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EXHIBIT 1.1
$155,000,000
XXXXXX DRILLING COMPANY
____% CONVERTIBLE SUBORDINATED NOTES DUE 2004
UNDERWRITING AGREEMENT
July _____, 1997
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXXXX & COMPANY, INC.
BEAR, XXXXXXX & CO. INC.
PRUDENTIAL SECURITIES INCORPORATED
As representatives of the
several Underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Drilling Company, a Delaware corporation (the "COMPANY"),
proposes to issue and sell $155,000,000 principal amount of its ____%
Convertible Subordinated Notes Due 2004 (the "FIRM SECURITIES") to the several
underwriters named in Schedule I hereto (the "UNDERWRITERS"). The Company also
proposes to issue and sell to the several Underwriters not more than
$20,000,000 additional principal amount of its ____% Convertible Subordinated
Notes (the "ADDITIONAL SECURITIES") if requested by the Underwriters as
provided in Section 2 hereof. The Firm Securities and the Additional
Securities are hereinafter referred to collectively as the "SECURITIES"). The
Securities are to be issued pursuant to the provisions of an Indenture to be
dated as of July __, 1997 (the "INDENTURE") between the Company and Texas
Commerce Bank National Association, as Trustee (the "TRUSTEE").
SECTION 1. Registration and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "ACT"), a registration statement on Form S-3, including a
prospectus, relating to the Securities. The registration statement, as amended
at the time it became effective, including the information (if any) deemed to
be part of the registration statement at the time of effectiveness pursuant
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to Rule 430A under the Act, is hereinafter referred to as the "REGISTRATION
STATEMENT"; and the prospectus in the form first used to confirm sales of
Securities is hereinafter referred to as the "PROSPECTUS" (including, in the
case of all references to the Registration Statement or the Prospectus,
documents incorporated therein by reference). If the Company has filed or is
required pursuant to the terms hereof to file a registration statement pursuant
to Rule 462(b) under the Act registering additional ____% Convertible
Subordinated Notes 2004 (a "RULE 462(b) REGISTRATION STATEMENT"), then, unless
otherwise specified, any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462(b) Registration Statement. The terms
"SUPPLEMENT" and "AMENDMENT" or "AMEND" as used in this Agreement with respect
to the Registration Statement or the Prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "EXCHANGE ACT") that are deemed to
be incorporated by reference in the Prospectus.
SECTION 2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each
Underwriter agrees, severally and not jointly, to purchase from the Company the
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule I hereto at ____% of the principal amount thereof (the "PURCHASE
PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Securities and the Underwriters shall have the right to
purchase, severally and not jointly, up to $18,750,000 Additional Securities
from the Company at the Purchase Price. Additional Securities may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Securities. The Underwriters may exercise their right to
purchase Additional Securities in whole or in part at any time by giving
written notice thereof to the Company within 30 days after the date of this
Agreement. You shall give any such notice on behalf of the Underwriters and
such notice shall specify the aggregate dollar amount of Additional Securities
to be purchased pursuant to such exercise and the date for payment and delivery
thereof, which date shall be a business day (i) no earlier than two business
days after such notice has been given (and, in any event, no earlier than the
Closing Date (as hereinafter defined)) and (ii) no later than ten business days
after such notice has been given. If any Additional Securities are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase from
the Company the number of Additional Securities (subject to such adjustments to
eliminate denominations of less than $1,000 and integral multiples thereof as
you may determine) which bears the same proportion to the total number of
Additional Securities to be purchased from the Company as the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule I bears
to the total number of Firm Securities.
The Company hereby agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for its Common
Stock, par value $0.16 2/3 per share (the "Common Stock"), or (ii) enter into
any swap or other arrangement that transfers all or a portion of the economic
consequences associated with the ownership of any Common Stock (regardless of
whether any of the transactions described in clause (i) or (ii) is to be
settled by the delivery of Common Stock, or such other securities, in cash or
otherwise), except to the Underwriters pursuant to this Agreement, for a period
of 90 days after the date of the Prospectus without the prior written consent
of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation. Notwithstanding the
foregoing, during such period (i) the Company may grant stock options pursuant
to the Company's existing stock option plan and (ii) the Company may issue
shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof. The Company also
agrees not to file any
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registration statement with respect to any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock for
a period of 90 days after the date of the Prospectus without the prior written
consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and Xxxxxxxxx &
Company, Inc. The Company shall, prior to or concurrently with the execution
of this Agreement, deliver an agreement executed by (i) each of the directors
and officers of the Company to the effect that such person will not, during the
period commencing on the date such person signs such agreement and ending 90
days after the date of the Prospectus, without the prior written consent of
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Corporation and Xxxxxxxxx & Company, Inc., of the
transactions described in the first sentence of this paragraph or (ii) make any
demand for, or exercise any right with respect to, the registration of any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock.
SECTION 3. Terms of Public Offering. The Company is advised by
you that the Underwriters propose (i) to make a public offering of their
respective portions of the Securities as soon after the execution and delivery
of this Agreement as in your judgment is advisable and (ii) initially to offer
the Securities upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Securities to be purchased
by the Underwriters hereunder shall be represented by one or more definitive
global securities in book-entry form which will be deposited by or on behalf of
the Company with The Depository Trust Company ("DTC") or its designated
custodian. The Company will deliver the Securities to Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the Purchase Price therefor by
same day funds, by causing DTC to credit the Securities to the account of
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation at DTC. The time and date
of such delivery and payment shall be, with respect to the Firm Securities,
9:00 a.m., Eastern Time, on July __, 1997, or such other time and date as the
Underwriters and the Company may agree upon in writing and, with respect to the
Additional Securities, 9:00 a.m., Eastern Time, on the date specified by the
Underwriters in the written notice given by them of their election to purchase
such Additional Securities, or such other time and date as the Underwriters and
the Company may agree in writing. Such time and date for delivery of the Firm
Securities is herein called the "FIRST CLOSING DATE", such time and date for
delivery of the Additional Securities, if not the First Closing Date, is herein
called the "SECOND CLOSING DATE", and each such time and date for delivery is
herein called a "CLOSING DATE".
SECTION 5. Agreements of the Company. The Company agrees with
you:
(a) To advise you promptly and, if requested by you, to confirm
such advice in writing, (i) of any request by the Commission for amendments to
the Registration Statement or amendments or supplements to the Prospectus or
for additional information, (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes, (iii) when
any amendment to the Registration Statement becomes effective, (iv) if the
Company is required to file a Rule 462(b) Registration Statement after the
effectiveness of this Agreement, when the Rule 462(b) Registration Statement
has become effective and (v) of the happening of any event during the period
referred to in Section 5(d) below which makes any statement of a material fact
made in the Registration Statement or the Prospectus untrue or which requires
any additions to or changes in the Registration Statement or the Prospectus in
order to make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
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(b) To furnish to you five signed copies of the Registration
Statement as first filed with the Commission and of each amendment to it,
including all exhibits and documents incorporated by reference, and to furnish
to you and each Underwriter designated by you such number of conformed copies
of the Registration Statement as so filed and of each amendment to it, without
exhibits and documents incorporated therein by reference, as you may reasonably
request.
(c) To prepare the Prospectus in a form approved by you and to
file the Prospectus in such form with the Commission within the applicable
period specified in Rule 424(b) under the Act; not to file any further
amendment to the Registration Statement and not to make any amendment or
supplement to the Prospectus of which you shall not previously have been
advised or to which you shall reasonably object after being so advised; and to
prepare and file with the Commission, promptly upon your reasonable request,
any amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Securities by you, and to use its best efforts to cause any
such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business
day after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
and any documents incorporated therein by reference as such Underwriter or
dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event
shall occur or condition shall exist as a result of which, in the reasonable
opinion of counsel for the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the reasonable opinion of counsel for the Underwriters,
it is necessary to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare and file with the Commission an appropriate amendment
or supplement to the Prospectus so that the statements in 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
applicable law, and to furnish to each Underwriter and to any dealer as many
copies thereof as such Underwriter or dealer may reasonably request.
(f) Prior to any public offering of the Securities, to cooperate
with you and counsel for the Underwriters in connection with the registration
or qualification of the Securities for offer and sale by the several
Underwriters and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such qualification in effect so
long as required for distribution of the Securities and to file such consents
to service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to register or qualify as a foreign
corporation in any jurisdiction in which it is not now so qualified or to take
any action that would subject it to general consent to service of process or
taxation other than as to matters and transactions relating to the Prospectus,
the Registration Statement, any preliminary prospectus or the offering or sale
of the Securities, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its security holders
as soon as practicable an earnings statement covering the twelve-month period
ending August 31, 1998 that shall satisfy the provisions of Section 11(a) of
the Act, and to advise you in writing when such statement has been so made
available.
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(h) So long as the Securities are outstanding, (i) to mail and
make generally available as soon as practicable after the end of each fiscal
year to the record holders of the Securities a financial report of the Company,
all such financial reports to include a consolidated balance sheet, a
consolidated statement of operations, a consolidated statement of cash flows
and a consolidated statement of shareholders' equity as of the end of and for
such fiscal year, together with comparable information as of the end of and for
the preceding year, certified by independent public accountants and (ii) to
mail and make generally available as soon as practicable after the end of each
quarterly period (except for the last quarterly period of each fiscal year) to
such holders, a consolidated balance sheet, a consolidated statement of
operations and a consolidated statement of cash flows as of the end of and for
such period, and for the period from the beginning of such year to the close of
such quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(i) So long as the Securities are outstanding, to furnish to you
as soon as available copies of all reports filed with the Commission or any
national securities exchange on which any class of securities of the Company is
listed.
(j) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel
and the Company's accountants in connection with the registration and delivery
of the Securities under the Act and all other fees or expenses in connection
with the preparation, printing, filing and distribution of the Registration
Statement (including financial statements and exhibits), any preliminary
prospectus, the Prospectus and all amendments and supplements to any of the
foregoing prior to or during the period specified in Section 5(d), including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) all costs of printing or
producing this Agreement and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Securities, (iv) all
expenses in connection with the registration or qualification of the Securities
for offer and sale under the securities or Blue Sky laws of the several states
and all costs of printing or producing any Preliminary and Supplemental Blue
Sky Memoranda in connection therewith (including the filing fees and fees and
disbursements of counsel for the Underwriters in connection with such
registration or qualification and memoranda relating thereto), (v) the filing
fees and disbursements of counsel for the Underwriters in connection with the
review and clearance of the offering of the Securities by the National
Association of Securities Dealers, Inc., (vi) all fees and expenses in
connection with the preparation and filing of the registration statement on
Form 8-A relating to the Securities and all costs and expenses incident to the
listing of the Securities on the New York Stock Exchange ("NYSE"), (vii) the
cost of printing certificates representing the Securities, (viii) the costs and
charges of any transfer agent, registrar and/or depositary (including the
Depository Trust Company), (ix) any fees charged by rating agencies for the
rating of the Securities, (x) the fees and expenses of the Trustee and the
Trustee's counsel in connection with the Indenture and the Securities and (xi)
and all other costs and expenses incident to the performance of the obligations
of the Company hereunder for which provision is not otherwise made in this
Section.
(k) To use its best efforts to list, subject to notice of
issuance, the Securities on the NYSE and to maintain the listing of the
Securities on the NYSE for so long as the Securities are outstanding.
(l) During the period beginning on the date hereof and continuing
to and including the Closing Date, not to offer, sell, contract to sell or
otherwise transfer or dispose of any debt securities of the Company or any
warrants, rights or options to purchase or otherwise acquire debt securities
of the Company substantially similar to the Securities (other than (i) the
Securities, (ii) commercial paper issued
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in the ordinary course of business) and (iii) borrowings under the Company's
existing revolving credit facility, without the prior written consent of
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation.
(m) To use its best efforts to do and perform all things required
or necessary to be done and performed under this Agreement by the Company prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Securities.
(n) If the Registration Statement at the time of the effectiveness
of this Agreement does not cover all of the Securities, to file a Rule 462(b)
Registration Statement with the Commission registering the Securities not so
covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on
the date of this Agreement and to pay to the Commission the filing fee for such
Rule 462(b) Registration Statement at the time of the filing thereof or to give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
SECTION 6. Representations and Warranties of the Company. The
Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than
any Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement); any Rule 462(b) Registration Statement filed
after the effectiveness of this Agreement will be filed and become effective no
later than 10:00 P.M., New York City time, on the date of this Agreement; and
no stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act; (ii)
the Registration Statement (other than any Rule 462(b) Registration Statement
to be filed by the Company after the effectiveness of this Agreement), when it
became effective, did not contain and, as amended, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement) and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Act, (iv) if the
Company is required to file a Rule 462(b) Registration Statement after the
effectiveness of this Agreement, such Rule 462(b) Registration Statement and
any amendments thereto, when they become effective (A) will not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (B) will comply in all material respects with the Act and (v) the
Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions
in any preliminary
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prospectus based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use therein.
(d) Each of the Company and its significant subsidiaries (as
defined in the Act and listed in Schedule II hereto) has been duly
incorporated, organized or formed, as the case may be, is validly existing as a
corporation, limited liability company or limited liability partnership, as the
case may be, in good standing under the laws of its jurisdiction of
incorporation, organization or formation, as the case may be, and has the
corporate power and authority to carry on its business as described in the
Prospectus and to own, lease and operate its properties, and each is duly
qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole ("MATERIAL ADVERSE EFFECT").
(e) All the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights.
(f) All of the outstanding shares of capital stock of and all of
the interests in each of the Company's subsidiaries have been duly authorized
and validly issued and are fully paid and non-assessable, and are owned by the
Company, directly or indirectly through one or more subsidiaries, free and
clear of any security interest, claim, lien, encumbrance or adverse interest of
any nature (each, a "LIEN").
(g) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), and has been
duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws
of general application relating to or affecting the rights of creditors and (ii)
the effect of general principles of equity, whether enforcement is considered
in a proceeding in equity or at law.
(h) The Securities have been duly authorized and, on the Closing
Date, will have been validly executed and delivered by the Company. When the
Securities have been executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, the Securities will be entitled
to the benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws of general
application relating to or affecting the rights of creditors and (B) the effect
of general principles of equity, whether enforcement is considered in a
proceeding in equity or at law.
(i) The Securities conform as to legal matters to the description
thereof contained in the Prospectus.
(j) The Company has entered into a stock purchase agreement
pursuant to which the Company will acquire, directly or indirectly, all of the
outstanding capital stock of Hercules Offshore Corporation and a stock purchase
agreement pursuant to which it will acquire, directly or indirectly, all of the
outstanding capital stock of Hercules Rig Corp. (collectively, the "Acquisition
Agreements"). Each of the Acquisition Agreements is in full force and effect,
has been duly and validly authorized, executed and delivered by the parties
thereto and is valid and binding on the parties thereto in accordance with its
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terms and, none of the parties thereto is in default in any respect thereunder.
A complete and correct copy of each Acquisition Agreement, including all
exhibits, schedules and amendments thereto, has been delivered to you.
(k) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the performance
of any obligation, agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound, the violation or
default of which would have a Material Adverse Effect.
(l) The execution and delivery of this Agreement and the Indenture
and the issuance and delivery of the Securities by the Company, and the
consummation of the transactions contemplated hereby and thereby will not
require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as
have been obtained under the Act or received from the Company's lenders and
such as may be required under the securities or Blue Sky laws of the various
states or the notice of issuance requirements of the NYSE) and will not (A)(i)
conflict with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws or other organizational documents of the
Company or any of its subsidiaries or (ii) any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective property is bound, (B) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any court
or any governmental body or agency having jurisdiction over the Company, any of
its subsidiaries or their respective property, (C) result in the imposition or
creation of (or the obligation to create or impose) a Lien under any agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective property is
bound or (D) result in the termination or revocation of any Authorization (as
defined below) of the Company or any of its subsidiaries or any other
impairment of the rights of the holder of any such Authorization (in the case
of (A)(ii), (B), (C) or (D), where such conflict, breach, default, violation,
conflict, imposition, creation, termination or revocation would have a Material
Adverse Effect).
(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is or could be a
party or to which any of their respective property is or could be subject that
are required to be described in the Registration Statement or the Prospectus
and are not so described; nor are there any contracts or other documents that
are required to be described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement that are not so described
or filed as required.
(n) Neither the Company nor any of its subsidiaries has violated
any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS") or any
provisions of the Employee Retirement Income Security Act of 1974, as amended,
or the rules and regulations promulgated thereunder, except for such violations
which, singly or in the aggregate, would not have a Material Adverse Effect.
(o) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to,
all governmental or regulatory authorities and self-regulatory organizations
and all courts and other tribunals, including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease, license and
operate its respective properties and to conduct its business, except where the
failure to have any such Authorization or to make any such filing or notice
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would not, singly or in the aggregate, have a Material Adverse Effect. Each
such Authorization is valid and in full force and effect and each of the
Company and its subsidiaries is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; except where
such failure to be valid and in full force and effect or to be in compliance,
the occurrence of any such event or the presence of any such restriction would
not, singly or in the aggregate, have a Material Adverse Effect.
(p) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
(q) This Agreement has been duly authorized, executed and
delivered by the Company.
(r) Coopers & Xxxxxxx L.L.P., Xxxxxx Xxxxxxxx LLP, and KPMG Peat
Marwick LLP are independent public accountants with respect to the Company and
its subsidiaries as required by the Act.
(s) The consolidated financial statements, together with related
schedules and notes forming part of or incorporated by reference in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), present fairly the consolidated financial position, results of
operations and cash flows of the Company and its subsidiaries on the basis
stated in the Registration Statement at the respective dates or for the
respective periods to which they apply; such statements and related schedules
and notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and data
set forth in the Registration Statement and the Prospectus (and any amendment
or supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company. The selected financial information included in the
Registration Statement and the Prospectus presents fairly the information shown
therein and has been compiled on a basis consistent with that of the audited
financial statements of the Company included therein. The pro forma financial
information in the Registration Statement and the Prospectus complies in all
material respects with the applicable accounting requirements of Article 11 of
Regulation S-X promulgated by the Commission and presents fairly in all
material respects the information shown therein; 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. No other financial statements or schedules of the Company and its
subsidiaries are required by the Exchange Act or the Act to be included or
incorporated by reference in the Registration Statement or Prospectus.
(t) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be, an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended.
(u) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to include such securities with the Securities registered pursuant to
the Registration Statement.
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(v) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act (i) has
imposed (or has informed the Company or any Guarantor that it is considering
imposing) any condition (financial or otherwise) on the Company's or any
Guarantor's retaining any rating assigned to the Company, any Guarantor or any
securities of the Company or any Guarantor or (ii) has indicated to the Company
or any Guarantor that it is considering (A) the downgrading, suspension or
withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (B) any change
in the outlook for any rating of the Company or any Guarantor or any securities
of the Company or any Guarantor.
(w) Since the respective dates as of which information is given in
the Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
(i) there has not occurred any material adverse change or any development
involving a prospective material adverse change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its subsidiaries, taken as a whole, (ii) there has not been any material
adverse change or any development involving a prospective material adverse
change in the capital stock or in the long-term debt of the Company or any of
its subsidiaries and (iii) neither the Company nor any of its subsidiaries has
incurred any material liability or obligation, direct or contingent for
borrowed money.
SECTION 7. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter, its directors, its officers and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and judgments (including, without
limitation, any legal or other expenses incurred in connection with
investigating or defending any matter, including any action, that could give
rise to any such losses, claims, damages, liabilities or judgments) caused by
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), the Prospectus (or
any amendment or supplement thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Underwriter
furnished in writing to the Company by such Underwriter through you expressly
for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to such
Underwriter but only with reference to information relating to such Underwriter
furnished in writing to the Company by such Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 7(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the
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expense of such Underwriter). Any indemnified party shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified
parties and all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation and Xxxxxxxxx & Company, Inc., in the case of
parties indemnified pursuant to Section 7(a), and by the Company, in the case
of parties indemnified pursuant to Section 7(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action effected with its written consent. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of a judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could
have been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent the indemnification provided for in this Section
7 is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause 7(d)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 7(d)(i) above
but also the relative fault of the Company on the one hand and the Underwriters
on the other hand in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand 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 total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Securities, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company on the one
hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
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The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
indemnified party in connection with investigating or defending any matter,
including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective principal amount of Securities purchased by each
of the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
SECTION 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Securities under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on each Closing Date with
the same force and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have been filed and become effective by 10:00
P.M., New York City time, on the date of this Agreement; and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been commenced or shall
be pending before or contemplated by the Commission.
(c) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal of, or
of any review (or of any potential or intended review) for a possible change
that does not indicate the direction of the possible change in, any rating of
the Company or any Guarantor or any securities of the Company or any Guarantor
(including, without limitation, the placing of any of the foregoing ratings on
credit watch with negative or developing implications or under review with an
uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act, (ii) there shall not have occurred any change, nor shall any notice have
been given of any potential or intended change, in the outlook for any rating
of the Company or any Guarantor or any securities of the Company or any
Guarantor by any such rating organization and (iii) no such rating organization
shall have given notice that it has assigned (or is considering assigning) a
lower rating to the Securities than that on which the Securities were marketed.
(d) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by Xxxxxx X. Xxxxxx, Xx. and Xxxxx X. Xxxxx, in
their capacities as the President and Chief Executive
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Officer and Senior Vice President-Finance and Chief Financial Officer of the
Company, respectively, confirming the matters set forth in Sections 8(a), 8(b),
8(c) and 8(e).
(e) Since the respective dates as of which information is given in
the Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
(i) there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken
as a whole, (ii) there shall not have been any change or any development
involving a prospective change in the capital stock or in the long-term debt of
the Company or any of its subsidiaries and (iii) neither the Company nor any of
its subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 8(e)(i),
8(e)(ii) or 8(e)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Xxxxxx & Xxxxxx L.L.P., counsel for the Company, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Prospectus and
to own, lease and operate its properties;
(ii) the Securities have been duly authorized and, when
issued, authenticated and delivered in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms except as (A)
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws of
general application relating to or affecting the rights of creditors
and (B) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law;
(iii) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws of
general application relating to or affecting the rights of creditors
and (B) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Registration Statement has become effective under
the Act and, to our knowledge, no stop order suspending its
effectiveness has been issued and no proceedings for that purpose are
pending before or threatened by the Commission;
(vi) the statements under the captions "Description of the
Notes", "Description of Capital Stock" and "Certain Federal Income Tax
Consequences" in the Prospectus and the
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Registration Statement, insofar as such statements constitute a
summary of legal matters or contracts, agreements, or other legal
documents referred to therein, are accurate in all material respects;
(vii) the execution and delivery of this Agreement and the
Indenture and the issuance and delivery of the Securities by the
Company and the consummation of the transactions contemplated hereby
and thereby will not require any consent, approval, authorization or
other order of, or qualification with, any court or governmental body
or agency (except such as have been obtained under the Act or from the
Company's lenders and such as may be required under the securities or
Blue Sky laws of the various states or the notice of issuance
requirements of the NYSE) and will not conflict with or constitute a
breach under the terms or provisions of, or a default under, (A) the
charter or by-laws of the Company or (B) any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
(i) filed as an exhibit to the Registration Statement, (ii) filed as
an exhibit to a report that is filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus or (iii) identified to
such counsel by the Company as material to the Company and its
subsidiaries, taken as a whole, or (C) to the knowledge of such
counsel, violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company or any of its
subsidiaries (except in the case of clause (C) such conflict or
violation that would not have a Material Adverse Effect and except for
federal or state securities or blue sky laws as to which such counsel
does not express an opinion in this subparagraph (vii));
(viii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be, an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended; and
(ix) The Registration Statement and the Prospectus (except
the financial statements, supporting schedules and other information
of a financial or statistical nature included therein, as to which
such counsel does not express any opinion) 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 has necessarily assumed the correctness and completeness of
the statements made therein. Such counsel is not passing upon and
does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus (except to the extent set forth in subparagraph
8.(f)(vi) hereof), and such counsel has not independently verified the
accuracy, completeness or fairness of such statements (except as
aforesaid). Without limiting the foregoing, such counsel assumes no
responsibility for and has not independently verified the accuracy,
completeness or fairness of the financial statements and schedules and
other financial and statistical data included in the Registration
Statement and has not examined the accounting, financial or
statistical records from which such financial statements, schedules
and data are derived. Such counsel notes that, although certain
portions of the Registration Statement have been included therein on
the authority of experts within the meaning of the Act, such counsel
is not an expert with respect to any portion of the Registration
Statement. However, such counsel has participated in conferences with
officers and other representatives of the Company, representatives of
the independent accountants of the Company, and with the Underwriters'
representatives and counsel, at which the contents of the Registration
Statement and Prospectus and related matters were discussed. Such
counsel has also reviewed certain corporate documents furnished to
them by the Company. Based on such participation and review (relying
as to materiality to a certain extent upon the officers and the other
representatives of the Company), and subject to the limitations
described
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above, no information has come to such counsel's attention that causes
them to believe that the Registration Statement, at the time it became
effective or as of the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of its date or as
of the Closing Date, 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 were made, not misleading.
The opinion of Xxxxxx & Xxxxxx L.L.P. described in Section 8(f) above
shall be rendered to you at the request of the Company and shall so state
therein.
(g) You shall have received on the Closing Date an opinion or
opinions (satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Xxxxxx X. Xxxxxx, Esq., counsel for the Company, to the effect
that:
(i) each of the Company's significant subsidiaries has
been duly incorporated, organized or formed, as the case may be, is
validly existing as a corporation, limited liability company or
limited liability partnership, as the case may be, in good standing
under the laws of its jurisdiction of incorporation, organization or
formation, as the case may be, and has the corporate power and
authority to carry on its business as described in the Prospectus and
to own, lease and operate its properties;
(ii) each of the Company and each significant subsidiary
is duly qualified and is in good standing as a foreign corporation,
foreign limited liability company or foreign limited liability
partnership, as the case may be, authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect;
(iii) all the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or similar
rights;
(iv) all of the outstanding shares of capital stock of
each of the Company's corporate subsidiaries and all of the interests
in its limited liability company and limited liability partnership
subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly
or indirectly through one or more subsidiaries, free and clear of any
Lien;
(v) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is or could be a party or to which
any of their respective property is or could be subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described, or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement that are not so described or filed as
required;
(vi) to such counsel's knowledge after due inquiry, there
are no contracts, agreements or understandings between the Company and
any person granting such person the right to require the Company to
include such securities with the Securities registered pursuant to the
Registration Statement; and
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(vii) Such counsel is not passing upon and does not assume
any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
and such counsel has not independently verified the accuracy,
completeness or fairness of such statements (except as aforesaid).
Without limiting the foregoing, such counsel assumes no responsibility
for and has not independently verified the accuracy, completeness or
fairness of the financial statements and schedules and other financial
and statistical data included in the Registration Statement and has
not examined the accounting, financial or statistical records from
which such financial statements, schedules and data are derived. Such
counsel notes that, although certain portions of the Registration
Statement have been included therein on the authority of experts
within the meaning of the Act, such counsel is not an expert with
respect to any portion of the Registration Statement. However, such
counsel has participated in conferences with officers and other
representatives of the Company, representatives of the independent
accountants of the Company, and with the Underwriters' representatives
and counsel, at which the contents of the Registration Statement and
Prospectus and related matters were discussed. Such counsel has also
reviewed certain corporate documents. Based on such participation and
review (relying as to materiality to a certain extent upon the
officers and the other representatives of the Company), and subject to
the limitations described above, no information has come to such
counsel's attention that causes them to believe that the Registration
Statement, at the time it became effective or as of the Closing Date,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
that the Prospectus, as of its date or as of the Closing Date,
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
were made, not misleading.
(h) You shall have received on the Closing Date an opinion, date
the Closing Date, of counsel for the Company in such jurisdictions in which the
Company's significant subsidiaries have been incorporated, other than Oklahoma
and Delaware as to the matters referred to in Sections 8.(g)(i), 8.(g)(ii) and
8.(g)(iv).
(i) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Fulbright & Xxxxxxxx L.L.P., counsel for the Underwriters,
as to the matters referred to in Sections 8.(f)(ii), 8.(f)(iii), 8.(f)(vi)
(only with respect to the statements under the captions "Description of
Securities" and "Underwriting" and 8.(f)(ix).
(j) You shall have received, on each of the date hereof and the
Closing Date, letters dated the date hereof or the Closing Date, as the case
may be, in form and substance satisfactory to you, from Coopers & Xxxxxxx
L.L.P., KPMG Peat Marwick LLP, Xxxxxx Xxxxxxxx LLP and Price Waterhouse LLP,
independent public accountants, containing the information and statements of
the type ordinarily included in accountants' "comfort letters" to Underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference into the Registration Statement and
the Prospectus.
(k) The Securities shall have been duly listed, subject to notice
of issuance, on the NYSE.
(l) The Securities shall have been rated "B+" by Standard & Poor's
Corporation and "B1" by Xxxxx'x Investors Service, Inc.
(m) The Underwriters shall have received a counterpart, conformed
as executed, of the Indenture which shall have been entered into by the Company
and the Trustee.
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(n) The Company shall not have failed at or prior to the Closing
Date to perform or comply with any of the agreements herein contained and
required to be performed or complied with by the Company at or prior to the
Closing Date.
SECTION 9. Effectiveness of Agreement and Termination. This
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company if any of the following has occurred:
(i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market
the Securities on the terms and in the manner contemplated in the Prospectus,
(ii) the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago
Board of Trade or the Nasdaq National Market or limitation on prices for
securities or other instruments on any such exchange or the Nasdaq National
Market, (iii) the suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole,the declaration of a banking
moratorium by either federal or New York State authorities, or (v) the taking
of any action by any federal, state or local government or agency in respect of
its monetary or fiscal affairs which in your opinion has a material adverse
effect on the financial markets in the United States.
If on the First Closing Date or the Second Closing Date, as the case
may be, any one or more of the Underwriters shall fail or refuse to purchase
the Securities which it or they have agreed to purchase hereunder on such date
and the aggregate principal amount of Firm Securities or Additional Securities,
as the case may be, which such defaulting Underwriter or Underwriters, as the
case may be, agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of Firm Securities or Additional
Securities, as the case may be, to be purchased on such date by all
Underwriters, each non-defaulting Underwriter shall be obligated severally, in
the proportion which the principal amount of Firm Securities set forth opposite
its name in Schedule I bears to the aggregate principal amount of Firm
Securities which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Securities or Additional Securities, as the case may be, which such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed
or refused to purchase on such date; provided that in no event shall the
aggregate principal amount of Firm Securities or Additional Securities, as the
case may be, which any Underwriter has agreed to purchase pursuant to Section 2
hereof be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such principal amount of Firm Securities or Additional Securities,
as the case may be, without the written consent of such Underwriter. If on the
First Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Firm Securities and the aggregate principal amount of Firm Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Firm Securities to be purchased by all
Underwriters and arrangements satisfactory to you and the Company for purchase
of such Firm Securities are not made within 48 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter and the Company. In any such case which does not result in
termination of this Agreement, either you or the Company shall have the right
to postpone the First Closing Date, but in no event for longer than seven days,
in order that changes, if any, in the Registration Statement and the Prospectus
or any other documents or arrangements may be effected. If, on any Second
Closing Date, any Underwriter or
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Underwriters shall fail or refuse to purchase Additional Securities and the
aggregate number of Additional Securities with respect to which such default
occurs is more than one-tenth of the aggregate number of Additional Securities
to be purchased on such date, the non-defaulting Underwriters shall have the
option to (i) terminate their obligation hereunder to purchase such Additional
Securities or (ii) purchase less than the number of Additional Securities that
such non-defaulting Underwriters would have been obligated to purchase on such
date in the absence of such default. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of any such Underwriter under this Agreement.
SECTION 10. Miscellaneous. Notices given pursuant to any provision
of this Agreement shall be addressed as follows: (i) if to the Company, to
Xxxxxx Drilling Company, 0 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention:
President and (ii) if to any Underwriter or to you, to you c/x Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Syndicate Department and Xxxxxxxxx & Company, Inc., 000
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Managing Director,
or in any case to such other address as the person to be notified may have
requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Securities,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the officers
or directors of the Company or any person controlling the Company, (ii)
acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Securities are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 9), the Company agrees to reimburse the
several Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has
agreed to pay pursuant to Section 5(j) hereof. The Company also agrees to
reimburse the several Underwriters, their directors and officers and any
persons controlling any of the Underwriters for any and all fees and expenses
(including, without limitation, the fees disbursements of counsel) incurred by
them in connection with enforcing their rights hereunder (including, without
limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the Company's directors and the Company's officers who sign
the Registration Statement and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors
and assigns" shall not include a purchaser of any of the Securities from any of
the several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
XXXXXX DRILLING COMPANY
By:
-----------------------------------
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXXXX & COMPANY, INC.
BEAR, XXXXXXX & CO., INC.
PRUDENTIAL SECURITIES INCORPORATED
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By
------------------------------
and By XXXXXXXXX & COMPANY, INC.
By
------------------------------
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SCHEDULE I
Principal Amount
of Securities
Underwriters to be Purchased
------------ ----------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation $
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co., Inc.
Prudential Securities Incorporated
Total $ 155,000,000
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