EX-10.6
3
exh106.htm
EXHIBIT 10.6 -
PLACEMENT AGENT AGREEMENT
Exhibit
10.6
July
25,
2006
Board
of
Directors
Carrizo
Oil & Gas, Inc.
0000
Xxxxxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attention: Xx.
Xxxx
X. Xxxxxx
Chief
Financial Officer
| |
Re:
|
Engagement
of Xxxxxxx Rice & Company L.L.C. as Managing Placement
Agent
of up to 1,350,000 shares of Common
Stock
|
Dear
Sir:
1. Engagement
of Placement Agent.
Carrizo
Oil & Gas, Inc., a
Texas corporation (the “Company”), proposes to make a
private placement (the “Offering”) of up to 1,350,000 shares of the Company’s
common stock (“Common Stock”), par value $0.01 per share (individually, a
“Security”, and collectively, the “Securities”), pursuant to the exemptions (the
“Exemptions”) from registration provided in the Securities Act of 1933, as
amended (the “Securities Act”). By entering into this
Placement Agent Agreement
(this “Agreement”), the Company engages Xxxxxxx Xxxx & Company L.L.C.
(the “Agent”) as its managing “Placement Agent,” and as a representative of such
other participating broker/dealers as from time to time are mutually agreed
upon
by the parties hereto and listed on Exhibit
C
attached
hereto (collectively, the “Placement Agents”), as from time to time updated, and
provided that each such other broker/dealers enter into an agreement with the
Agent in the form attached hereto as Exhibit
E
(the
“Agreement Among Placement Agents”) agreeing upon the allocation to the
Placement Agents, cross-indemnities and such other agreements typically found
in
agreements among multiple placement agents, in connection with the Offering
through July 27, 2006, at which time this Agreement may terminate in accordance
with Section 11 hereof. By entering into this Agreement, the Agent acting on
behalf of itself and the other Placement Agents, severally, accepts such
engagement and agrees, as more fully described in Section 4(a) hereof, to use
its reasonable best efforts to place up to 1,350,000 shares of Securities solely
with (i) institutions
that are “accredited investors” within the meaning of Rule 501(a)(1), (2), (3),
(7) or (8) of Regulation D under the Securities Act that (A) are current
security holders of the Company or have been security holders of the Company
within the 12 months prior to the date the Agent or the Company first contacted
such prospective investor regarding the Offering (but not, in either case,
someone who only became a securityholder within 30 days of such date) and (B)
have
a
prior substantive relationship with either the Company or the Agent prior to
the
date the Agent
or the
Company first contacted such investor regarding the Offering;
and
(ii) “qualified institutional buyers” within the meaning of Rule 144A under the
Securities Act that (A) did not attend, participate in, listen to or view (in
each case, whether in person or via webcast, whether live or via replay or
other
delayed transmission or otherwise) any investment conferences at which the
Company
made presentations (including the viewing or listening to the Company’s
presentation for such conference) within the 30 days prior to the date on which
such prospective investor was first contacted by the Company or the Agent in
connection with the proposed purchase of Shares in the Offering and (B) have
a
prior substantive relationship with either the Company or the Agent prior to
the
date the Agent
or the
Company first contacted such prospective investor regarding the Offering or
any
such conference or presentation; in each case including those institutions
listed on Exhibit
D
hereto
and any other such institutions approved by the Company (the persons described
in this sentence being referred to herein as the “Qualified
Investors”).
The
offering price shall be such price as is mutually agreeable to the Company
and
the Agent. The Company shall prepare a private placement memorandum, a
subscription and registration rights agreement (the “Subscription Agreement”)
and, if required, any other documents which may be necessary to comply with
the
Exemptions, each of which shall be subject to the Agent’s reasonable approval
(the “Offering Documents”). The Agent hereby acknowledges and agrees that the
Company, in the Company’s sole discretion, may (1) reject any subscription for
Securities presented to the Company by the Agent, (2) withdraw the offering
of
the Securities at any time, and (3) allot to any prospective investor less
than
the full amount of Securities sought by it. The Company agrees to enter into
a
Subscription Agreement with each of the purchasers of the Securities
(individually, an “Investor”, and collectively, the “Investors”) substantially
on the following terms: (1) the Company will use its commercially reasonable
efforts to file with the Securities and Exchange Commission (the “SEC”), within
thirty (30) days following the closing of the Offering, a registration statement
covering the resale of the Securities, and will use its commercially reasonable
best efforts to have such registration statement become effective with the
SEC
as soon as practicable thereafter (with such initial and subsequent 30-day
periods being extended by such additional number of days as are attributable
to
any delay caused by any act or failure to act by any of the Investors or their
counsel); (2) if the Company fails to file such registration statement within
thirty (30) days following the closing of the Offering, it will be required
to
pay liquidated damages to each Investor in the Offering equal to two percent
(2%) of such Investor’s purchase price for Securities, and an additional two
percent (2%) of such Investor’s purchase price for Securities for each
additional 30-day period during which such registration statement is not filed
(with such initial and subsequent 30-day periods being extended by such
additional number of days as are attributable to any delay caused by any act
or
failure to act by any of the Investors or their counsel); and (3) if such
registration statement has not been declared effective under the Securities
Act
by the SEC within 120 days following the filing date of such registration
statement, it will be required to pay liquidated damages to each Investor in
the
Offering equal to two percent (2%) of such Investor’s purchase price for
Securities, and an additional two percent (2%) of such Investor’s purchase price
for Securities for each additional 30-day period during which such registration
statement is not declared effective by the SEC (with such 120-day period or
30-day periods being extended by such additional number of days as are
attributable to any delay caused by any act or failure to act by any of the
Investors or their counsel).
The
persons listed on Exhibit
A
attached
hereto shall have entered into lock-up agreements substantially in the form
attached hereto as Exhibit
B,
and
shall have delivered the same to the Agent, on or prior to the closing of the
Offering.
Initial
Here (Company)
_________________
2. Fees.
(a) In
consideration of the Agent’s performance of the services described in Section 1
hereof, the Company agrees to pay to the Placement Agents a fee equal to four
percent (4.0%) of
the
gross proceeds of the Offering sold by the Placement Agents (“Commissions”), of
which amount no less than thirty percent (30%) will be payable to the Agent
and
not more than seventy percent (70%) will be payable to the other Placement
Agents as a group, if any, listed on Exhibit
C
attached
hereto in accordance with the percentages set out in Exhibit
C.
The
Company shall pay to the Placement Agents all Commissions in full upon the
closing of the Offering.
(b) Regardless
of whether or not the Offering is completed or this Agreement is terminated,
the
Company shall pay all of its expenses in connection with the Offering and shall
pay the Agent all reasonable out-of-pocket expenses incurred by the Agent under
this Agreement within five (5) business days after being demanded by the Agent
in writing with supporting documentation; provided, however, that under no
circumstances shall the Company be obligated to pay the Agent an amount in
excess of $35,000 (including attorneys’ fees) under this subsection. In the
event that the Offering is consummated, then an estimate of expenses shall
be
paid to the Agent at the closing with the remainder to be remitted upon demand
as set forth above.
3. Representations
and Warranties of the Company.
The
Company represents and warrants to and agrees with the Agent that:
(a) The
Offering Documents, and any amendments or supplements thereto (including the
documents that are incorporated therein by reference), will conform in all
material respects to any applicable requirements of the Securities Act and
the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any
applicable state securities laws, and the Offering Documents, and any amendments
or supplements thereto (including the documents that are incorporated therein
by
reference), will not include any untrue statement of a material fact or omit
to
state any material fact required to be stated therein or necessary to make
the
statements therein in light of the circumstances under which they were made
not
misleading, except that this representation and warranty will not apply to
statements or omissions made in reliance upon and in conformity with information
furnished by the Agent in writing to the Company in connection with the Offering
Documents, or any amendment or supplement thereto.
(b) The
Company’s counsel will review the applicable registration requirements of the
Securities Act and all applicable state securities laws and if the Offering
is
consummated reach a conclusion that the Exemptions are available to the Company
in this Offering and that the Company complies with the Exemptions. The Company
complies with the Exemptions.
(c) All
potential investors will be given reasonable access to material information
regarding the Company and reasonable opportunity to ask questions of the
Company’s executive officers. Notwithstanding the foregoing, the Company shall
not be required to disclose to the Agent or any potential investors any material
nonpublic information or information regarding the Company’s trade secrets or
other proprietary information.
Initial
Here (Company)
_________________
(d) The
Company makes, with respect to itself and this Agreement, all of the
representations made by it in Section 6 of the Subscription Agreement with
respect to itself and that agreement.
4. Representations
and Warranties of Placement Agents.
The
Agent does, and each other Placement Agent will upon its execution and delivery
of the Agreement Among Placement Agents, represent and warrant to and agree
with
the Company, severally (and not jointly or jointly and severally),
that:
(a) Such
Placement Agent is familiar or will make itself familiar with all applicable
federal and state securities laws and the regulations thereunder which restrict
the public sale and distribution of securities without a registration statement,
qualification or exemption being in effect with respect thereto. In exercising
its duties under this Agreement, such Placement Agent will not cause the Company
to be engaged in a public offering, or otherwise take any action or omit to
take
any action such that the Offering fails to be entitled to the
Exemptions.
Such
Placement Agent will offer Securities only to those offerees who such Placement
Agent reasonably believes are Qualified Investors or are otherwise approved
in
advance in writing by the Company and will provide certification as to the
foregoing upon request by the Company, all in the manner described in the
Subscription Agreement. Such Placement Agent will not disclose any material
nonpublic information regarding the Company to any offeree, including without
limitation, the fact that the Company is considering the private placement
of
the Securities, without first obtaining an agreement, oral or written, from
such
offeree that such information is to be kept confidential and used only in
connection with the Offering.
Such
Placement Agent shall (i) deliver to each prospective investor that agrees
to
the foregoing, a current copy of the Offering Documents, (ii) maintain and
furnish to the Company a list of all prospective investors contacted by such
Placement Agent with regard to the Offering, including, if requested by the
Company, the addresses of such prospective investors and the name and telephone
number of a contact person with respect thereto, and (iii) present to the
Company all written offers for the purchase of Securities received by such
Placement Agent from any such prospective investors.
(b) Such
Placement Agent shall comply with all applicable federal, state and other
regulatory agencies’ securities laws, regulations and rules applicable to the
Offering, including, without limitation, those restricting the solicitation
of
investors and those requiring the delivery to investors of certain information
about the Company and the Offering.
(c) Such
Placement Agent shall comply with all applicable laws and the rules of the
National Association of Securities Dealers, Inc. in recommending to a customer
the purchase, sale or exchange of the Securities.
(d) Such
Placement Agent shall not give to any prospective investor any information,
sales or advertising material or make any representation in connection with
the
Offering other than as contained in the Offering Documents or as otherwise
agreed to by the Company which representation includes any untrue statement
of
any material fact or omission to state a material
Initial
Here (Company)
_________________
fact
necessary to make the representation, in light of the circumstances under which
they were made, not misleading, and will distribute such permitted materials
in
accordance with the legends thereon and applicable securities laws.
5. Covenants
of the Company.
The
Company agrees with the Agent that until this Agreement terminates pursuant
to
Section 11 hereof:
(a) The
Company will advise the Agent promptly and consult with the Agent regarding
the
drafting of the Offering Documents (but not including documents already filed
or
required to be filed, subsequent to the execution of this Agreement, with the
SEC in accordance with Section 12, Section 14 or Section 15 of the Exchange
Act)
and any amendments or supplements thereto and all related documents, including
Subscription Agreements, confidential investor questionnaires, an opinion of
counsel to the Company and other documents associated with the Offering. The
opinion will be addressed to the Placement Agents and will be substantially
in
the form attached hereto as Exhibit
F.
(b) The
Company will not distribute any Offering Documents or amendments or supplements
thereto, that name the Agent as a Placement Agent to any potential investor
without the prior written consent of the Agent.
(c) The
Company will furnish to the Agent copies of all Offering Documents in such
quantities as the Agent may reasonably request.
(d) If
any
event occurs following the Company’s agreement that marketing efforts may
commence and prior to the closing of the Offering as a result of which any
Offering Documents, as then amended or supplemented (including the documents
that are incorporated therein by reference), would include an untrue statement
of a material fact, or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, the Company will promptly prepare (and file with the
SEC
or any state securities commission, if so required) any amendment or supplement
which will correct such statement or omission or an amendment or supplement
which will effect such compliance and will supply such amended or supplemented
Offering Documents to the Agent, in each case as soon as available and in such
quantities as the Agent may reasonably request.
(e) During
the period from the date of this Agreement to the completion of the Offering,
an
officer of the Company shall promptly notify an officer of the Agent of material
events which would necessitate modification of any Offering Documents or any
amendments or supplements thereto and shall be reasonably responsive to the
Agent’s inquiries about the Company’s ongoing operations as they relate to the
Offering and the Offering Documents or any amendments or supplements thereto.
The Company shall permit the Agent to make such investigations of the business,
properties and financial and legal conditions of the Company and its
subsidiaries as the Agent may reasonably request provided such investigations
shall remain confidential. No such investigation by the Agent, if made, shall
affect the representations and warranties of the Company in Section 3
hereof.
Initial
Here (Company)
_________________
(f) Except
as
otherwise agreed to by the Company, as is required by law (including applicable
securities laws) or as is necessary to complete its engagement hereunder, the
Agent will keep confidential and use solely in the performance of its services
hereunder all information which is supplied by the Company and which has not
previously entered the public domain, and will not use any such information
for
its own benefit except in connection with the matters undertaken pursuant to
the
terms of this engagement. At the termination of this Agreement, upon the request
of the Company, the Agent shall return all information and copies thereof
furnished by the Company, other than materials which the Agent’s counsel advises
it to retain to evidence its due diligence in connection with the performance
of
its services.
6. No
Liability; Indemnification.
(a) Neither
the Agent or any other Placement Agent, nor any of their respective officers,
directors, employees, attorneys, agents, or representatives, or any person
controlling the Agent or any other Placement Agent within the meaning of federal
and state securities laws (“controlling persons”), will be liable to the Company
for any claims, damages, expenses, losses or liabilities of any kind or nature
(“Losses”) related to, arising out of, or in connection with their engagement
hereunder except to the extent a court having jurisdiction shall have determined
by a final nonappealable judgment that such Loss resulted from information
furnished by or on behalf of that Placement Agent in writing specifically for
use in the Offering Documents or the gross negligence or willful misconduct
of
such person, in which event the person or persons furnishing such information
or
so determined to have committed gross negligence or willful misconduct shall
not
be released by this paragraph 6(a).
(b) The
Company shall (1) indemnify and hold harmless the Agent, the other Placement
Agents and the respective directors, officers, agents, employees and controlling
persons of the Agent and such other Placement Agents (collectively, the “Agent
Indemnified Persons”) from and against any and all Losses of any kind or nature
(including reasonable attorneys’ fees) as incurred, to which any Agent
Indemnified Person may become subject, to the extent such Losses are related
to,
arise out of, or arise in connection with, the rendering of services by the
Agent or such other Placement Agents hereunder, including, without limitation,
(i) any Action (as defined below) or Loss related to, arising out of, or arising
in connection with any violation of the registration requirements under the
Securities Act or any state or foreign securities law in connection with the
offering contemplated by this Agreement, except that a Placement Agent and
its
directors, officers, agents, employees and controlling persons shall not be
indemnified against a registration violation caused by it or them, (ii) any
Action or Loss related to, arising out of, or arising in connection with any
breach of this Agreement by the Company and (iii) any Action or Loss related
to,
arising out of, or arising in connection with any untrue statement or alleged
untrue statement of any material fact contained in the Offering Documents,
or
any amendment or supplement thereto (including any document incorporated therein
by reference), or related to or arising out of the omission or alleged omission
to state therein a material fact necessary to make the statements therein not
misleading; provided, however, that in the case of this clause (iii) the Company
shall not be liable to a particular Placement Agent if and to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in conformity with information furnished by or on behalf of that
Placement Agent in writing specifically for use in the Offering Documents;
provided, however, that in any instance under this paragraph 6(b)
Initial
Here (Company)
_________________
an
Agent
Indemnified Person shall not be entitled to be indemnified and held harmless
hereunder to any extent that a court having jurisdiction shall determine by
a
final nonappealable judgment that such Losses resulted from the gross negligence
or willful misconduct of such Agent Indemnified Person; and (2) reimburse each
Agent Indemnified Person promptly for any reasonable legal or other out of
pocket expenses incurred by it, as they are incurred and for which reasonably
satisfactory documentation is provided to the Company, to the extent they relate
to matters for which the Agent Indemnified Person is entitled to indemnification
hereunder, in connection with investigating, preparing to defend or defending
or
providing evidence in any lawsuits, claims or other proceeding (“Actions”)
related to, arising out of, or in connection with, the rendering of services
by
the Agent or such other Placement Agents hereunder; provided, however, that
in
the event a final nonappealable judicial determination is made to the effect
that one or more Agent Indemnified Persons that makes a claim for
indemnification under this paragraph 6(b) is not entitled to be so indemnified
under this paragraph 6(b), such Agent Indemnified Person who is subject to
such
determination will remit to the Company any amounts previously reimbursed under
this subparagraph 6(b)(2).
(c) Each
Placement Agent, severally (and not jointly or jointly and severally), shall
(1) indemnify and hold harmless the Company and each of its directors,
officers, agents, employees and controlling persons (together with the Company,
collectively called the “Company Indemnified Persons”) from and against any and
all Losses of any kind or nature (including reasonable attorneys’ fees) as
incurred, to which the Company or any other Company Indemnified Person may
become subject, to the extent such Losses are related to, arise out of, or
arise
in connection with, the breach of this Agreement by such Placement Agent or
the
gross negligence or willful misconduct of such Placement Agent; and (2)
reimburse each Company Indemnified Person promptly for any reasonable legal
or
other out of pocket expenses incurred by it, as they are incurred and for which
reasonably satisfactory documentation is provided to the indemnifying Placement
Agent, to the extent such expenses relate to matters for which the Company
Indemnified Person is entitled to indemnification hereunder, in connection
with
investigating, preparing to defend or defending or providing evidence in any
Actions to the extent they relate to such matters. The indemnification provided
under this paragraph 6(c) includes, without limitation, any Action or Loss
arising from or in respect of any untrue statement or alleged untrue statement
of any material fact contained in the Offering Documents, or any amendment
or
supplement thereto, or related to or arising out of the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, but in any such case only if and to the extent such
misstatement or omission, or alleged misstatement or omission, was made in
conformity with information furnished by or on behalf of such Placement Agent
in
writing specifically for use in the Offering Documents; provided, however,
that
in the event a final nonappealable judicial determination is made to the effect
that one or more Company Indemnified Persons that makes a claim for
indemnification under this paragraph 6(c) is not entitled to be so indemnified
under this paragraph 6(c), such Company Indemnified Person who is subject to
such determination will remit to the Placement Agent any amounts previously
reimbursed under this subparagraph 6(c)(2).
(d) Each
indemnifying party agrees that the indemnification and reimbursement commitments
set forth in this paragraph 6 shall apply whether or not an Indemnified Person
is a formal party to any such Actions. The Company further agrees that without
the Agent’s prior
Initial
Here (Company)
_________________
consent,
which will not be unreasonably withheld, any settlement of a lawsuit, claim
or
other proceeding against the Company arising out of the engagement contemplated
by this Agreement that is entered into by the Company shall include an explicit
release from the party bringing such lawsuit, claim or other proceeding of
all
Indemnified Persons, which release shall be reasonably satisfactory to the
Agent.
(e) No
Indemnified Person may, without the indemnifying party’s prior written consent
(which will not be unreasonably withheld), settle or compromise or consent
to
the entry of any judgment to any pending or threatened Action in respect of
which indemnification may be sought hereunder. Promptly after receipt by an
Indemnified Person of notice of any intention or threat to commence an Action
or
notice of the commencement of any Action, such Indemnified Person will, if
a
claim in respect thereof is to be made against an indemnifying party pursuant
hereto, promptly notify the indemnifying party in writing of the same; provided,
however, that any delay or failure to give such notice shall not prejudice
the
rights of the Indemnified Person to be indemnified hereunder except to the
extent that the indemnifying party is actually prejudiced by such delay or
failure. In case any such Action is brought against any Indemnified Person,
the
indemnifying party may elect to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Person. An Indemnified Person may
retain separate counsel to participate in the defense of any such Action, which
shall be at its own expense unless such counsel advises the indemnifying party
in writing that the same counsel may not represent the indemnifying party and
such Indemnified Person under applicable ethical standards; provided, however,
that in no event shall an indemnifying party be required to pay fees and
expenses for more than one firm of attorneys representing all of the persons
entitled to indemnification hereunder (with the exception of local counsel
where
reasonably required).
(f) THE
COMPANY UNDERSTANDS AND ACKNOWLEDGES THAT THE INDEMNIFIED PERSONS ARE RELEASED
BY SECTION 6(a) FROM LIABILITY FOR THEIR OWN NEGLIGENCE (OTHER THAN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT DETERMINED AS STATED THEREIN) AND EACH PARTY
UNDERSTANDS THAT THE INDEMNIFIED PARTIES ARE INTENDED TO BE INDEMNIFIED AND
HELD
HARMLESS BY SECTION 6(b) AGAINST THEIR OWN NEGLIGENCE (OTHER THAN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT DETERMINED AS STATED
THEREIN).
(g) The
Company, the Agent and the Placement Agents agree that if any indemnification
or
reimbursement sought pursuant to paragraph 6 is determined by a court having
jurisdiction by a final nonappealable judgment to be unavailable other than
for
the reasons provided for in Section 6, then the Company and the Placement Agents
shall contribute to the losses, claims, damages, liabilities and expenses for
which such indemnification or reimbursement is held unavailable in such
proportion as is appropriate to reflect the relative benefits received by,
and
fault of, the Company on the one hand, and each Placement Agent on the other
hand (severally and not jointly or jointly and severally), in connection with
the transactions to which such indemnification or reimbursement relates, and
other equitable considerations; provided, however, that in no event shall the
amount to be contributed by any Placement Agent pursuant to this paragraph
6(g)
exceed the amount of the fees actually received by such Placement Agent under
this Agreement.
Initial
Here (Company)
_________________
7. Allocation
of Fees.
If, on
or prior the date of closing of the Offering, any proposed Placement Agent
whose
name is set forth on Exhibit
C
shall
fail to execute the Agreement Among Placement Agents and participate in the
Offering, the fee that such Placement Agent would have received shall be
allocated to the participating Placement Agents in the proportion that their
respective fee allocations set forth on Exhibit
C
bear to
the aggregate fee percentage that would exist in the absence of the fee
contemplated to be paid to the nonparticipating Placement Agent.
8. Notice.
All
notices, requests, demands, claims, and other communications hereunder will
be
in writing. Any notice, request, demand, claim or other communication if
addressed to the intended recipient as set forth below shall be deemed to be
duly given either when personally delivered or two days after it is sent by
registered or certified mail, return receipt requested, postage prepaid, or
one
day after it is delivered to a commercial overnight courier, or upon
confirmation if delivered by facsimile:
If
to the
Company:
Carrizo
Oil & Gas, Inc.
0000
Xxxxxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attn:
Xx.
Xxxx X. Xxxxxx
Chief
Financial Officer
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
With
copy
to:
Xxxxx
Xxxxx L.L.P.
One
Shell
Plaza
000
Xxxxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Attn:
Xxxx X. Xxxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
If
to the
Agent:
Xxxxxxx
Xxxx & Company L.L.C.
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Attn: Xxxxxx
X.
Xxxxxxxx, Partner
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Initial
Here (Company)
_________________
With
copy
to:
Xxxxxx
& Xxxxxx, L.L.P.
0000
Xxxx
Xxxxxx, 00xx Xxxxx
Xxxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Any
party
may give any notice, request, demand, claim, or other communication hereunder
using any other means, but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it is
actually received by the party for whom it is intended. Any party may change
the
address to which such notices, requests, demands, claims, or other
communications are to be delivered by giving the other parties notice in the
manner herein set forth.
9. Benefit
and Non-Assignment.
This
Agreement is made solely for the benefit of the Agent and the other Placement
Agents, the Company, their respective officers and directors and any controlling
person referred to in Section 15 of the Securities Act, the respective
Indemnified Persons, and their respective successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Notwithstanding the foregoing, this Agreement may not be assigned by the Agent
without the prior written consent of the Company or assigned by the Company
without the prior written consent of the Agent. The term “successor” or the term
“successors and assigns” as used in this Agreement shall not include any
purchasers, as such, in the Offering. the Agent is acting on behalf of itself
and the other Placement Agents and may enter into any amendment or waiver of
the
provisions hereof on behalf of such Placement Agents.
10. Survival.
Subject
to any applicable statutes of limitations, the respective agreements,
representations, warranties, covenants and other statements, of the Agent or
the
Company or their officers as set forth in or made pursuant to this Agreement
shall survive and remain in full force and effect for a period of two (2) years,
regardless of (i) any investigation made by or on behalf of the Agent or the
Company or any such officer or director thereof or any controlling person of
the
Company or the Agent and (ii) delivery of or payment for the Securities. Any
successor of the Company or the Agent or any controlling person, officer or
director thereof, as the case may be, shall be entitled to the benefits hereof.
Notice of a claim or Loss shall toll the expiration of each agreement,
representation, warranty, covenant and other statement on which such claim
or
Loss is based.
11. Termination.
Either
party may, at its option, terminate this Agreement prior to the Closing of
the
Offering upon giving the other party written notice in the event that (a) the
other party fails to cure any violation of its representations and warranties
in
Section 3 or 4 hereof, as applicable, within 15 days after the non-terminating
party receives written notice of such violation, or (b) the other party fails
to
comply in any material respect with any of its covenants, including, in the
case
of the Company, those in Section 5 hereof. Notwithstanding any other provision
in this Agreement, this Agreement shall terminate on the earlier of (i) August
8, 2006
Initial
Here (Company)
_________________
or
(ii)
the closing of the Offering; provided, however, that the Company and the Agent
may mutually agree to extend such deadline; provided further, however, that
except as otherwise provided herein, neither the termination, for any reason,
of
this Agreement nor the Closing of the Offering shall affect (1) any compensation
earned by the Agent up to the date of termination or completion, as the case
may
be; (2) the reimbursement of expenses incurred by the Agent up to the date
of
termination or completion, as the case may be; (3) the release and
indemnification provisions of Section 6 hereof, all of which shall remain
operative and in full force and effect; (4) the representations and warranties
in Sections 3 and 4 hereof; and (5) any liability for breaches that occur prior
to the date of termination.
12. Governing
Law.
The
validity, interpretation and construction of this Agreement and of each part
hereof will be governed by the laws of the State of
Texas without regard to
the
conflict of laws principles thereof.
13. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which may
be
deemed an original and all of which together will constitute one and the same
instrument.
[signature
page follows]
Initial
Here (Company)
_________________
If
the
foregoing is in accordance with your understanding of our agreement, kindly
sign
and return to us the enclosed duplicate hereof, whereupon it will become a
binding agreement between the Company and the Placement Agents in accordance
with its terms.
Very
truly yours,
XXXXXXX
XXXX & COMPANY L.L.C.
By: /s/
Xxxxxx X. Xxxxxxxx
Name:Xxxxxx
X. Xxxxxxxx
Title:Partner
Accepted
this 25th day of July, 2006
CARRIZO
OIL & GAS, INC.
By:
/s/
Xxxx X. Xxxxxx
Xxxx
X.
Xxxxxx
Chief
Financial Officer
Initial
Here (Company)
_________________
