New York Stock
Exchange is open for trading and on which banks in New York are open for
business and not permitted by law or executive order to be closed.) The
certificates for the Firm Shares will be delivered in such denominations and in
such registrations as the Representatives request in writing not later than the
second full business day prior
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to the Closing Date, and will be made available for inspection by the
Representatives at least one business day prior to the Closing Date.
(d) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company and certain of the Selling Shareholders listed on Schedule III hereto
hereby grant an option to the several Underwriters to purchase the Option
Shares at the price per share as set forth in paragraph (a) of this Section 2.
The maximum number of Option Shares to be sold by the Company and the Selling
Shareholders is set forth opposite their respective names on Schedule III
hereto. The option granted hereby may be exercised in whole or in part by
giving written notice (i) at any time before the Closing Date and (ii) only
once thereafter within 30 days after the date of this Agreement, by you, as
Representatives of the several Underwriters, to the Company, the
Attorney-in-Fact and the Custodian setting forth the number of Option Shares as
to which the several Underwriters are exercising the option, the names and
denominations in which the Option Shares are to be registered and the time and
date at which such certificates are to be delivered. If the option granted
hereby is exercised in part, the respective number of Option Shares to be sold
by the Company and each of the Selling Shareholders listed in Schedule III
hereto shall be determined on a pro rata basis in accordance with the
percentages set forth opposite their names on Schedule III hereto, adjusted by
you in such manner as to avoid fractional shares. The time and date at which
certificates for Option Shares are to be delivered shall be determined by the
Representatives but shall not be earlier than three nor later than 10 full
business days after the exercise of such option, nor in any event prior to the
Closing Date (such time and date being herein referred to as the "Option
Closing Date"). If the date of exercise of the option is three or more days
before the Closing Date, the notice of exercise shall set the Closing Date as
the Option Closing Date. The number of Option Shares to be purchased by each
Underwriter shall be in the same proportion to the total number of Option
Shares being purchased as the number of Firm Shares being purchased by such
Underwriter bears to the total number of Firm Shares, adjusted by you in such
manner as to avoid fractional shares. The option with respect to the Option
Shares granted hereunder may be exercised only to cover over-allotments in the
sale of the Firm Shares by the Underwriters. You, as Representatives of the
several Underwriters, may cancel such option at any time prior to its
expiration by giving written notice of such cancellation to the Company and the
Attorney-in-Fact. To the extent, if any, that the option is exercised, payment
for the Option Shares shall be made on the Option Closing Date in federal (same
day) funds to an account designated by the Company for the shares to be sold by
it and to an account designated by the Custodian for the shares to be sold by
the Selling Shareholders, in each case against delivery of certificates
therefor at the offices of BT Alex. Xxxxx Incorporated on the Option Closing
Date.
(e) If on the Closing Date or Option Closing Date, as the case may be,
any Selling Shareholder fails to sell the Firm Shares or Option Shares that
such Selling Shareholder has agreed to sell on such date as set forth in
Schedule II or Schedule III hereto, as applicable, the Company agrees that it
will sell or arrange for the sale of that number of shares of Common Shares to
the Underwriters that represents Firm Shares or the Option Shares that such
Selling Shareholder has failed to so sell, as set forth in Schedule II or
Schedule III hereto, as applicable, or such lesser number as may be requested
by the Representatives.
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3. OFFERING BY THE UNDERWRITERS.
It is understood that the several Underwriters are to make a public
offering of the Firm Shares as soon as the Representatives deem it advisable to
do so. The Firm Shares are to be initially offered to the public at the initial
public offering price set forth in the Prospectus. The Representatives may from
time to time thereafter change the public offering price and other selling
terms. To the extent, if at all, that any Option Shares are purchased pursuant
to Section 2 hereof, the Underwriters will offer them to the public on the
foregoing terms.
It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Shares in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters.
4. COVENANTS OF THE COMPANY AND THE SELLING SHAREHOLDERS.
(a) The Company covenants and agrees with each of the Underwriters
that:
(i) The Company will (A) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in
Rule 430A of the Rules and Regulations is followed, to prepare and
timely file with the Commission under Rule 424 of the Rules and
Regulations a Prospectus in a form approved by the Representatives
containing information previously omitted at the time of effectiveness
of the Registration Statement in reliance on Rule 430A of the Rules
and Regulations, (B) not file any amendment to the Registration
Statement or supplement to the Prospectus or document incorporated by
reference therein of which the Representatives shall not previously
have been advised and furnished with a copy or to which the
Representatives shall have reasonably objected in writing or that is
not in compliance with the Rules and Regulations and (C) file on a
timely basis all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
subsequent to the date of the Prospectus and prior to the termination
of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives promptly (A)
when the Registration Statement or any post-effective amendment
thereto shall have become effective, (B) of receipt of any comments
from the Commission, (C) of any request of the Commission for
amendment of the Registration Statement or for supplement to the
Prospectus or for any additional information and (D) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the use of the Prospectus or of the
institution of any proceedings for that purpose. The Company will use
its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus and to obtain as
soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws
of such jurisdictions as the Representatives may reasonably have
designated in writing and will make such applications, file such
documents,
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and furnish such information as may be reasonably required for that
purpose, provided 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 where it is not now so qualified or required to
file such a consent. The Company will, from time to time, prepare and
file such statements, reports, and other documents, as are or may be
required to continue such qualifications in effect for so long a
period as the Representatives may reasonably request for distribution
of the Shares.
(iv) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary
Prospectus as the Representatives may reasonably request. The Company
will deliver to, or upon the order of, the Representatives during the
period when delivery of a Prospectus is required under the Act, as
many copies of the Prospectus in final form, or as thereafter amended
or supplemented, as the Representatives may reasonably request. The
Company will deliver to the Representatives at or before the Closing
Date, four signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will
deliver to the Representatives such number of copies of the
Registration Statement (including such number of copies of the
exhibits filed therewith that may reasonably be requested), including
documents incorporated by reference therein, and of all amendments
thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of
the Commission thereunder, so as to permit the completion of the
distribution of the Shares as contemplated in this Agreement and the
Prospectus. If during the period in which a prospectus is required by
law to be delivered by an Underwriter or dealer, any event shall occur
as a result of which, in the judgment of the Company or in the
reasonable opinion of the Underwriters, it becomes necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, not misleading, or, if it is necessary at
any time to amend or supplement the Prospectus to comply with any law,
the Company promptly will either (1) prepare and file with the
Commission an appropriate amendment to the Registration Statement or
supplement to the Prospectus or (2) prepare and file with the
Commission an appropriate filing under the Exchange Act that shall be
incorporated by reference in the Prospectus so that the Prospectus as
so amended or supplemented will not, in the light of the circumstances
when it is so delivered, be misleading, or so that the Prospectus will
comply with the law.
(vi) The Company will make generally available to its
security holders, as soon as it is practicable to do so, but in any
event not later than 15 months after the effective date of the
Registration Statement, an earning statement (which need not be
audited) in reasonable detail, covering a period of at least 12
consecutive months beginning after the effective date of the
Registration Statement, which earning statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations.
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(vii) Prior to the Closing Date, the Company will furnish to
the Underwriters, as soon as they have been prepared by or are
available to the Company, a copy of any unaudited interim financial
statements of the Company for any period subsequent to the period
covered by the most recent financial statements included or
incorporated by reference in the Registration Statement or the
Prospectus.
(viii) The Company will not, for a period of 90 days
following the date of this Agreement, otherwise than hereunder or with
the prior written consent of BT Alex. Xxxxx Incorporated, offer, sell
or contract to sell or otherwise dispose of, directly or indirectly,
any Common Shares of the Company or any securities convertible into,
or exchangeable or exercisable for, Common Shares, except for Common
Shares issued to certain persons in connection with Company
acquisitions, provided such persons agree to be bound by the terms
hereof.
(ix) The Company will use its best efforts to list, subject
to notice of issuance, the Shares on The NASDAQ Stock Market.
(x) The Company has caused the Company's Supervisory
Directors, executive officers and certain shareholders who in the
aggregate beneficially own 775,822 shares to furnish to the
Representatives, on or prior to the date of this Agreement, a letter
or letters, in form and substance satisfactory to the Underwriters,
pursuant to which each such person shall agree not to offer, sell or
contract to sell or otherwise dispose of, directly or indirectly, any
Common Shares of the Company, or any securities convertible into, or
exchangeable or exercisable for Common Shares, owned by such person or
request the registration for the offer or sale of any of the foregoing
(or as to which such person has the right to direct the disposition
of) for a period of 90 days following the date of this Agreement,
except with the prior written consent of BT Alex. Xxxxx Incorporated
("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of
the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Shares in such a
manner as would require the Company or any of the Subsidiaries to
register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of organization of the Company, a
registrar for the Common Shares.
(xiv) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company to
facilitate the sale or resale of the Shares.
(b) Each of the Selling Shareholders covenants and agrees with each
of the Underwriters that:
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(i) Such Selling Shareholder will not, for a period of 90
days following the date of this Agreement, otherwise than hereunder or
with the prior written consent of BT Alex. Xxxxx Incorporated, offer,
sell or contract to sell or otherwise dispose of, directly or
indirectly, or request the registration for the offer or sale of any
of the foregoing (or as to which the Selling Shareholder has the right
to direct the disposition of) any Common Shares of the Company or any
securities convertible into, or exchangeable or exercisable for,
Common Shares.
(ii) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 and the Interest and Dividend Tax
Compliance Act of 1983 with respect to the transactions herein
contemplated, each of the Selling Shareholders agrees to deliver to
the Representatives prior to or at the Closing Date a properly
completed and executed United States Treasury Department Form W-8 or
W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or
indirectly, any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any securities of the
Company to facilitate the sale or resale of the Shares.
5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Company under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting
fees of the Company; the fees and disbursements of counsel for the Company and
the Selling Shareholders (except for the fees and disbursements of counsel for
First Britannia Mezzanine N.V.); the cost of printing and delivering to, or as
requested by, the Underwriters copies of the Registration Statement,
Preliminary Prospectuses, the Prospectus, this Agreement, the Underwriters'
Invitation Letter, the Blue Sky Survey and any supplements or amendments
thereto; the filing fees of the Commission; the filing fees and expenses
(including reasonable fees and disbursements of counsel for the Underwriters)
incident to securing any required review by the NASD of the terms of the sale
of the Shares; the Listing Fee of the NASDAQ Stock Market; and the expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters, incurred in connection with the qualification of the Shares under
state securities or Blue Sky laws. To the extent, if at all, that any of the
Selling Shareholders engage special legal counsel to represent them in
connection with this offering, the fees and expenses of such counsel shall be
borne by such Selling Shareholder. If this Agreement shall not be consummated
because the conditions in Section 6 hereof are not satisfied, or because this
Agreement is terminated by the Representatives pursuant to Sections 11(a)(i),
11(a)(vi) and 11(b) hereof, or by reason of any failure, refusal or inability
on the part of the Company or the Selling Shareholders to perform any
undertaking or satisfy any condition of this Agreement or to comply with any of
the terms hereof on their part to be performed, unless such failure to satisfy
said condition or to comply with said terms be due to the default or omission
of any Underwriter, then the Company shall reimburse the several Underwriters
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for reasonable out-of-pocket expenses, including reasonable fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Shares or in contemplation of performing
their obligations hereunder; but the Company and the Selling Shareholders shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters to purchase the Firm
Shares on the Closing Date and the Option Shares, if any, on the Option Closing
Date are subject to the accuracy, as of the Closing Date or the Option Closing
Date, as the case may be, of the representations and warranties of the Company
and the Selling Shareholders contained herein, and to the performance by the
Company and the Selling Shareholders of their covenants and obligations
hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings required by Rule
424 and Rule 430A of the Rules and Regulations shall have been made, and any
request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the
Representatives and complied with to their reasonable satisfaction. No stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and no proceedings for that purpose
shall have been taken or, to the knowledge of the Company or the Selling
Shareholders, shall be contemplated by the Commission and no injunction,
restraining order, or order of any nature by a federal or state court of
competent jurisdiction shall have been issued as of the Closing Date that would
prevent the issuance of the Shares.
(b) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinions of Xxxxx Dutilh, special
Netherlands counsel to the Company, dated the Closing Date or the Option
Closing Date, as the case may be, addressed to the Underwriters (and stating
that it may be relied upon by Xxxxxx & Xxxxxx L.L.P., special U.S. counsel to
the Company, and by Xxxxxxx & Xxxxx L.L.P., counsel to the Underwriters) to
the effect that:
(i) The Company has been duly organized and is validly
existing as a Naamloze Vennootschap in good standing under the laws of
The Netherlands, with full corporate power and authority to own or
lease and operate its properties and to conduct its business as
described in the Registration Statement;
(ii) Each of Core Laboratories International B.V.
("CLI B.V.") and Saybolt International B.V. ("SI B.V.") has been duly
organized and is validly existing as a Besloten Vennootschap in good
standing under the laws of The Netherlands, with full corporate power
and authority to own or lease and operate its properties and to
conduct its business as described in the Registration Statement;
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(iii) All the outstanding shares of capital stock of CLI
B.V. and SI B.V. have been duly authorized and validly issued and are
fully paid and non-assessable and, except as otherwise set forth in
the Registration Statement or Exhibit A to this Agreement, all
outstanding shares of capital stock of each of CLI B.V. and SI B.V.
are owned, directly or indirectly, by the Company free and clear of
security interests, liens, encumbrances, equities or other claims;
(iv) Except as disclosed or incorporated by reference in the
Registration Statement, there are no preemptive or other rights to
subscribe for or to purchase shares of capital stock of the Company
pursuant to any applicable statute, the Articles of Association or
other constituent documents of the Company or, to such counsel's
knowledge, any agreement or other instrument to which the Company is a
party as to which any person can successfully maintain an action, suit
or proceeding against the Company for violation of his or her
preemptive rights with respect to the issuance of any shares of
capital stock of the Company;
(v) All of the Company's issued and outstanding capital stock
has been duly authorized, validly issued and is fully paid and
non-assessable as of the date hereof and the capitalization of the
Company conforms in all material respects to the descriptions thereof
and the statements made with respect thereto in the Registration
Statement;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company and the Company has full corporate power and
authority to enter into the Agreement;
(vii) No consent, approval, authorization or order of any
court or governmental agency or body is required in connection with
the sale of the Shares pursuant to this Agreement, except such as may
be required under the securities and Blue Sky laws of any jurisdiction
in connection with the purchase and distribution of the Shares by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained;
(viii) None of the execution and delivery of this Agreement,
the consummation of any other of the transactions herein contemplated,
or the fulfillment of the terms hereof, will result in a breach of, or
constitute a default under (a) any law, statute, rule, order,
regulation, consent or memorandum of understanding of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of the
Subsidiaries of which such counsel is aware and that is known by such
counsel to be applicable to the Company or any of the Subsidiaries
(where such conflict, breach or default would have a material adverse
effect on the earnings, business, management, properties, assets,
rights, operations, condition (financial or otherwise) or prospects of
the Company and its Subsidiaries taken as a whole) or (b) the Articles
of Association of the Company;
(ix) The Shares have been duly and validly authorized by the
Company for issuance and the Company has full corporate power and
authority to issue, sell and deliver the Shares; and, when the Shares
are issued and delivered against payment therefor as provided in this
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Agreement, the Shares will have been validly issued and will be fully
paid and non-assessable, and the issuance of such Shares will not be
subject to any statutory preemptive rights or similar statutory rights
or, to such counsel's knowledge, any other preemptive or similar
rights;
(x) The certificates for the Shares are in due and proper
form under the laws of The Netherlands and the Articles of Association
of the Company and conform with the form of certificates duly
authorized by the Board of Supervisory Directors of the Company. The
form of certificates for the Shares conforms to the corporate law of
the jurisdiction of the Company's organization and, when executed and
delivered in definitive form, will be sufficient to convey the
interest in the Company purported to be evidenced thereby;
(xi) The Shares, when issued, will conform in all material
respects to the description thereof contained in the Prospectus under
the caption "Description of Share Capital";
(xii) Except as described in or contemplated by the
Prospectus, to the knowledge of such counsel, there are no outstanding
securities of the Company convertible or exchangeable into or
evidencing the right to purchase or subscribe for any shares of
capital stock of the Company and there are no outstanding or
authorized options, warrants or rights of any character obligating the
Company to issue any shares of its capital stock or any securities
convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such stock; and except as described in
the Prospectus, to the knowledge of such counsel, no holder of any
securities of the Company or any other person has the right,
contractual or otherwise, that has not been satisfied or effectively
waived, to cause the Company to sell or otherwise issue to them, or to
permit them to underwrite the sale of, any of the Shares or the right
to have any Common Shares or other securities of the Company included
in the Registration Statement or the right, as a result of the filing
of the Registration Statement, to require registration under the Act
of any shares of Common Shares or other securities of the Company; and
(xiii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
by the Selling Shareholders of the transactions on their part
contemplated by this Agreement in connection with the Shares to be
sold by the Selling Shareholders 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 Shares by the Underwriters.
The opinions of such counsel may relate solely to, be based solely upon and be
limited exclusively to the laws of The Netherlands.
(c) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinions of Xxxxxx & Xxxxxx
L.L.P., counsel for the Company, dated the Closing Date or the Option Closing
Date, as the case may be, addressed to the Underwriters (and
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stating that it may be relied upon by Xxxxxxx & Xxxxx L.L.P., counsel to the
Underwriters) to the effect that:
(i) Each of Core Laboratories, Inc., a Delaware corporation
("CLI"), and Saybolt Inc., a Delaware corporation ("SI"), has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its organization, with
corporate power and authority to own or lease and operate its
properties and conduct its business as described in the Registration
Statement;
(ii) All the outstanding shares of capital stock of CLI and
SI have been duly authorized and validly issued and are fully paid and
non-assessable, all outstanding shares of capital stock of CLI and SI
are owned, directly or indirectly, by the Company free and clear of
security interests, liens, encumbrances, equities or other claims,
except as otherwise set forth in the Registration Statement or Exhibit
A to this Agreement; and no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to
convert any obligations into any shares of capital stock or of
ownership interests in CLI or SI are outstanding;
(iii) Each of CLI and SI is duly registered and qualified to
transact business in all jurisdictions in which the conduct of its
business requires such qualification, or in which the failure to
qualify would have a materially adverse effect upon the business of the
Company and the Subsidiaries taken as a whole;
(iv) The Registration Statement has become effective under
the Act and, to the best of the knowledge of such counsel, no stop
order proceedings with respect thereto have been instituted or are
pending or threatened under the Act;
(v) Such counsel does not know of any contracts or documents
required to be filed as exhibits to or incorporated by reference in
the Registration Statement or described in the Registration Statement
that are not so filed, incorporated by reference or described as
required;
(vi) Such counsel knows of no material legal or governmental
proceedings pending or threatened against the Company or any of the
Subsidiaries required to be disclosed in the Prospectus that is not
adequately disclosed in the Prospectus;
(vii) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not (1) violate or
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conflict with any provision of the charter, by-laws or other governing
documents of the Company or any of its Subsidiaries, (2) conflict with
or result in a breach of any of the terms or provisions of, or
constitute a default (or an event that, with the giving of notice or
lapse of time, or both, would constitute a default) under, or require,
except for such consents as have been obtained and are currently in
effect, consent under, or result in the creation or imposition of any
lien, charge, security interest or encumbrance upon any property or
assets of the Company or any of its Subsidiaries pursuant to the terms
of any material indenture, mortgage, deed of trust, franchise,
license, permit or other agreement, understanding or instrument to
which the Company or any of its Subsidiaries is a party or by which
any of them or their respective properties or assets may be bound
which are identified on a schedule attached to such opinion or (3)
violate or conflict with any judgment, decree, order, statute, rule or
regulation of the United States, the State of Texas or the State of
Delaware applicable to the Company or any Subsidiary of any court or
of any public, governmental or regulatory body or agency having
jurisdiction over the Company or any of its Subsidiaries or any of
their respective properties or assets, which violation, conflict,
breach, default or lien would, in the aggregate, have a material
adverse effect on the Company and its Subsidiaries taken as a whole;
provided that no opinion is required to be given pursuant to this
subparagraph (viii) regarding federal or state securities laws;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company;
(ix) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or
other governmental body of the United States, the State of Texas or
the State of Delaware is necessary in connection with the execution
and delivery of this Agreement and the consummation of the
transactions herein contemplated (other than as may be required by the
NASD or as required by state securities and Blue Sky laws as to which
such counsel need express no opinion) except such as have been
obtained or made, specifying the same; and
(x) The Company is not, and will not become, as a result of
the consummation of the transactions contemplated by this Agreement,
and application of the net proceeds therefrom as described in the
Prospectus, required to register as an investment company under the
1940 Act.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that such counsel is of the opinion that the
Registration Statement and the Prospectus (except the financial statements and
other information of an accounting, financial or statistical nature) appear on
their face to comply as to form in all material respects with the requirements
of the Act. In passing upon the form of the Registration Statement and the
Prospectus, such counsel may state that they have necessarily assumed the
correctness and completeness of the statements made therein and that, because
the primary purpose of our engagement was not to establish or confirm factual
matters of financial, accounting or statistical matters or related data and
because of the wholly or partially nonlegal character of many of the statements
contained in the Registration Statement and the Xxxxxxxxxx,
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they are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus. Such counsel may state that they have
not independently verified the accuracy, completeness or fairness of such
statements and, that without limiting the foregoing, they assume no
responsibility for and have not independently verified the accuracy,
completeness or fairness of the financial statements and supporting schedules
and other financial, accounting or statistical data and related data included
in the Registration Statement (or the exhibits to the Registration Statement,
as to which they have not been asked to comment), and that they have not
examined the accounting or financial records from which such financial
statements, schedules and related data are derived. Such counsel may note that,
although certain portions of the Registration Statement (including financial
statements and supporting schedules, and related data) have been included
therein on the authority of "experts" within the meaning of the Securities Act,
they are not experts with respect to any portion of the Registration Statement,
including, without limitation, such financial statements and supporting
schedules and related data and other financial, accounting or statistical data
included therein. Such counsel shall state, however, that they have
participated in conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the independent
accountants of the Company and with representatives of the Underwriters, at
which the contents of the Registration Statement and Prospectus and related
matters were discussed, that they have also reviewed certain corporate
documents furnished to them by the Company, and, based on such participation
and review (relying as to materiality to a large extent upon the officers and
other representatives of the Company and upon representatives of the
Underwriters), no information has come to such counsel's attention that causes
them to believe that the Registration Statement, at the time it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, at its date or at
the date hereof, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they made,
not misleading.
(d) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinions of (1) Xxxxx, Xxxxxx &
Xxxxx, L.L.P. and (2) Xxxxx Dutilh, each counsel for certain of the
Selling Shareholders, dated the Closing Date or the Option Closing Date, as the
case may be, addressed to the Underwriters (and stating that it may be relied
upon by Xxxxxxx & Xxxxx L.L.P., counsel to the Underwriters) to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered on behalf of the Selling Shareholders;
(ii) Each Selling Shareholder has full legal right, power and
authority, and any approval required by law (other than as required by
state securities and Blue Sky laws as to which such counsel need
express no opinion), to sell, assign, transfer and deliver the portion
of the Shares to be sold by such Selling Shareholder;
(iii) The Letter of Transmittal and Custody Agreement
executed and delivered by each Selling Shareholder is valid and
binding; and
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(iv) The Underwriters (assuming that they are bona fide
purchasers within the meaning of the Uniform Commercial Code) have
acquired good and marketable title to the Shares being sold by each
Selling Shareholder on the Closing Date, and the Option Closing Date,
as the case may be, free and clear of all security interests, liens,
encumbrances, equities and other claims.
(e) The Representatives shall have received from Xxxxxxx & Xxxxx
L.L.P., counsel for the Underwriters, a favorable opinion dated the Closing
Date or the Option Closing Date, as the case may be, with respect to such
matters as may be reasonably requested by the Underwriters. In rendering such
opinion, Xxxxxxx & Xxxxx L.L.P. may rely as to all matters governed other than
by the general corporate laws of the State of Delaware and the laws of the
States of New York, Maryland and Texas or federal laws of the United States on
the opinions of counsel referred to in Paragraphs (b), (c) and (d) of this
Section 6. In addition, such opinion shall also include a statement to the
effect that nothing has come to the attention of such counsel that leads them
to believe that (i) the Registration Statement, or any amendment thereto, as of
the time it became effective under the Act (but after giving effect to any
modifications incorporated therein pursuant to Rule 430A under the Act) as of
the Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and (ii) the Prospectus, or any supplement thereto, on the date it
was filed pursuant to the Rules and Regulations and as of the Closing Date or
the Option Closing Date, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact, necessary in order to make
the statements, in the light of the circumstances under which they are made,
not misleading (except that such counsel need express no view as to financial
statements, schedules and statistical information therein). With respect to
such statement, Xxxxxxx & Xxxxx L.L.P. may state that their belief is based
upon the procedures set forth therein, but is without independent check and
verification.
(f) The Representatives shall have received at or prior to the Closing
Date from Xxxxxxx & Xxxxx L.L.P. a memorandum or summary, in form and substance
satisfactory to the Representatives, with respect to the qualification for
offering and sale by the Underwriters of the Shares under state securities or
Blue Sky laws of such jurisdictions as the Representatives may reasonably have
designated to the Company.
(g) The Representatives shall have received, on each of the dates
hereof, the Closing Date and the Option Closing Date, as the case may be, a
letter dated the date hereof, the Closing Date or the Option Closing Date, as
the case may be, in form and substance reasonably satisfactory to you, of
Xxxxxx Xxxxxxxx LLP confirming that they are independent public accountants
within the meaning of the Act and the applicable Rules and Regulations
thereunder and stating that in their opinion the financial statements and
schedules examined by them and included or incorporated by reference in the
Registration Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related published Rules
and Regulations; and containing such other statements and information as are
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial and statistical
information included or incorporated by reference in the Registration Statement
or the Prospectus.
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(h) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, a certificate or certificates of the
Chief Executive Officer and the Chief Financial Officer of the Company to the
effect that, as of the Closing Date or the Option Closing Date, as the case may
be, each of them severally represents as follows:
(1) The Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have
been taken or are, to his knowledge, contemplated by the Commission.
(2) The representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the Closing
Date or the Option Closing Date, as the case may be.
(3) All filings required to have been made pursuant to Rules
424 or 430A under the Act have been made.
(4) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, in his or her
opinion, there has not been any material adverse change or any
development involving a prospective material adverse change in or
affecting the condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole or the earnings, business,
properties, assets, rights, operations or condition (financial or
otherwise) of the Company and the Subsidiaries taken as a whole,
whether or not arising in the ordinary course of business.
(i) The Company and the Selling Shareholders shall have furnished to
the Representatives such further certificates and documents confirming the
representations and warranties, covenants and conditions contained herein and
related matters as the Representatives may reasonably have requested.
(j) The Firm Shares and Option Shares have been approved for listing
upon notice of issuance on the NASDAQ Stock Market.
(k) The Lockup Agreements described in Section 4(x) are in full force
and effect.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to the Representatives and to Xxxxxxx & Xxxxx
L.L.P., counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representatives by notifying the Company and the Selling Shareholders of
such termination in writing or by telegram at or prior to the Closing Date or
the Option Closing Date, as the case may be. In such event, the Selling
Shareholders, the Company and
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the Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE SELLERS.
The obligations of the Sellers to sell and deliver the portion of the
Shares required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing Date,
as the case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Company agrees:
(1) to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of the
Act, and each Selling Shareholder and each person, if any, who
controls any Selling Shareholder within the meaning of the Act,
against any losses, claims, damages or liabilities to which such
Underwriter, such Selling Shareholder or any such controlling person
may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto, or (ii) 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 any
act or failure to act; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or
such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by or through the
Representatives specifically for use in the preparation thereof;
provided, further, that the foregoing indemnity obligation with respect
to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages and liabilities purchased shares, or any person controlling
such Underwriter, if a copy of the Prospectus (as then amended or
supplemented) was not sent or given by or on behalf of such Underwriter
to such person and if the Prospectus (as so amended or
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supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities.
(2) to reimburse each Underwriter, each Selling Shareholder
and each such controlling person upon demand for any legal or other
out-of-pocket expenses reasonably incurred by such Underwriter, such
Selling Shareholder or such controlling person in connection with
investigating or defending any such loss, claim, damage or liability,
action or proceeding or in responding to a subpoena or governmental
inquiry related to the offering of the Shares, whether or not such
Underwriter, such Selling Shareholder or controlling person is a party
to any action or proceeding. In the event that it is finally
judicially determined that the Underwriters, the Selling Shareholders
or such controlling persons were not entitled to receive payments for
legal and other expenses pursuant to this subparagraph, the
Underwriters, the Selling Shareholders or such controlling persons
will promptly return all sums that had been advanced pursuant hereto.
This indemnity obligation will be in addition to any liability that the Company
may otherwise have.
(b) Each Selling Shareholder agrees to indemnify the Underwriters and
each person, if any, who controls any Underwriter within the meaning of the
Act, and the Company and each person, if any, who controls the Company within
the meaning of the Act, against any losses, claims, damages or liabilities to
which such Underwriter, the Company or controlling person may become subject
under the Act or otherwise insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof), arise out of or are
based on any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto or caused by any omission or
alleged omission to state therein, a material fact required to be stated therein
and necessary to make the statements therein not misleading, but only with
reference to information relating to such Selling Shareholder furnished to the
Underwriters or the Company in writing by such Selling Shareholder expressly for
use therein. In no event, however, shall the liability of any Selling
Shareholder for indemnification under this Section 8(a) exceed the proceeds,
less underwriting discounts and before expenses, received by such Selling
Shareholder from the Underwriters in the offering. This indemnity obligation
will be in addition to any liability that such Selling Shareholder and the
Company may otherwise have.
(c) Each Underwriter severally and not jointly will indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, the Selling Shareholders, and each person,
if any, who controls the Company or the Selling Shareholders within the meaning
of the Act, against any losses, claims, damages or liabilities to which the
Company or any such director, officer, Selling Shareholder or controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or (ii) the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made; and
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will reimburse any legal or other expenses reasonably incurred by the Company
or any such director, officer, Selling Shareholder or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that each Underwriter will
be liable in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission has been
made in the Registration Statement, any Preliminary Prospectus, the Prospectus
or such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives specifically for use in the preparation thereof. This indemnity
obligation will be in addition to any liability that such Underwriter may
otherwise have.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 8, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in Section
8(a), (b) or (c) shall be available to any party who shall fail to give notice
as provided in this Section 8(d) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
materially prejudiced by the failure to give such notice, but the failure to
give such notice shall not relieve the indemnifying party or parties from any
liability that it or they may have to the indemnified party for contribution or
otherwise than on account of the provisions of Section 8(a), (b) or (c). In
case any such proceeding 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 shall pay as incurred the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the indemnifying party shall pay as incurred (or
within 30 days of presentation) the fees and expenses of the counsel retained
by the indemnified party in the event (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them or (iii) the
indemnifying party shall have failed to assume the defense and employ counsel
reasonably acceptable to the indemnified party within a reasonable period of
time after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by the Representatives in the case of
parties indemnified pursuant to Section 8(a) or (b) and by the Company and the
Selling Shareholders in the case of parties indemnified pursuant to Section
8(c). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding of
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which indemnification may be sought hereunder (whether or not any indemnified
party is an actual or potential party to such claim, action or proceeding)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action
or proceeding.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Selling Shareholders on the one hand and the Underwriters on the other from
the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law 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 and the Selling
Shareholders on the one hand and the Underwriters on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, (or actions or proceedings in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Selling 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 (before deducting expenses) received by the Company
and the Selling Shareholders bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Selling 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, the Selling Shareholders and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section
8(e) 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
that does not take account of the equitable considerations referred to above in
this Section 8(e). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to above in this Section 8(e) 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 subsection (e), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts
and commissions applicable to the Shares purchased by such Underwriter, (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation, and (iii) no Selling Shareholder
shall be required to contribute any amount in excess of the proceeds, less
underwriting discounts and before expenses, received by such Selling
Shareholder from the
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Underwriters in the offering. The Underwriters' obligations in this Section
8(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any United States court having jurisdiction
over any other contributing party, agrees that process issuing from such court
may be served upon him or it by any other contributing party and consents to
the service of such process and agrees that any other contributing party may
join him or it as an additional defendant in any such proceeding in which such
other contributing party is a party. Solely for purposes of this Section 8(f),
the Company's United States agent for service of process is Xxxx X. Xxxxxx,
Core Laboratories Inc., 0000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxx 00000, or such
other person as is designated in writing by the Company.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company and the Selling Shareholders set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, its directors or officers
or any persons controlling the Company, or the Selling Shareholders or any
person controlling any Selling Shareholder (ii) acceptance of any Shares and
payment therefor hereunder, and (iii) the closing of the transactions
contemplated by this Agreement. A successor to any Underwriter, or to the
Company, its directors or officers, or any person controlling the Company, shall
be entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. DEFAULT BY UNDERWRITERS.
If on the Closing Date or the Option Closing Date, as the case may be,
any Underwriter shall fail to purchase and pay for the portion of the Shares
that such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company or a
Selling Shareholder), you, as Representatives of the Underwriters, shall use
your reasonable efforts to procure within 36 hours thereafter one or more of
the other Underwriters, or any others, to purchase from the Company and the
Selling Shareholders such amounts as may be agreed upon and upon the terms set
forth herein, the Firm Shares or Option Shares, as the case may be, that the
defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Firm Shares or Option Shares, as
the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to which
such default shall occur does not exceed 10% of the Firm Shares or Option
Shares, as the case may be, covered hereby, the other Underwriters shall be
obligated, severally, in proportion to the respective numbers of Firm Shares or
Option Shares, as the case may be, that they are obligated to purchase
hereunder, to purchase the Firm Shares or Option Shares, as the case may be,
that such defaulting Underwriter or
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Underwriters failed to purchase, or (b) if the aggregate number of shares of
Firm Shares or Option Shares, as the case may be, with respect to which such
default shall occur exceeds 10% of the Firm Shares or Option Shares, as the
case may be, covered hereby, the Company and the Selling Shareholders or you as
the Representatives of the Underwriters will have the right, by written notice
given within the next 36-hour period to the parties to this Agreement, to
terminate this Agreement without liability on the part of the non-defaulting
Underwriters or of the Company or of the Selling Shareholders except to the
extent provided in Section 8 hereof. In the event of a default by any
Underwriter or Underwriters, as set forth in this Section 9, the Closing Date
or Option Closing Date, as the case may be, may be postponed for such period,
not exceeding seven days, as you, as Representatives, may determine in order
that the required changes in the Registration Statement or in the Prospectus or
in any other documents or arrangements may be effected. The term "Underwriter"
includes any person substituted for a defaulting Underwriter. Any action taken
under this Section 9 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
10. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or telegraphed
and confirmed as follows: if to the Underwriters, to BT Alex. Xxxxx
Incorporated, Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: General
Counsel; with a copy to BT Alex. Xxxxx Incorporated, One Bankers Trust Plaza,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel; if to
the Company, to Core Laboratories N.V. c/o Core Laboratories, Inc., 0000
Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxx 00000, Attention: General Counsel; or, if sent
to the Selling Shareholders, at their respective addresses set forth on
Schedule II hereto.
11. TERMINATION.
(a) This Agreement may be terminated by you, as Representatives, by
notice to the Company and the Sellers at any time prior to the Closing Date if
any of the following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement, any material adverse change
or any development involving a prospective material adverse change in or
affecting the condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole or the earnings, business, management,
properties, assets, rights, operations, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole, whether or not
arising in the ordinary course of business; (ii) any outbreak or escalation of
hostilities or declaration of war or national emergency or other national or
international calamity or crisis or change in economic or political conditions
if the effect of such outbreak, escalation, declaration, emergency, calamity,
crisis or change on the financial markets of the United States would, in your
reasonable judgment, make it impracticable or inadvisable to market the Shares
or to enforce contracts for the sale of the Shares; (iii) suspension of trading
in securities generally on the New York Stock Exchange or the American Stock
Exchange or limitation on prices (other than limitations on hours or numbers of
days of trading) for securities on either such Exchange; (iv) the enactment,
publication, decree or other promulgation of any statute, regulation, rule or
order of any court or other governmental authority that in your
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reasonable judgment materially and adversely affects or may materially and
adversely affect the business or operations of the Company; (v) declaration of
a banking moratorium by United States or New York State authorities; (vi) the
suspension of trading of the Company's Common Shares by the NASDAQ Stock
Market, the Commission or any other governmental authority; or (vii) the taking
of any action by any governmental body or agency in respect of its monetary or
fiscal affairs that in your reasonable opinion has a material adverse effect on
the securities markets in the United States; or
(b) as provided in Sections 6 of this Agreement; or
(c) as provided in Section 9 of this Agreement.
12. SUCCESSORS.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Company and the Selling Shareholders and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
have any right or obligation hereunder. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign merely because of such
purchase.
13. INFORMATION PROVIDED BY UNDERWRITERS.
The Company, the Selling Shareholders and the Underwriters acknowledge
and agree that the only information furnished or to be furnished by any
Underwriter to the Company for inclusion in the Registration Statement consists
of the information set forth in the last paragraph on the front cover page
(insofar as such information relates to the Underwriters) of the Prospectus,
legends required by Item 502(d) of Regulation S-K under the Act and the
information in the third, seventh, eighth, ninth and tenth paragraphs under the
caption "Underwriting" in the Prospectus.
14. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants
in this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of
any Underwriter or controlling person thereof, or by or on behalf of the
Company or its directors or officers or the Selling Shareholders and (c)
delivery of and payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Maryland.
32
33
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Selling Shareholders,
the Company and the several Underwriters in accordance with its terms.
33
34
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Shareholder represents by so doing that he has been duly
appointed as Attorney-in-Fact by such Selling Shareholder pursuant to a validly
existing and binding power of attorney that authorizes such Attorney-in-Fact to
take such action.
Very truly yours,
CORE LABORATORIES N.V.
By:-------------------------------
Xxxxx X. Xxxxxxx, President
Selling Shareholders listed on Schedule II
By:
[Attorney-in-Fact]
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
BT ALEX. XXXXX INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, XXXXXXX & CO. INC.
XXXXXX XXXXXX & COMPANY, INC.
As Representatives of the several
Underwriters listed on Schedule I
By: BT Alex. Xxxxx Incorporated
By:
-----------------------------
Authorized Officer
34
35
SCHEDULE I
----------
SCHEDULE OF UNDERWRITERS
Number of Firm Shares
Underwriter to be Purchased
-----------
---------------------
BT Alex. Xxxxx Incorporated
Credit Suisse First Boston Corporation
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Xxxxxx & Company, Inc.
----------
3,754,278
Total ----------
Schedule I
36
SCHEDULE II
-----------
SCHEDULE OF SELLING SHAREHOLDERS
Number of Firm Shares
Selling Shareholder to be Sold
------------------- ---------------------
First Britannia Mezzanine N.V. 2,100,000
de Xxxxxxxxxx 00
Xxxxxxx, Xxxxxxxxxxx Antilles
Juliet Challenger, Inc. 188,339
c/o Xxxxxxx Xxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
cc: Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
HCC Investments, Inc. 29,224
c/o Xxxxxxx Xxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
cc: Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
ProTechnics II (Nevada), Inc. 19,000
Xxx Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxx, Xxxxxx 00000
Trustees of Grinnel College 6,470
0000 Xxxx Xxxxxx
Xxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxx, Treasurer
Schedule II-1
37
SCHEDULE OF SELLING SHAREHOLDERS
(continued)
Number of Firm Shares
Selling Shareholder to be Sold
------------------- ---------------------
4,471
Xxxxx Xxxxxxx
0000 Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Xxxxxx Xxxxx 2,744
000 Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxx 00000
Xxxxxxx Xxx Xxxxx 1,000
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Banner Partners 814
c/o Bryan & Xxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Bryco Investments 814
c/o Bryan & Xxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Xxxxxx X. Xxxxx, Xx. 412
000 Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Xxxx X. Xxxxx 000
000,000 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Schedule II-2
38
SCHEDULE OF SELLING SHAREHOLDERS
(continued)
Number of Firm Shares
Selling Shareholder to be Sold
------------------- ---------------------
The Xxxxx Children Trust #2 200
Xxxxxxxxx X. Xxxxx, Trustee
c/o Xxxxxx X. Xxxxx, Xx.
000 Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Xxxxxxxxx Xxxxx Xxxxx, Xxxxxx X. Xxxxx, Xx. and
Xxxx X. Xxxxx, Trustees Under the Will of X.X. Xxxxx 200
Xxxxxxxxx X. Xxxxx, Trustee
c/o Xxxxxx X. Xxxxx, Xx.
000 Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Xxxxxxx 1985 Limited Partnership 00
x/x Xxxxxxx Xxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
cc: Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
TOTAL [ 2,354,278 ]
-------------------------
Schedule II-3
39
SCHEDULE III
SCHEDULE OF OPTION SHARES
Maximum Number Percentage of
of Option Shares Total Number of
Name of Seller to be Sold Option Shares
-------------- ---------------- ---------------
Core Laboratories N.V. 225,257 40%
First Britannia Mezzanine N.V. 337,885 60%
---------------- --
TOTAL 563,142 100%
---------------- ---
Schedule III
40
EXHIBIT A
---------
SUBSIDIARIES
Subsidiary
----------
Core Laboratories, Inc.
Core Laboratories International B.V.
Saybolt International B.V.
Saybolt, Inc.
ProTechnics Company
Exhibit A
