1
9,200,000 Shares
Bayard Drilling Technologies, Inc.
Common Stock
UNDERWRITING AGREEMENT
November , 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXXX XXXXXX REFSNES, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
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:
Bayard Drilling Technologies, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the several underwriters named in
Schedule I hereto (the "UNDERWRITERS"), and certain stockholders of the Company
named in Schedule II hereto (the "SELLING STOCKHOLDERS") severally propose to
sell to the several Underwriters, an aggregate of 9,200,000 shares of the
common stock, par value $0.01 per share, of the Company (the "FIRM SHARES"), of
which 4,000,000 shares are to be issued and sold by the Company and 5,200,000
shares are to be sold by the Selling Stockholders, each Selling Stockholder
selling the amount set forth opposite such Selling Stockholder's name in
Schedule II hereto. In addition, the Company proposes to issue and sell and the
Selling Stockholders propose to sell to the several Underwriters not more than
an additional
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1,380,000 shares of common stock, par value $0.01 per share, of the Company
(the "ADDITIONAL SHARES") if requested by the Underwriters as provided in
Section 2 hereof; in the amount of 169,050 Additional Shares in the case of the
Company and, in the case of the Selling Stockholders, in the amounts set forth
opposite such Selling Stockholders' names on Schedule II hereof. The Firm
Shares and the Additional Shares are hereinafter referred to collectively as
the "SHARES." The shares of common stock of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "COMMON STOCK." The Company and the Selling Stockholders are hereinafter
sometimes referred to collectively as the "SELLERS."
SECTION 1. Registration Statement 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-1, including a
prospectus, relating to the Shares. 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 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
Shares is hereinafter referred to as the "PROSPECTUS." 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 shares of Common
Stock (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.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements. On
the basis of the representations and warranties contained in this Agreement,
and subject to its terms and conditions, (i) the Company agrees to issue and
sell 4,000,000 Firm Shares, (ii) each Selling Stockholder agrees, severally and
not jointly, to sell the number of Firm Shares set forth opposite such Selling
Stockholder's name in Schedule II hereto and (iii) each Underwriter agrees,
severally and not jointly, to purchase from each Seller at a price per Share of
$________ (the "PURCHASE PRICE") the number of Firm Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the
same proportion to the total number of Firm Shares to be sold by such Seller as
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, (i) the Company agrees to
issue and sell up to 169,050 Additional Shares, (ii) each of the Selling
Stockholders severally agrees to sell the number of Additional Shares set forth
opposite such Selling Stockholder's name on Schedule II hereof and (iii) the
Underwriters shall have the right to purchase, severally and not jointly, up to
an aggregate of 1,380,000 Additional Shares from the Company and the Selling
Stockholders at the Purchase Price and in the amounts from each Seller
hereinafter specified. Additional Shares may be purchased solely for the
purpose of covering over-allotments made in connection with the offering of the
Firm Shares. The Underwriters may exercise their right to purchase Additional
Shares in whole or in part from time
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to 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 number of Additional
Shares 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 Shares are to
be purchased, each Underwriter, severally and not jointly, agrees to purchase
from each Seller the number of Additional Shares (subject to such adjustments
to eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Shares to be purchased from such
Seller as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Shares.
Each Seller 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 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 180 days after the date of the Prospectus without the prior written
consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ").
Notwithstanding the foregoing, during such period (i) the Company may grant
stock options or other awards pursuant to the Company's existing stock option
plans, (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 and (iii) the Company may issue shares of Common Stock as payment of any
part of the purchase price for on-shore drilling rigs and related equipment (or
businesses or capital stock of businesses that operate on-shore drilling rigs
or related equipment (provided, however, that such shares will be subject to
the same restrictions on transfer for the same time period set forth in this
Section 2)). Except for registration statements on Form S-8 with respect to
shares of Common Stock that may be issued under the Company's existing stock
option plans, the Company also agrees not to file any 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 180 days after
the date of the Prospectus without the prior written consent of DLJ. In
addition, each Selling Stockholder agrees that, for a period of 180 days after
the date of the Prospectus without the prior written consent of DLJ, it will
not 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. The Company shall, prior to or
concurrently with the execution of this Agreement, deliver an agreement
executed by (i) each Selling Stockholder, (ii) each of the directors and
officers of the Company who is not a Selling Stockholder and (iii) each
stockholder listed on Annex I hereto to the effect that such person will not,
during the period commencing on the date such person signs such agreement and
ending 180 days after the date of the Prospectus, without the prior written
consent of DLJ, (A) engage in any of the transactions described in the first
sentence of this paragraph or (B) make any demand for,
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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 Sellers are advised by you
that the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Firm Shares shall be made at 9:00 A.M., New York City time, on
, 1997 (the "CLOSING DATE") at such place as you shall designate.
The Closing Date and the location of delivery of and payment for the Firm
Shares may be varied by agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at such place as you shall
designate at 9:00 A.M., New York City time, on the date specified in the
applicable exercise notice given by you pursuant to Section 2 (an "OPTION
CLOSING DATE"). Any such Option Closing Date and the location of delivery of
and payment for such Additional Shares may be varied by agreement between you
and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or an Option Closing Date, as the
case may be. Such certificates shall be made available to you for inspection
not later than 9:30 A.M., New York City time, on the business day immediately
prior to the Closing Date or the applicable Option Closing Date, as the case
may be. Certificates in definitive form evidencing the Shares shall be
delivered to you on the Closing Date or the applicable Option Closing Date, as
the case may be, with any transfer taxes thereon duly paid by the respective
Sellers, for the respective accounts of the several Underwriters, against
payment to the Sellers of the Purchase Price therefor by wire transfer of
Federal or other funds immediately available in New York City.
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 Shares 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 been filed with the Commission 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
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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.
(b) To furnish to you six signed copies of the Registration Statement
as first filed with the Commission and of each amendment to it, including all
exhibits, 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, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall
be satisfactory to you, and to file the Prospectus in such form with the
Commission within the applicable period specified in Rule 424(b) under the Act;
during the period specified in Section 5(d) below, 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 unless
the Company shall have determined based on the advice of counsel that such
amendment or supplement is required by law; and, during such period, 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 Shares 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)
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 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 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 that you may specify
as many copies thereof as such Underwriter or dealer may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with you
and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such
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jurisdictions as you may request, to continue such registration or
qualification in effect so long as required for distribution of the Shares 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
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 Shares, in any jurisdiction in which
it is not now so subject.
(g) To mail or otherwise make generally available to its stockholders
as soon as practicable an earnings statement covering the twelve-month period
ending December 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.
(h) During the period of three years after the date of this Agreement,
to furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may reasonably
request.
(i) 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 the Sellers' obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company's
counsel, the Company's accountants and any Selling Stockholder's counsel (in
addition to the Company's counsel) in connection with the registration and
delivery of the Shares under the Act and all other fees and 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 Shares 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 Shares, (iv) all expenses
in connection with the registration or qualification of the Shares 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 in connection with the review and clearance of the offering of the Shares
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 Common Stock and all costs and expenses
incident to the listing of the Shares on the American Stock Exchange ("AMEX")
and other national securities exchanges and foreign stock exchanges, (vii) the
cost of printing certificates representing the Shares, (viii) the costs
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and charges of any transfer agent, registrar and/or depositary, and (ix) all
other costs and expenses incident to the performance of the obligations of the
Company and the Selling Stockholders hereunder for which provision is not
otherwise made in this Section. Notwithstanding any of the foregoing, the
Selling Stockholders will pay all expenses incident to the performance of their
obligations under, and the consummation of the transactions contemplated by,
this Agreement, including the fees and disbursements of their respective
counsel. The provisions of this Section shall not supersede or otherwise affect
any agreement that the Company and the Selling Stockholders may otherwise have
for allocation of such expenses among themselves.
(j) To use its best efforts to list the Shares on the AMEX and to
maintain the listing of the Shares on the AMEX, the New York Stock Exchange or
the Nasdaq National Market for a period of three years after the date of this
Agreement.
(k) 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 or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Shares.
(l) If the Registration Statement at the time of the effectiveness of
this Agreement does not cover all of the Shares, to file a Rule 462(b)
Registration Statement with the Commission registering the Shares 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 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, to the Company's
knowledge, threatened by the Commission.
(b)(i) 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, (ii) 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,
(iii) 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
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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 (iv) 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 (b) 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 (c) do not apply to statements or
omissions in any preliminary 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 subsidiaries set forth on Exhibit 21.1
to the Registration Statement (the "MATERIAL SUBSIDIARIES") has been duly
incorporated or formed, is validly existing as a corporation or limited
liability company in good standing under the laws of its jurisdiction of
incorporation or formation and has the corporate or limited liability company
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 or limited liability company 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 reasonably be expected to have a material
adverse effect on the business, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole.
(e) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities or commitments of sale or liens granted or issued
by the Company or any of its Material Subsidiaries relating to or entitling any
person to purchase or otherwise to acquire any shares of the capital stock of
the Company or any of its Material Subsidiaries, except as otherwise disclosed
in the Registration Statement.
(f) All the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders) have been duly
authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights; and the Shares to be issued and
sold by the Company have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor as provided by this Agreement, will
be validly issued, fully paid and
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non-assessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights.
(g) All of the outstanding shares of capital stock or other evidences
of equity ownership of each of the Company's Material 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.
(h) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(i) Neither the Company nor any of its Material Subsidiaries is (i) in
violation of its respective charter or bylaws or other organizational documents
or (ii) 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 Material
Subsidiaries is a party or by which the Company or any of its Material
Subsidiaries or their respective property is bound, except with respect to item
(ii) for such defaults that would not reasonably be expected to have a material
adverse effect on the business, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole.
(j) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as are required under the Act
or as may be required under the securities or Blue Sky laws of the various
states), (ii) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter, bylaws or other organizational
documents of the Company or any of its Material Subsidiaries, (iii) conflict
with or constitute a breach of any of the terms or provisions of, or a default
under, any indenture, loan agreement, mortgage, lease or other agreement or
instrument to which the Company or any of its Material Subsidiaries is a party
or by which the Company or any of its Material Subsidiaries or their respective
property is bound, or (iv) 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; or (v) result in the suspension, termination or
revocation of any Authorization (as defined below) of the Company or any of its
Material Subsidiaries or any other impairment of the rights of the holder of
any such Authorization; except with respect to items (i), (iii), (iv) and (v)
for such consents, approvals, authorizations, orders or qualifications which if
not made or obtained, or conflicts, violations or defaults which if existing,
or suspensions, terminations or revocations which if existing would not
reasonably be expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
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(k) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any of its Material
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 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.
(l) Neither the Company nor any of its Material 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 reasonably be expected to have a
material adverse effect on the business, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole.
(m) Each of the Company and its Material 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 would not, singly or in the aggregate, have a
material adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole. Each such
Authorization is valid and in full force and effect and each of the Company and
its Material Subsidiaries is in substantial 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, to the
knowledge of the Company, 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 material impairment of the rights of
the holder of any such Authorization; and, except as disclosed in the
Prospectus, such Authorizations contain no restrictions that are burdensome to
the Company or any of its Material Subsidiaries; and, except as disclosed in
the Prospectus, 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, reasonably be
expected to have a material adverse effect on the business, financial condition
or results of operations of the Company and its subsidiaries, taken as a whole.
(n) Except as disclosed in the Prospectus, 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
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granted thereunder, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(o) This Agreement has been duly authorized, executed and delivered by
the Company.
(p) Coopers & Xxxxxxx L.L.P. and Xxxxx Xxxxxxxx LLP are independent
public accountants with respect to the Company and its subsidiaries as required
by the Act.
(q) The consolidated financial statements included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto),
together with related schedules and notes, present fairly the consolidated
financial position, results of operations and changes in financial position of
the Company and its subsidiaries on the basis stated therein 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; the supporting schedules, if any,
included in the Registration Statement present fairly in accordance with
generally accepted accounting principles the information required to be stated
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.
(r) The Company is not and, after giving effect to the offering and
sale of the Shares 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.
(s) Except as has been described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares registered
pursuant to the Registration Statement.
(t) 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.
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(u) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(v) Each certificate signed by any officer of the Company and
delivered at the Closing to the Underwriters or counsel for the Underwriters
shall be deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
(w) The Company and its subsidiaries have good and indefeasible title
to all real property and good and marketable title to all personal property
owned by them and which is material to the business of the Company and its
subsidiaries, taken as a whole, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or such
as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries and which are material to the
business of the Company and its subsidiaries, taken as a whole, are held by
them under valid, subsisting and enforceable leases.
(x) The Company and each of its Material Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which
they are engaged; and neither the Company nor any of its Material Subsidiaries
has received notice from any insurer which indicates that the Company or such
Material Subsidiary will not be able to renew its existing insurance coverage
as and when such coverage expires.
(y) No relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which is required by the Act to be described in
the Registration Statement or the Prospectus which is not so described.
(z) The pro forma financial statements of the Company and its
subsidiaries and the related notes thereto set forth in the Registration
Statement and the Prospectus (and any supplement or amendment thereto) have
been prepared on a basis consistent with the historical financial statements of
the Company and its subsidiaries, give effect to the assumptions used in the
preparation thereof on a reasonable basis and in good faith and present fairly
the historical and proposed transactions contemplated by the Registration
Statement and the Prospectus. Such pro forma financial statements have been
prepared in accordance with the applicable requirements of Rule 11-02 of
Regulation S-X promulgated by the Commission. The other pro forma financial and
statistical information and data set forth in the Registration Statement and
the Prospectus (and any supplement or amendment thereto) are, in all material
respects, accurately presented and prepared on a basis consistent with the pro
forma financial statements.
(aa) The Company and each of its Material Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in
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accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(bb) All material tax returns required to be filed by the Company and
each of its subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges
due pursuant to such returns or pursuant to any assessment received by the
Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
SECTION 7. Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder severally represents and warrants to each Underwriter
that:
(a) Such Selling Stockholder is the lawful owner of the Shares to be
sold by such Selling Stockholder pursuant to this Agreement and has, and on the
Closing Date will have, good and clear title to such Shares, free of all
restrictions on transfer (other than any restrictions arising pursuant to
applicable securities laws), liens, encumbrances, security interests, equities
and claims whatsoever.
(b) Such Selling Stockholder has, and on the Closing Date will have,
full legal right, power and authority, and all authorization and approval
required by law, to enter into this Agreement, the Custody Agreement signed by
such Selling Stockholder and the Company, as Custodian, relating to the deposit
of the Shares to be sold by such Selling Stockholder (the "CUSTODY AGREEMENT")
and the Power of Attorney of such Selling Stockholder appointing certain
individuals as such Selling Stockholder's attorneys-in-fact (the "ATTORNEYS")
to the extent set forth therein, relating to the transactions contemplated
hereby and by the Registration Statement and the Custody Agreement (the "POWER
OF ATTORNEY") and to sell, assign, transfer and deliver the Shares to be sold
by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Stockholder.
(d) The Custody Agreement of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding agreement of such Selling Stockholder, enforceable in accordance
with its terms.
(e) The Power of Attorney of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding instrument of such Selling Stockholder, enforceable in accordance
with its terms, and, pursuant to such Power of
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Attorney, such Selling Stockholder has, among other things, authorized the
Attorneys, or any one of them, to execute and deliver on such Selling
Stockholder's behalf this Agreement and any other document that they, or any
one of them, may deem necessary or desirable in connection with transactions
contemplated hereby and thereby and to deliver the Shares to be sold by such
Selling Stockholder pursuant to this Agreement.
(f) Upon delivery of and payment for the Shares to be sold by such
Selling Stockholder pursuant to this Agreement, good and clear title to such
Shares will pass to the Underwriters, free of all restrictions on transfer,
liens, encumbrances, security interests, equities and claims whatsoever.
(g) The execution, delivery and performance of this Agreement and the
Custody Agreement and Power of Attorney of such Selling Stockholder by or on
behalf of such Selling Stockholder, the compliance by such Selling Stockholder
with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (i) require any consent,
approval, authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the Act, or
the securities or Blue Sky laws of the various states), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the organizational documents of such Selling Stockholder, if such Selling
Stockholder is not an individual, (iii) conflict with or constitute breach of
any of the terms or provisions of, or default under, any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder or any
property of such Selling Stockholder is bound or (iv) 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 such Selling
Stockholder or any property of such Selling Stockholder; except for such
consents, approvals, authorizations, orders or qualifications which if not made
or obtained, or conflicts, violations or defaults which if existing, would not
adversely affect the performance by the Selling Stockholder of its obligations
hereunder.
(h) The information in the Registration Statement under the caption
"Principal and Selling Stockholders" which specifically relates to such Selling
Stockholder does not, and will not on the Closing Date, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(i) At any time during the period described in Section 5(d), if there
is any change in the information referred to in Section 7(i), such Selling
Stockholder will promptly notify you of such change.
(j) Each certificate signed by or on behalf of such Selling
Stockholder and delivered on the Closing Date to the Underwriters or counsel
for the Underwriters shall be deemed to be a representation and warranty by
such Selling Stockholder to the Underwriters as to the matters covered thereby.
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SECTION 8. Indemnification. (a) The Sellers, jointly and severally,
agree 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 Securities Exchange Act
of 1934, as amended (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; provided, however, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter in connection with any
losses, claims, damages and liabilities and judgments if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given to the person
asserting such losses, claims, damages, liabilities or judgments at or prior to
the written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended and supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or judgment, unless such failure to
deliver such amended or supplemented Prospectus was a result of noncompliance
by the Company with its delivery obligations under Section 5 hereof.
Notwithstanding the foregoing, the aggregate liability of any Selling
Stockholder pursuant to this Section 8(a) shall be limited to an amount equal
to the total proceeds (after deducting underwriting discounts and commissions
but before deducting expenses) received by such Selling Stockholder from the
Underwriters for the sale of the Shares sold by such Selling Stockholder
hereunder.
Notwithstanding the foregoing, the Underwriters agree that, in the
case of any loss, claim, damage, liability or judgment for which they may claim
indemnification hereunder, they will first make demand for indemnification from
the Company, and will not seek to enforce any right or remedy granted under
this Section 8 against any Selling Stockholder, unless and until (i) the
Underwriters shall have delivered a written demand for indemnification
hereunder to the Company and (ii) the Company shall have failed to observe or
comply in all material respects with any of its obligations hereunder in
respect of such loss, claim, damage, liability or judgment for a period of at
least 60 days following the delivery of such written demand. In the event that
the Company and the Selling Stockholders shall have failed to comply with their
obligations in respect of any loss, claim, damage, liability or judgment, the
Underwriters further agree that (x) they will not commence any legal proceeding
against any Selling Stockholder to recover such loss, claim, damage, liability
or judgment unless, prior to or concurrently therewith, they shall have
commenced a legal proceeding against the Company to recover the same, (y) they
will diligently and in good faith prosecute any such legal proceeding against
the Company for as long as any Selling Stockholder is a party thereto, and (z)
in the event that judgments are entered in favor of the Underwriters against
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both the Company and one or more Selling Stockholders in any such legal
proceeding, (1) during the period of 90 days following the date on which the
judgment against the Company becomes final and is not subject to appeal, the
Underwriters will take commercially reasonable efforts to enforce and collect
the judgment entered against the Company, including abstracting the judgment,
levying execution of the judgment against the Company and pursuing other
commercially reasonable steps to collect the judgment from the Company, and
will not seek to enforce the judgment entered against any such Selling
Stockholder and (2) after the expiration of such period, the Underwriters may
seek to enforce the judgment entered against such Selling Stockholder, but will
continue to take commercially reasonable steps to enforce the judgment entered
against the Company for so long as they are seeking to enforce the judgment
entered against any Selling Stockholder; provided, however, that the
Underwriters shall be relieved of their obligation to seek a judgment against
the Company, to seek to obtain payment from the Company in satisfaction of such
judgment, or, having sought such satisfaction to wait 60 days after such
failure by the Company to immediately satisfy any such judgment if, at any
time, (i) the Company files a petition for relief under the United States
Bankruptcy Code (the "BANKRUPTCY CODE"), (ii) an order for relief is entered
against the Company in an involuntary case under the Bankruptcy Code and such
order remains in effect for 90 consecutive days, (iii) the Company makes an
assignment for the benefit of its creditors or (iv) any court orders or
approves the appointment of a receiver or custodian for the Company or a
substantial portion of its assets and such order continues in effect for 90
consecutive days.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
Selling Stockholder and each person, if any, who controls such Selling
Stockholder 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 Sellers 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 8(a) or 8(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 8(a) and 8(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 8(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 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
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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 (i) the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all Underwriters, their officers and directors and all
persons, if any, who control any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, (ii) the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for the Company, its directors, its officers who sign the Registration
Statement and all persons, if any, who control the Company within the meaning
of either such Section and (iii) the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all Selling
Stockholders and all persons, if any, who control any Selling Stockholder
within the meaning of either such Section, and all such fees and expenses shall
be reimbursed as they are incurred. In the case of any such separate firm for
the Underwriters, their officers and directors and such control persons of any
Underwriters, such firm shall be designated in writing by DLJ. In the case of
any such separate firm for the Company and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the
Company. In the case of any such separate firm for the Selling Stockholders and
such control persons of any Selling Stockholders, such firm shall be designated
in writing by the Attorneys. 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
(i) effected with the indemnifying party's written consent or (ii) effected
without its written consent if the settlement is entered into more than twenty
business days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel
(in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. 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
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 8
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,
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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
Sellers on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause 8(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 8(d)(i) above
but also the relative fault of the Sellers 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
Sellers 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 Sellers, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Shares, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Sellers 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 Selling Stockholders on
the one hand or the Underwriters on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Sellers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(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 8, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares 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 8(d) are several in proportion to the
respective number of Shares purchased by each of the Underwriters hereunder and
not joint.
(e) The remedies provided for in this Section 8 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.
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(f) Each Selling Stockholder hereby designates Bayard Drilling
Technologies, Inc., 0000 X.X. Xxxxxxxxxx, Xxxxx 000X, Xxxxxxxx Xxxx, XX 00000,
as its authorized agent, upon which process may be served in any action which
may be instituted in any state or federal court in the State of New York by any
Underwriter, any director or officer of any Underwriter or any person
controlling any Underwriter asserting a claim for indemnification or
contribution under or pursuant to this Section 8, and each Selling Stockholder
will accept the jurisdiction of such court in such action, and waives, to the
fullest extent permitted by applicable law, any defense based upon lack of
personal jurisdiction or venue. A copy of any such process shall be sent or
given to such Selling Stockholder, at the address for notices specified in
Section 12 hereof.
SECTION 9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares 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 (in the case of representations and
warranties that are qualified as to materiality) or true and correct in all
material respects (in the case of representations and warranties that are not
so qualified) on the 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 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, to the knowledge of the Company, contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by Xxxxx X. Xxxxx and Xxxxx X. Xxxxx, in their
respective capacities as the Chief Executive Officer and Chief Financial
Officer of the Company, confirming the matters set forth in Sections 6(t), 9(a)
and 9(b) and that the Company has complied with all of the agreements and
satisfied all of the conditions herein contained and required to be complied
with or satisfied by the Company on or prior to the Closing Date.
(d) 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 9(d)(i),
9(d)(ii) or 9(d)(iii), in your judgment, is material
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and adverse and, in your judgment, makes it impracticable to market the Shares
on the terms and in the manner contemplated in the Prospectus.
(e) All the representations and warranties of each Selling Stockholder
contained in this Agreement shall be true and correct (in the case of
representations and warranties that are qualified as to materiality) or true
and correct in all material respects (in the case of representations and
warranties that are not so qualified) on the Closing Date with the same force
and effect as if made on and as of the Closing Date and you shall have received
on the Closing Date a certificate dated the Closing Date from each Selling
Stockholder to such effect and to the effect that such Selling Stockholder has
complied with all of the agreements and satisfied all of the conditions herein
contained and required to be complied with or satisfied by such Selling
Stockholder on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion (in a form
reasonably satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Xxxxx & Xxxxx, L.L.P., counsel for the Company and the Selling
Stockholders, to the effect that:
(i) Each of the Company and its Material Subsidiaries which
are corporations has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate power and authority to
own, lease and operate its property and to conduct its business as
described in the Prospectus; WD Equipment, L.L.C. has been duly formed
and is validly existing as a limited liability company in good
standing under the Delaware Limited Liability Company Act and has all
requisite power and authority under its limited liability company
agreement and the Delaware Limited Liability Company Act to own, lease
and operate its property and to conduct its business as described in
the Prospectus;
(ii) Each of the Company and its Material Subsidiaries is
duly qualified and is in good standing as a foreign corporation or
foreign limited liability company (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 reasonably be
expected to have a material adverse effect on the business, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole;
(iii) All the outstanding shares of capital stock of the
Company (including the Shares to be sold by the Selling Stockholders)
have been duly authorized by all necessary corporate action on the
part of the Company and are validly issued, fully paid and
non-assessable, and none of such outstanding shares of Common Stock
were issued in violation of any preemptive or other similar rights to
subscribe for or purchase the same arising under the Certificate of
Incorporation or Bylaws of the Company or the General Corporation Law
of the State of Delaware or, to their knowledge, under any agreement
to which the Company or any of its Material Subsidiaries is a party or
by which it is bound;
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(iv) The Shares to be issued and sold by the Company
hereunder have been duly authorized by all necessary corporate action
on the part of the Company and, when issued and delivered to the
Underwriters against payment of the consideration therefor as provided
in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable and such Shares will not have
been issued in violation of any preemptive or similar rights to
subscribe for or purchase the same arising under the Certificate of
Incorporation or Bylaws of the Company or the General Corporation Law
of the State of Delaware or, to their knowledge, under any agreement
to which the Company or any of its subsidiaries is a party or by which
it is bound;
(v) All of the outstanding shares of capital stock of each of
the Material Subsidiaries which are corporations have been duly
authorized and validly issued and are fully paid and non-assessable;
all of the outstanding limited liability company interests in WD
Equipment, L.L.C. have been duly authorized and validly issued in
accordance with the limited liability company agreement of WD
Equipment, L.L.C. in exchange for the capital contributions specified
therein; and, to the Company's knowledge, all of the outstanding
shares of capital stock or limited liability company interests, as the
case may be, of the Material Subsidiaries 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;
(vi) This Agreement has been duly authorized by all necessary
corporate action on the part of the Company, executed and has been
delivered by the Company;
(vii) The authorized capital stock of the Company conforms as
to legal matters in all material respects to the description thereof
contained in the Prospectus;
(viii) Based solely upon oral confirmation from the staff of
the Commission, the Registration Statement has become effective under
the Act; to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened by the
Commission;
(ix) The statements under the captions "Management's
Discussion and Analysis of Financial Condition and Results of
Operations-Financial Condition and Liquidity", "Business-Government
Regulation and Environmental Matters", "Management", "Certain
Relationships and Related Transactions", and "Description of Capital
Stock" and "Underwriting" in the Prospectus and Items 14 and 15 of
Part II of the Registration Statement, insofar as such statements
constitute a summary of the legal matters or documents referred to
therein, are accurate and fairly present the information set forth
therein, in each case in all material respects;
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(x) No consent, approval, authorization or order of, or
qualification with, any Applicable Governmental Authority (as
hereinafter defined) is required pursuant to any Applicable Laws (as
hereinafter defined) for the execution and delivery of this Agreement
by the Company, the performance by the Company of its obligations
hereunder or the consummation by the Company of the transactions
contemplated hereby, except for any such consent, approval,
authorization, order or qualification which (i) has been made or
obtained prior to the Closing Date or (ii) may be required under
applicable state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters
and the clearance of such offering with the NASD (as to which such
counsel need not express an opinion); or (iii) if not made or obtained
would not have a material adverse effect on the Company and its
Subsidiaries, taken as a whole;
(xi) The execution and delivery of this Agreement by the
Company, the performance by the Company of its obligations hereunder
and the consummation by the Company of the transactions contemplated
hereby will not (i) result in a violation of the terms of Certificate
of Incorporation or Bylaws of the Company or the Material
Subsidiaries, (ii) result in a breach or violation of or constitute
(either alone or with notice or the passage of time, or both) a
default under, any agreement, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other instrument to which the
Company or its Material Subsidiaries is a party or by which the
Company, the Material Subsidiaries or their properties are bound that
is filed as an exhibit to the Registration Statement, (iii) result in
a violation of any Applicable Laws to which the Company, the Material
Subsidiaries or their properties are subject or any judgment, decree
or order of any Applicable Governmental Authority that specifically
names the Company, the Material Subsidiaries or is directed at their
property (provided, however, that such counsel need not express an
opinion with respect to compliance with any federal or state
securities or antifraud law, rule or regulation except as otherwise
specifically stated in the opinion of such counsel); except for any
such violation, breach or default referred to in clause (i),(ii) or
(iii) above which would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole;
(xii) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened against the Company or
any of the Material Subsidiaries or by 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;
(xiii) The Company is not and, after giving effect to the
offering and sale of the Shares 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;
(xiv) To the knowledge of such counsel, except as described
in the Prospectus, no holder of securities of the Company has any
right to require the registration of such securities by the Company
under Act as a result of the filing of the Registration Statement or
in
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connection with the offering of the Shares pursuant to the Prospectus
which have not been waived by such holder or complied with by the
Company;
(xv) The Registration Statement (and any amendment thereto),
as of its effective date, and the Prospectus (or any supplement or
amendment thereto), as of its date (other than (a) the financial
statements and schedules (including the notes thereto and the
auditors' reports thereon) included therein and (b) the other
financial information included therein appear on their face to comply
as to form in all material respects with the requirements of the Act.
As used herein, (i) the term "APPLICABLE LAWS" means the
General Corporation Law of the State of Delaware, the contract laws of the
State of New York, the laws of the State of Texas and the laws of the United
States of America that, in the experience of such counsel, are normally
applicable to transactions of the type contemplated by this Agreement and (ii)
the term "APPLICABLE GOVERNMENTAL AUTHORITY" means any governmental authority
or body of the United States of America or the State of Texas or the State of
New York or (solely with respect to the General Corporation Law of the State of
Delaware) the State of Delaware.
Such opinion shall also include a statement to the effect
that although such counsel did not independently verify, are not passing upon
and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus (except to the extent stated in paragraphs (f)(vii) and (f)(ix)
above), they advise you that no facts have come to their attention which lead
them to believe that the Registration Statement (other than (i) the financial
statements (including the notes thereto and the auditors' report thereon)
included therein, and (ii) the other financial information included therein, as
to which such counsel need express no opinion), as of its effective date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (other than (i) the financial
statements (including the notes thereto and the auditors' report thereon)
included therein and (ii) the other financial information included therein), as
of its date and as of the Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits 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.
(g) You shall have received on the Closing Date, with respect to
each Selling Stockholder, an opinion (in form reasonably satisfactory to you
and counsel for the Underwriters), dated the Closing Date, of Xxxxx & Xxxxx,
L.L.P. (to the extent that Xxxxx & Xxxxx, L.L.P. is counsel to such Selling
Stockholder) or other counsel reasonably acceptable to you to the effect that:
(i) Such Selling Stockholder is the sole registered holder of
the Shares to be sold by such Selling Stockholder pursuant to this
Agreement; upon delivery of the Shares to be sold by such Selling
Stockholder under this Agreement and payment of the purchase price
therefor in accordance with this Agreement, assuming that (a) the
Underwriters have
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purchased such Shares in good faith and without notice of any "adverse
claim" (within the meaning of the Uniform Commercial Code) and (b)
certificates evidencing such Shares have been registered in the name
of the Underwriters or certificates evidencing the same which are
registered in the name of such Selling Stockholder have been delivered
to the Underwriters duly endorsed for transfer (or accompanied by duly
executed stock powers or other forms of assignment in proper form for
transfer), the Underwriters will acquire such shares free and clear of
any security interests, liens, encumbrances or other "adverse claims"
(within the meaning of the Uniform Commercial Code);
(ii) Such Selling Stockholder has full legal right and power
(if such Selling Stockholder is not a corporation or a partnership),
or all requisite corporate or partnership authority (if such Selling
Stockholder is a corporation or partnership) to enter into this
Agreement and the Custody Agreement and the Power of Attorney of such
Selling Stockholder and to sell, assign, transfer and deliver the
Shares to be sold by such Selling Stockholder in the manner provided
herein and therein;
(iii) The Custody Agreement and Power of Attorney of each
Selling Stockholder has been duly authorized, executed and delivered
by such Selling Stockholder and is a valid and binding agreement of
such Selling Stockholder, enforceable in accordance with its terms;
(iv) No consent, approval, authorization or order of, or
qualification with, any Applicable Governmental Authority is required
pursuant to any Applicable Laws for the execution and delivery of this
Agreement or the Custody Agreement and Power of Attorney of such
Selling Stockholder (collectively, the "Selling Stockholder
Agreements") by or on behalf of such Selling Stockholder, the
performance by such Selling Stockholder of its obligations hereunder
or thereunder or the consummation by it of the transactions
contemplated hereby or thereby, except for any such consent, approval,
authorization, order or qualification which (i) has been made or
obtained prior to the Closing Date, (ii) may be required under the
Act, the Exchange Act or any applicable state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters and the clearance of such offering with the
NASD (as to which such counsel need not express an opinion) or (iii)
if not made or obtained, would not reasonably be expected to adversely
affect the performance by such Selling Stockholder of its obligations
under the Selling Stockholder Agreements; and
(v) The execution and delivery of the Selling Stockholder
Agreements on behalf of such Selling Stockholder, the performance by
such Selling Stockholder of its obligations hereunder or thereunder
and the consummation by such Selling Stockholder of the transactions
contemplated hereby or thereby will not (i) result in a breach or
violation of the terms of the Certificate of Incorporation or Bylaws
or the partnership agreement of such Selling Stockholder, if
applicable, (ii) to such counsel's knowledge, result in a breach or
violation of or constitute (either alone or with the passage of time
or both) a default under any agreement or other instrument binding
upon such Selling Stockholder, (iii) result in a
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violation of any Applicable Laws to which such Selling Stockholder or
its properties are subject or any judgment, decree or order of any
Applicable Governmental Authority that specifically names such Selling
Stockholder or is directed at such Selling Stockholder's property
(provided, however, that such counsel need not express an opinion with
respect to compliance with any federal or state securities or
antifraud law, rule or regulation), except for any such breach,
violation or default referred to in clauses (ii) or (iii) above which
would not reasonably be expected to adversely affect the performance
by such Selling Stockholder of its obligations under the Selling
Stockholder Agreements.
For purposes of the foregoing opinions, the definitions of the term
"Applicable Laws" and "Applicable Governmental Authority" shall mean federal
laws and the laws of the jurisdiction of incorporation or formation (as the
case may be) of any Selling Stockholder that is a corporation or a partnership
and the jurisdiction or jurisdictions in which counsel rendering such opinions
is admitted to practice.
The opinion of Xxxxx & Xxxxx, L.L.P. or such other counsel as
described in Section 9(f) and 9(g) above shall be rendered to you at the
request of the Company or the Selling Stockholders, as applicable, and shall so
state therein.
(h) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Xxxxxxx & Xxxxx L.L.P., counsel for the Underwriters, as to
the matters referred to in Sections 9(f)(iv), 9(f)(vi), and 9(f)(ix) (but only
with respect to the statements under the caption "Description of Capital Stock"
and "Underwriting") and the last paragraph of Section 9(f).
In giving such opinions with respect to the matters covered by the
last paragraph of Section 9(f), Xxxxx & Xxxxx, L.L.P. and Xxxxxxx & Xxxxx
L.L.P. may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification except as
specified.
(i) You shall have received, on each of the date hereof and the
Closing Date, a letter 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. and Xxxxx Xxxxxxxx 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 the Registration Statement and the
Prospectus.
(j) The Company shall have delivered to you the agreements specified
in Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(k) The Shares shall have been approved for listing, subject to notice
of issuance, on the AMEX.
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(l) The Company and the Selling Stockholders shall not have failed on
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
or the Selling Stockholders, as the case may be, on or prior to the Closing
Date.
(m) You shall have received on the Closing Date, a certificate of each
Selling Stockholder who is not a U.S. Person (as defined under applicable U.S.
federal tax legislation) to the effect that such Selling Stockholder is not a
U.S. Person, which certificate may be in the form of a properly completed and
executed United States Treasury Department Form W-8 (or other applicable form
or statement specified by Treasury Department regulations in lieu thereof).
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to
the good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
SECTION 10. 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 on or prior to the
Closing Date by you by written notice to the Sellers 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 Shares 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 the Common Stock 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,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) 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 Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or
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Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the total number of Shares to be purchased on such date by all
Underwriters, each non-defaulting Underwriter shall be obligated severally, in
the proportion which the number of Firm Shares set forth opposite its name in
Schedule I bears to the total number of Firm Shares which all the
non-defaulting Underwriters have agreed to purchase, or in such other
proportion as you may specify, to purchase the Firm Shares or Additional
Shares, 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 number of Firm Shares or Additional Shares,
as the case may be, which any Underwriter has agreed to purchase pursuant to
Section 2 hereof be increased pursuant to this Section 11 by an amount in
excess of one-ninth of such number of Firm Shares or Additional Shares, as the
case may be, without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Firm
Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares to
be purchased by all Underwriters and arrangements satisfactory to you, the
Company and the Selling Stockholders for purchase of such Firm Shares are not
made within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter, the Company or the
Selling Stockholders. In any such case which does not result in termination of
this Agreement, either you or the Sellers shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. If, on an Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased on such date, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
such Additional Shares or (ii) purchase not less than the number of Additional
Shares 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 11. Agreements of the Selling Stockholders. Each Selling
Stockholder severally agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes payable in
connection with the transfer of the Shares to be sold by such Selling
Stockholder to the Underwriters.
(b) To do and perform all things to be done and performed by such
Selling Stockholder under this Agreement prior to the Closing Date and to
satisfy all conditions precedent to the delivery of the Shares to be sold by
such Selling Stockholder pursuant to this Agreement.
SECTION 12. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company or to the
Selling Stockholders, to Bayard Drilling Technologies, Inc., 0000 X.X.
Xxxxxxxxxx, Xxxxx 000X, Xxxxxxxx Xxxx, XX 00000, and (ii) if to any Underwriter
or to you, to you c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
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000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, 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, the Selling Stockholders 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 Shares, 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, any person controlling the
Company, any Selling Stockholder or any person controlling such Selling
Stockholder, (ii) acceptance of the Shares and payment for them hereunder and
(iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of any
Seller as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10), the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them in connection with the
proposed offering of the Shares. Notwithstanding any termination of this
Agreement, the Company shall be liable for all expenses which it has agreed to
pay pursuant to Section 5(i) hereof. The Sellers also agree, jointly and
severally, 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)
reasonably incurred by them in connection with enforcing their rights hereunder
(including, without limitation, pursuant to Section 8 hereof).The Underwriters
also agree, jointly and severally, to reimburse the Sellers for any and all fees
and expenses (including, without limitation, the fees disbursements of counsel)
reasonably incurred by them in connection with enforcing their rights hereunder
(including, without limitation, pursuant to Section 8 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 Selling
Stockholders, 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 Shares 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
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
BAYARD DRILLING TECHNOLOGIES, INC.
By:
--------------------------------
Title:
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE II HERETO, ACTING
SEVERALLY
By:
--------------------------------
Attorney-in-fact
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXXX XXXXXX REFSNES, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:
---------------------------
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SCHEDULE I
Number of Firm Shares
Underwriters to be Purchased
------------ ---------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation
Xxxxxx Brothers Inc.
Prudential Securities Incorporated
Xxxxxxxx Xxxxxx Refsnes, Inc.
Xxxxxxx Xxxxx & Associates, Inc.
---------------------
Total 9,200,000
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SCHEDULE II
Selling Stockholders
Number of
Additional
Number of Shares
Firm Shares Subject to
Being Sold Sale
---------- ----------
Name
----
Chesapeake Energy Corporation 3,400,000 794,000
Energy Spectrum Partners LP 772,669 227,331
Xxxxxx-Xxxxxx Partnership, Ltd. 370,881 109,119
Continental Illinois Property Corporation #3 312,000 0
The CIT Group/Equipment Financing, Inc. 150,000 0
Xxxxxx X. Xxxx, Trustee for the Xxxxxx X.
Xxxx Revocable Intervivos Trust dated
4/23/84 77,267 22,733
L.O. Xxxx 1,314 386
Wil-Cas Investments, L.P. 65,348 19,227
A. Xxxx Xxxxxx 193 57
Xxxxxxx Xxxxx 328 97
AnSon Partners Limited Partnership 50,000 38,000
--------- ---------
Total 5,200,000 1,210,950
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ANNEX I
Stockholders Required to Sign Lock-Up Agreements
Chesapeake Energy Corporation
Energy Spectrum Partners XX
XxXxx Partners Limited Partnership
Wil-Cas Investments, X.X.
Xxxxxx Family Trust
RR&T, Inc.
Xxxxxx-Xxxxxx Partnership Ltd.
Xxxx Xxxxxx Energy Equipment Resource, Inc.
Grupo de Hercules, Ltd.
Xxxxxx X. Xxxx Trustee of the
Xxxxxx X. Xxxx Revocable Inter
Vivos Trust dated 4/23/84
Xxxxx X. Xxxxx
Continental Illinois Property Corporation #3
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