SUPERIOR WELL SERVICES, INC. 4,600,000 Shares of Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
4,600,000 Shares of Common Stock
December 6, 2006
KeyBanc Capital Markets, a division of
McDonald Investments Inc.
As Representative of the several Underwriters
XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
McDonald Investments Inc.
As Representative of the several Underwriters
XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Ladies and Gentlemen:
Superior Well Services, Inc., a Delaware corporation (the “Company”), together with the
stockholders of the Company listed in Schedule A hereto (the “Selling Stockholders”),
severally propose, subject to the terms and conditions stated herein, to sell 4,600,000 shares (the
“Firm Securities”) of common stock of the Company, par value $0.01 per share (the “Common Stock”),
to the several underwriters named in Schedule B hereto (the “Underwriters”), for whom you
are acting as Representative (the “Representative”). The Firm Securities consist of 3,000,000
authorized but unissued shares of Common Stock to be issued and sold by the Company and 1,600,000
outstanding shares of Common Stock to be sold by the Selling Stockholders.
In addition, the Company also proposes to grant the Underwriters an option to purchase up to
690,000 additional shares of Common Stock (the “Optional Securities”). The Firm Securities and the
Optional Securities are hereinafter collectively referred to as the “Securities.” The Company and
the Selling Stockholders hereby confirm the agreement with you, acting as the Representative of the
Underwriters.
(a) The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (No. 333-134541) covering the registration of
the Securities under the Securities Act of 1933, as amended (the “Securities Act”), including the
preliminary prospectus relating to the Securities. At the time of the filing of Amendment No. 2 to
the registration statement and at the time the registration statement became effective, the Company
met the requirements for use of Form S-3 under the Securities Act. Such registration statement,
including the exhibits thereto, schedules thereto, if any, and the documents incorporated or deemed
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, at the
time it became effective, is herein called the “Registration
Statement.” Any registration statement filed pursuant to Rule 462(b) of the rules and
regulations of the Commission under the Securities Act (the “Securities Act Regulations”) is herein
referred to as the “Rule 462(b) Registration Statement,” and after such filing the term
“Registration Statement” shall be deemed to include the Rule 462(b) Registration Statement. Any
preliminary prospectus included in such registration statement or filed with the Commission
pursuant to Rule 424(a) of the Securities Act Regulations before a prospectus in final form is
filed with the Commission pursuant to Rule 424(b) of the Securities Act Regulations is herein
called a “Preliminary Prospectus.” The Preliminary Prospectus relating to the Securities that was
included in the Registration Statement immediately prior to the Applicable Time (as defined below)
is herein called the “Time of Sale Prospectus.” The final prospectus, in the form first filed with
the Commission pursuant to Rule 424(b) of the Securities Act Regulations, is herein called the
“Prospectus.” Any “issuer free writing prospectus” (as defined in Rule 433 of the Securities Act
Regulations) is herein called an “Issuer Free Writing Prospectus.” For purposes of this Agreement,
all references to the Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to refer to and include the copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system
(“XXXXX”). For purposes of this Agreement, the “Applicable Time” is 7:00 p.m. (Eastern time) on
the date of this Agreement. As used herein, the terms “Registration Statement,” “Rule 462(b)
Registration Statement,” “Preliminary Prospectus,” “Time of Sale Prospectus” and “Prospectus”
shall include the documents incorporated and deemed to be incorporated by reference therein.
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, the Rule 462(b)
Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all such financial
statements and schedules and other information that is or is deemed to be incorporated by reference
in the Registration Statement, the Rule 462(b) Registration Statement, any Preliminary Prospectus,
the Time of Sale Prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, the Rule 462(b) Registration
Statement, any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus shall be
deemed to mean and include the filing of any document under the Securities Exchange Act of 1934
(the “Exchange Act”) that is incorporated by reference in the Registration Statement, such
Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be.
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission. Each Preliminary Prospectus, at the time of
filing thereof, complied, and any further amendments or supplements thereto will comply, in all
material respects, with the Securities Act and the Securities Act Regulations, and did not contain
an untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading. The representation and warranty set forth in the immediately preceding
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sentence does not apply to statements or omissions made in reliance upon and in conformity
with written information furnished to the Company by an Underwriter expressly for inclusion
therein, which information consists solely of the information in the letter referred to in Section
9(f).
(c) The Time of Sale Prospectus, as supplemented by those Issuer Free Writing Prospectuses and
other documents and information listed in Schedule C hereto, taken together (collectively,
the “Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. Each Issuer Free
Writing Prospectus listed on Schedule C or Schedule D hereto does not conflict with
the information contained in the Registration Statement, the Time of Sale Prospectus or the
Prospectus, and each such Issuer Free Writing Prospectus, as supplemented by and taken together
with the Disclosure Package as of the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The representation
and warranty set forth in the immediately preceding sentence does not apply to statements or
omissions made in reliance upon and in conformity with written information furnished to the Company
by an Underwriter expressly for inclusion therein, which information consists solely of the
information in the letter referred to in Section 9(f).
(d) Each of the Registration Statement and any Rule 462(b) Registration Statement has been
declared effective by the Commission under the Securities Act. The Company has complied to the
Commission’s satisfaction with all requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement is in effect and no proceedings for such purpose have been initiated
or are pending or, to the Company’s knowledge, are contemplated by the Commission.
(e) The Registration Statement complies, and the Prospectus and any further amendments or
supplements thereto will comply, in all material respects, with the Securities Act and the
Securities Act Regulations. The Registration Statement, and any post-effective amendment thereto,
does not and will not contain, as of the applicable effective date, 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. The Prospectus, and any supplements thereto, as of its date
or the date of such supplement and on each Delivery Date, does not and will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
The representations and warranties set forth in the two immediately preceding sentences do not
apply to statements or omissions made in reliance upon and in conformity with written information
furnished to the Company by an Underwriter expressly for inclusion therein, which information
consists solely of the information in the letter referred to in Section 9(f). There are no
contracts or other documents required
3
to be described in the Time of Sale Prospectus or the Prospectus or filed as exhibits to the
Registration Statement that have not been described or filed as required.
(f) The Time of Sale Prospectus was, and the Prospectus delivered to the Underwriters for use
in connection with this offering will be, identical to the versions of the Time of Sale Prospectus
and Prospectus created to be transmitted to the Commission for filing via XXXXX, except to the
extent permitted by Regulation S-T.
(g) At the time of filing the Registration Statement and at the date of this Agreement, the
Company was not and is not an “ineligible issuer” (as defined in Rule 405 of the Securities Act
Regulations).
(h) The documents incorporated by reference or deemed to be incorporated by reference in the
Time of Sale Prospectus and the Prospectus, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder (the “Exchange Act Regulations”), and do not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference or deemed to be incorporated by reference in the
Time of Sale Prospectus or the Prospectus or any supplement thereto, when such documents are filed
with the Commission, will conform in all material respects to the requirements of the Exchange Act
and the Exchange Act Regulations and will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(i) The Company has been duly incorporated and is validly existing and in good standing as a
corporation under the General Corporation Law of the State of Delaware (the “DGCL”), with the
requisite power and authority to own and lease its properties and conduct its business as described
in the Time of Sale Prospectus and the Prospectus. The Company is duly qualified to do business as
a foreign corporation in good standing in all jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except where the failure to be
so qualified would not, individually or in the aggregate, have a material adverse effect on the
financial condition, business, properties, business prospects (other than as a result of an event,
circumstance or condition applicable to the oil and gas or oilfield services industries as a whole)
or results of operations of the Company and the Subsidiaries (as defined below) taken as a whole (a
“Material Adverse Effect”).
(j) The Company does not own or control, directly or indirectly, any corporation, association
or other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s Annual Report
on Form 10-K for the year ended December 31, 2005 (each, a “Subsidiary” and collectively, the
“Subsidiaries”). All of the outstanding limited partner interests or limited liability company
interests, as applicable, of each Subsidiary have been duly authorized and validly issued, are
fully paid (except to the extent required under the respective limited partnership agreements and
limited liability company
4
agreements of the Subsidiaries, as applicable) and nonassessable (except as may be limited by
Section 18-607 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”) and are owned
by the Company, directly or indirectly through subsidiaries, free and clear of all liens,
encumbrances, equities or claims, other than those arising under the respective limited liability
company agreements and limited partnership agreements of the Subsidiaries.
(k) Each Subsidiary has been duly formed or organized, as applicable, and is validly existing
and in good standing as a limited liability company or limited partnership, as applicable, under
the laws of the jurisdiction of its formation or organization, as applicable, with the requisite
power and authority (limited liability company or limited partnership, as applicable) to own and
lease its properties and conduct its business as described in the Time of Sale Prospectus and the
Prospectus. Each Subsidiary is duly qualified to do business as a foreign limited liability
company or limited partnership, as applicable, in good standing in all jurisdictions in which its
ownership or lease of property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not, individually or in the aggregate, have a Material
Adverse Effect.
(l) This Agreement has been duly authorized, executed and delivered by the Company.
(m) The duly authorized, issued and outstanding capitalization of the Company is as set forth
under the caption “Capitalization” in the Time of Sale Prospectus and the Prospectus as of the date
set forth therein; all of the issued and outstanding shares of capital stock of the Company are
duly authorized and validly issued, fully paid and nonassessable, are free of any preemptive
rights, rights of first refusal or similar rights, were issued and sold in compliance with
applicable federal and state securities laws and conform in all material respects to the
description thereof in the Time of Sale Prospectus and the Prospectus; except as described in the
Time of Sale Prospectus and the Prospectus, there are no outstanding options, warrants or other
rights calling for the issuance of, and there are no commitments, plans or arrangements to issue
any shares of capital stock of the Company or any security convertible or exchangeable or
exercisable for capital stock of the Company.
(n) The Common Stock conforms in substance in all material respects to all statements in
relation thereto contained in the Registration Statement, the Time of Sale Prospectus and the
Prospectus; the Securities to be sold by the Company pursuant to this Agreement have been duly
authorized and (i) when issued and delivered pursuant to this Agreement, will be validly issued,
fully paid and nonassessable and (ii) will conform to the description thereof contained in the Time
of Sale Prospectus and the Prospectus. All corporate action required to be taken for the issuance
of the Securities by the Company pursuant to this Agreement has been validly taken. No preemptive
rights of security holders of the Company exist with respect to the issuance and sale of the Common
Stock by the Company pursuant to this Agreement. The certificates for the Common Stock of the
Company are in due and legal form under Delaware law.
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(o) Other than as described in the Time of Sale Prospectus and 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 Securities Act with respect
to any shares of Common Stock or any other securities of the Company owned or to be owned by such
person or to require the Company to include such Common Stock or other securities in the
Registration Statement. To the extent any person has such registration or offer similar rights,
such rights have been waived with respect to the registration of securities in connection with the
Registration Statement, other than the sale of the Securities by the Selling Stockholders in
connection with the transactions contemplated by this Agreement.
(p) No consent, approval, authorization, or order of, or filing or registration with, any
governmental agency or body or any court is required for the consummation of the transactions
contemplated by this Agreement, except such as has been obtained or made under the Securities Act
or the Exchange Act or as may be required by state securities or “blue sky” laws.
(q) The issuance and sale of the Securities and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions contemplated herein will not
conflict with, or result in a breach or violation of any of the terms and provisions of, or
constitute a default under (i) the certificate of incorporation, by-laws, limited partnership
agreement, limited liability company agreement or similar organizational documents of the Company
or any of the Subsidiaries, as applicable, (ii) any indenture, mortgage, deed of trust, lease, loan
agreement or other agreement or instrument to which the Company or any of the Subsidiaries is a
party or by which the Company or any of the Subsidiaries is bound or to which any of the property
or assets of the Company or any of the Subsidiaries is subject, or (iii) any statute, law, order,
rule or regulation of any governmental agency or body or any court applicable to the Company or any
of the Subsidiaries or any of their property, assets or operations, except, with respect to clause
(ii), for such conflicts, breaches, violations or defaults that have been waived or as would not,
individually or in the aggregate, have a Material Adverse Effect.
(r) None of the Company nor any of the Subsidiaries is in violation of its certificate of
incorporation, by-laws, limited partnership agreement, limited liability company agreement or
similar organizational documents, as applicable, or in default (or, with the giving of notice or
lapse of time or both, would be in default) under any indenture, mortgage, deed of trust, lease,
loan agreement or other agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which the Company or any of the Subsidiaries is bound or to which any of the property
or assets of the Company or any of the Subsidiaries is subject, except for such violations or
defaults as would not, individually or in the aggregate, have a Material Adverse Effect.
(s) The Company and the Subsidiaries have good and marketable title in fee simple to all real
property owned by them, and good and marketable title to all other property owned by them, in each
case free from mortgages, pledges, liens, security
6
interests, claims, restrictions, encumbrances and defects of any kind, except as (i) are
described in the Time of Sale Prospectus and the Prospectus or (ii) such would not, individually or
in the aggregate, materially affect the value of such property or materially interfere with the use
made or to be made of such property by them. All of the leases and subleases material to the
business of the Company and the Subsidiaries, and under which the Company or any of its
Subsidiaries holds the properties described in the Time of Sale Prospectus and the Prospectus, are
in full force and effect, and neither the Company nor any Subsidiary has any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of the Company or any of
its Subsidiaries under any such leases or subleases, or affecting or questioning the rights of the
Company or such Subsidiary to the continued possession of the leased or subleased property under
any such lease or sublease.
(t) The Company and the Subsidiaries possess such certificates, permits, licenses, approvals,
consents and other authorizations (collectively, “Governmental Licenses”) issued by appropriate
federal, state or local governmental or regulatory agencies or bodies necessary to conduct the
businesses now operated by them; and the Company and the Subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where the failure to so possess or
comply would not, individually or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and neither the Company nor any of the Subsidiaries have
received any notice of proceedings relating to the revocation or modification of any such
Governmental Licenses that, if determined adversely to the Company or any of the Subsidiaries,
would, individually or in the aggregate, have a Material Adverse Effect.
(u) Except as disclosed in the Time of Sale Prospectus and the Prospectus, there are no legal
or governmental actions, suits, arbitrations or other proceedings pending as to which the Company
or any of the Subsidiaries is a party or of which any property of the Company or any of the
Subsidiaries is the subject that, if determined adversely to the Company or any of the
Subsidiaries, could reasonably be expected to individually or in the aggregate, have a Material
Adverse Effect or could reasonably be expected to materially and adversely affect the ability of
the Company to perform its obligations under this Agreement; and no such actions, suits or
proceedings are threatened or, to the Company’s knowledge, contemplated. No labor dispute with the
employees of the Company or any of the Subsidiaries exists or, to the knowledge of the Company, is
threatened or imminent that could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
(v) The Company and the Subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, “intellectual property rights”)
necessary to conduct the business now operated by them, or presently employed by them, and have not
received any notice of infringement of or conflict with asserted rights of others with respect to
any intellectual
7
property rights that, if determined adversely to the Company or any of the Subsidiaries, could
reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
(w) Except as would not, individually or in the aggregate, have a Material Adverse Effect, (i)
neither the Company nor any of the Subsidiaries is in violation of any federal, state or local
statute, rule, regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, of any governmental agency or body or any court relating to the pollution or
protection of human health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface, or subsurface strata) or wildlife, including, without limitation,
laws and regulations relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products
(collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials (collectively,
“Environmental Laws”) and (ii) the Company and its Subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in compliance with
their requirements. There are no pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its Subsidiaries. To the knowledge of the Company, there are no
events or circumstances that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any private party or governmental body
or agency, against or affecting the Company or any of its Subsidiaries relating to any Hazardous
Materials or the violation of any Environmental Laws that would, individually or in the aggregate,
have a Material Adverse Effect.
(x) The Company and the Subsidiaries have (i) filed on a timely basis all necessary federal,
state, local and foreign income and franchise tax returns required to be filed or have duly
requested extensions thereof; and (ii) paid all taxes shown as due on such tax returns (including
any related assessments, fines or penalties), except for taxes being contested in good faith for
which reserves in accordance with generally accepted accounting principles have been provided. No
tax deficiency has been asserted against the Company or any of the Subsidiaries which has had, nor
does the Company know of any tax deficiency that is likely to be asserted against the Company or
any of the Subsidiaries which, if determined adversely to the Company or any of the Subsidiaries,
would have, a Material Adverse Effect.
(y) The Company and each of the Subsidiaries maintain insurance of the types and in the
amounts generally deemed adequate for their respective businesses and, to the Company’s knowledge,
consistent with insurance coverage maintained by similar companies in similar businesses.
(z) The Company and each of the Subsidiaries are in compliance in all respects with all
applicable provisions of the Occupational Safety and Health Act of
8
1970, as amended, including all applicable regulations thereunder, except for such
noncompliance as would not, individually or in the aggregate, have a Material Adverse Effect.
(aa) Except as described in the Time of Sale Prospectus and the Prospectus, none of the
Subsidiaries is currently restricted, directly or indirectly, from (i) paying any dividends or
distributions to the Company, (ii) repaying to the Company any loans or advances to such Subsidiary
from the Company or (iii) transferring any property or assets to the Company or any other
Subsidiary of the Company.
(bb) The consolidated financial statements of the Company (including its predecessors)
included in the Registration Statement, the Time of Sale Prospectus and the Prospectus, together
with the related schedules and notes, fairly present in all material respects the financial
condition of the Company and the Subsidiaries as of the respective dates indicated and the
consolidated statements of income of the Company, cash flows and changes in stockholders’ equity
for the respective periods specified, in each case in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved (except as otherwise
indicated in the notes thereto) and in accordance with Regulation S-X promulgated by the
Commission. No other financial statements or supporting schedules are required to be included in
the Registration Statement. The summary and selected consolidated financial data of the Company
(including its predecessors) included in the Registration Statement, the Time of Sale Prospectus
and the Prospectus fairly present in all material respects the information shown therein and have
been compiled on a basis consistent with that of the consolidated financial statements of the
Company included in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
The other financial information included in the Registration Statement, the Time of Sale Prospectus
and the Prospectus has been derived from the accounting records of the Company and the Subsidiaries
and present fairly, in all material respects, the information shown thereby. The Registration
Statement, the Time of Sale Prospectus, the Disclosure Package and the Prospectus include all
financial and other information required to be included in connection with the presentation of
“non-GAAP financial measures” (as defined in Item 10 of Regulation S-K) therein, and the
presentation of such non-GAAP financial measures therein complies with Regulation G and Item 10 of
Regulation S-K, as applicable. The Company and the Subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not
disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(cc) Neither the Company nor any of the Subsidiaries has sustained since the date of the last
audited financial statements included in the Registration Statement, the Time of Sale Prospectus
and the Prospectus any loss or interference with its business material to the Company and the
Subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Time of Sale
Prospectus and the Prospectus. Since the respective dates as of which information is given in the
Registration Statement, the Time of Sale Prospectus and the Prospectus, there has not been any (i)
material change in the capitalization of the Company or the Subsidiaries, (ii) material increase in
the aggregate in the consolidated short-term or long-term debt of the
9
Company, (iii) any transaction that is material to the Company and the Subsidiaries
contemplated or entered into by the Company or any of the Subsidiaries, (iv) any obligation,
contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is
material to the Company and its Subsidiaries taken as a whole or (v) any dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital stock, in each case
otherwise than as set forth or contemplated in the Registration Statement, the Time of Sale
Prospectus and the Prospectus.
(dd) Xxxxxxxxx Xxxxx & Co., Inc., as of December 31, 2005 and during the periods covered by
the consolidated financial statements of the Company (including its predecessors) and the related
schedules and notes thereto included in the Registration Statement, the Time of Sale Prospectus and
the Prospectus on which they reported were, as of such dates and during such periods, and are
independent registered public accountants as required by the Securities Act and the Securities Act
Regulations. Xxxxxxxxx Xxxxx & Co., Inc. is registered with the Public Company Accounting
Oversight Board.
(ee) Each of the Company and the Subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific authorization, (ii) transactions are recorded as
necessary to permit preparation of financial statements in accordance with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to its 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.
(ff) The Company maintains a system of internal control over financial reporting (as defined
in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act
and has been designed by the Company’s principal executive officer and principal financial officer,
or under their supervision, to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with
generally accepted accounting principles. As of the date hereof, the Company is not aware of (i)
any “significant deficiency” or “material weakness” (in each case, as defined in Public Company
Oversight Board Standard No. 2) in the Company’s internal control over reporting, whether or not
subsequently remediated, except as described in the Time of Sale Prospectus and the Prospectus, or
(ii) any fraud, whether or not material, that involves management or other employees who have a
significant role in the Company’s internal control over financial reporting.
(gg) The Company maintains disclosure controls and procedures (as defined in Rule 13a-15(e)
under the Exchange Act) that comply with the requirements of the Exchange Act, which controls and
procedures (i) are designed to ensure that material information relating to the Company, including
its consolidated subsidiaries, is made known to the Company’s principal executive officer and its
principal financial officer by others within those entities, particularly during the periods in
which the periodic reports
10
required under the Exchange Act are being prepared and (ii) are effective in all material
respects to perform the functions for which they were established.
(hh) Neither the Company or any Subsidiary, nor any of their respective directors, manager, or
partners, as applicable, or officers, in their capacities as such, is in material breach or
violation of any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith.
(ii) The statistical and market-related data included in the Registration Statement, the Time
of Sale Prospectus and the Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate or represent the Company’s good faith estimates that are made
on the basis of data derived from such sources.
(jj) The Common Stock has been registered under Section 12(g) of the Exchange Act, and the
Securities have been authorized for trading on the Nasdaq Global Select Market (the “Nasdaq”).
(kk) Neither the Company, the Subsidiaries nor any of their respective officers or directors
has taken or will take, directly or indirectly, any action designed to cause or result in, or which
has constituted or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the Securities in order to facilitate the sale or resale of the
Securities or otherwise.
(ll) The Company is not, and after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in the Time of Sale Prospectus and the
Prospectus will not be, required to register as an “investment company” as such term is defined
under the Investment Company Act of 1940, as amended (the “Investment Company Act”).
Each Selling Stockholder, severally and not jointly, represents and warrants to, and agrees
with, the several Underwriters as follows:
(a) As of the First Delivery Date, such Selling Stockholder will be the record and beneficial
owner of the Securities to be sold by such Selling Stockholder under this Agreement, free and clear
of all adverse claims, except for those arising under this Agreement; and upon delivery of and
payment for such Securities hereunder in accordance with the provisions of Section 3(d) hereof, the
several Underwriters will acquire a security entitlement (as that term is defined in the Uniform
Commercial Code as in effect in the State of New York (the “New York UCC”) with respect to the
Securities, and no action based on an adverse claim (as that term is defined under the New York
UCC) to the Securities may be asserted against any of the Underwriters, provided that each such
Underwriter does not have notice of any adverse claim (within the meaning of Section 8-105 of the
New York UCC). Such Selling Stockholder is selling the Securities to be sold by such Selling
Stockholder for such Selling Stockholder’s own account and is not selling such Securities, directly
or indirectly, for the benefit of the Company, and no part of the proceeds of such sale received by
such
11
Selling Stockholder will inure, either directly or indirectly, to the benefit of the Company
other than as described in the Registration Statement, the Time of Sale Prospectus and the
Prospectus.
(b) Such Selling Stockholder has duly authorized, executed and delivered a Custody Agreement
(“Custody Agreement”), which Custody Agreement is a valid and binding obligation of such Selling
Stockholder, to the Company, as Custodian (the “Custodian”); pursuant to the Custody Agreement the
Selling Stockholder will, on or prior to the First Delivery Date, place in custody with the
Custodian, for delivery under this Agreement, the certificates representing the Securities to be
sold by such Selling Stockholder; as of the First Delivery Date, such certificates will represent
validly issued, outstanding, fully paid and nonassessable shares of Common Stock; and, as of the
First Delivery Date, such certificates will be duly and properly endorsed in blank for transfer, or
will be accompanied by all documents duly and properly executed that are necessary to validate the
transfer of title thereto, to the Underwriters, free of any legend, restriction on transferability,
proxy, lien or claim, whatsoever.
(c) Such Selling Stockholder has the power and authority to enter into this Agreement and to
sell, transfer and deliver the Securities to be sold by such Selling Stockholder pursuant to this
Agreement; and such Selling Stockholder has duly authorized, executed and delivered to Xxxxxx X.
Xxxxxx, Xxxxx X. Xxxxxxx and Xxxx X. Xxxxxx, each as attorney-in-fact (the “Attorneys-in-Fact”), an
irrevocable power of attorney (a “Power of Attorney”) authorizing and directing the
Attorneys-in-Fact to effect the sale and delivery of the Securities being sold by such Selling
Stockholder, to enter into this Agreement and to take all such other action as may be necessary
hereunder.
(d) This Agreement, the Custody Agreement and the Power of Attorney have each been duly
authorized, executed and delivered by or on behalf of such Selling Stockholder. The execution and
delivery of this Agreement, the Custody Agreement and the Power of Attorney and the performance of
the terms hereof and thereof and the consummation of the transactions herein and therein
contemplated will not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound, or any law, regulation, order or decree
applicable to such Selling Stockholder. No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Custody Agreement and the Power of Attorney or for the
consummation of the transactions contemplated hereby and thereby, including the sale of the
Securities being sold by such Selling Stockholder, except such as has been obtained or made under
the Securities Act or the Exchange Act or as may be required by state securities or “blue sky”
laws.
(e) Such Selling Stockholder has not distributed and will not distribute any prospectus or
other offering material in connection with the offering and sale of the Securities other than any
Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus or other materials permitted
by the Securities Act to be distributed by such Selling Stockholder.
12
(f) The Disclosure Package, as of the Applicable Time, and the Registration Statement, any
Preliminary Prospectus and the Time of Sale Prospectus did not include, and the Prospectus and any
further amendments or supplements to the Registration Statement and the Prospectus, when they
become effective or are filed with the Commission, as the case may be, will not include, any untrue
statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
The representation and warranty set forth in the immediately preceding sentence only applies to
statements or omissions made in reliance upon and in conformity with written information about such
Selling Stockholder furnished to the Company by such Selling Stockholder expressly for use therein,
which information consists solely of the information set forth with respect to such Selling
Stockholder in the Time of Sale Prospectus and the Prospectus in the table under the caption
“Selling Stockholders.”
(g) Other than as contemplated by this Agreement and except as disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, there is no broker, finder or other
party that is entitled to receive from such Selling Stockholder any brokerage or finder’s fee or
any other fee, commission or payment as a result of the transactions contemplated by this
Agreement.
(h) Such Selling Stockholder has not taken and will not take, directly or indirectly, any
action designed to cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of the Securities in order
to facilitate the sale or resale of the Securities or otherwise.
(a) On the basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, (i) the Company agrees to issue and sell
3,000,000 Firm Securities, and each Selling Stockholder agrees, severally and not jointly, to sell
the number of Firm Securities set forth opposite the name of such Selling Stockholder in
Schedule A hereto, to the several Underwriters, and each Underwriter agrees, severally and
not jointly, to purchase from the Company and the Selling Stockholders the respective number of
Firm Securities set forth opposite the Underwriter’s name in Schedule B hereto, at a
purchase price per share of $24.225, and (ii) in the event and to the extent that the Underwriters
shall exercise their option to purchase Optional Securities as provided in Section 3(b) below, the
Company agrees to issue and sell up to 690,000 Optional Securities. The number of Optional
Securities to be purchased by each Underwriter shall be the same percentage of the total number of
Optional Securities to be purchased by the several Underwriters as the number of Firm Securities to
be purchased by such Underwriter is of the total number of Firm Securities to be purchased by the
several Underwriters, as adjusted by the Representative in such manner as the Representative deem
advisable to avoid fractional shares. The purchase price per share of the Optional Securities
shall be the same as that of the Firm Securities.
(b) The Company hereby grants to the Underwriters the right to purchase, at their election the
number of Optional Securities indicated with respect to the
13
Company in Section 3(a) above, at a purchase price per share equal to the purchase price per
share of the Firm Securities, for the sole purpose of covering any over-allotments in connection
with the sale and distribution of the Firm Securities. Any such election to purchase Optional
Securities may be exercised only by written notice from the Representative to the Company, given
within a period of 30 calendar days after the date of this Agreement and setting forth the
aggregate number of Optional Securities to be purchased and the date on which such Optional
Securities are to be delivered, as determined by the Representative but in no event earlier than
the First Delivery Date (as defined below) or, unless the Representative and the Company otherwise
agree in writing, no earlier than two or later than ten business days after the date of such
notice.
(c) The several Underwriters propose to offer the Securities for sale upon the terms and
conditions and in the manner set forth in the Prospectus.
(d) The Securities to be purchased by each Underwriter hereunder, in definitive form, and in
such authorized denominations and registered in such names as the Representative may request upon
at least forty-eight hours’ prior notice to the Company and the Custodian, shall be delivered by or
on behalf of the Company and the Custodian to the Underwriters, through the facilities of the
Depository Trust Company (“DTC”), for the accounts of such Underwriters, against payment by or on
behalf of the Underwriter of the purchase price therefor by wire transfer of federal (same-day)
funds to the account specified by the Company and the Custodian to McDonald Investments Inc. at
least forty-eight hours in advance. The Company and the Custodian will cause the certificates
representing the Securities to be made available for checking and packaging at least twenty-four
hours prior to the Delivery Date (as defined below) with respect thereto at a location in New York,
New York as may be designated by you or at the office of DTC or its designated custodian. The date
of such delivery and payment shall be, with respect to the Firm Securities, December 12, 2006 or
such other time and date as the Representative, the Company and the Custodian may agree upon in
writing, and, with respect to the Optional Securities, on the date specified by the Representative
in the written notice given by the Representative of its election to purchase such Optional
Securities, or such date as the Representative, the Company and the Custodian may agree upon in
writing. Such date for delivery of the Common Stock is herein called the “First Delivery Date,”
such date for delivery of the Optional Securities, if not the First Delivery Date, is herein called
an “Optional Delivery Date,” and each such time and date for delivery is herein called a “Delivery
Date.”
(e) Time shall be of the essence, and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligations of the Underwriters hereunder.
(a) To furnish such information as may be required and otherwise to cooperate in qualifying
the Securities for offering and sale under the securities or blue sky laws of such jurisdictions
(both domestic and foreign) as the Representative may
14
designate and to maintain such qualifications in effect as long as requested by the
Representative for the distribution of the Securities, provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the service of process under the laws
of any such state (except service of process with respect to the offering and sale of the
Securities).
(b) If, after the time this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement to be declared effective before the offering
of the Securities may commence, the Company will endeavor to cause such post-effective amendment to
become effective as soon as possible and will advise the Representative promptly and, if requested
by the Representative, will confirm such advice in writing, when such post-effective amendment has
become effective.
(c) To prepare the Prospectus in a form approved by the Representative and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act Regulations not later than the
Commission’s close of business on the second business day following the execution and delivery of
this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under
the Securities Act Regulations; during the period beginning on the date hereof and ending on the
date, which in the opinion of counsel for the Underwriters, a prospectus is no longer required by
law to be delivered in connection with the offering and sales of the Securities, to make no further
amendment or any supplement to the Registration Statement or Prospectus (including any amendment or
supplement through incorporation of any report filed under the Exchange Act) which shall be
disapproved by the Representative promptly after reasonable notice thereof; to advise the
Representative, promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish the Representative with copies thereof; to
file promptly, and in any event within the time periods specified, all reports and any definitive
proxy or information statements required to be filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus for so long as the
delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the
Securities Act Regulations) is required in connection with the offering or sale of the Securities;
to advise the Representative, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or any other prospectus in respect of the Securities, of the
suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus or other
prospectus or suspending any such qualification, promptly to use its reasonable best efforts to
obtain the withdrawal of such order.
15
(d) No later than 12:00 p.m., New York City time, on the second business day succeeding
the date of this Agreement, and from time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in such quantities as the Representative may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Securities Act Regulations) is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with the offering or sale of
the Securities and if at such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Securities Act Regulations) is delivered, not misleading, or,
if for any other reason it shall be necessary during such period to amend or supplement the
Prospectus in order to comply with the Securities Act, to notify the Representative and upon its
request to prepare and furnish without charge to each Underwriter and to any dealer in securities
as many written and electronic copies as the Representative may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any Underwriter is required by law,
rule or regulation to deliver a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Securities Act Regulations) in connection with sales of any of the Securities at
any time nine months or more after the time of issue of the Prospectus, upon the request of the
Representative but at the expense of such Underwriter, to prepare and deliver to such Underwriter
as many written and electronic copies as the Representative may reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(e) To make generally available to its securityholders via XXXXX within the required time
periods after the effective date of the Registration Statement (as the term “effective date” is
defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and its
consolidated subsidiaries (which need not be audited) complying with the provisions of Section
11(a) of the Securities Act and the Securities Act Regulations (including, at the option of the
Company, Rule 158 under the Securities Act).
(f) During the period beginning from the date hereof and continuing to and including the date
90 days after the date of the Prospectus, except as provided hereunder, not to, directly or
indirectly, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result in the disposition of)
any shares of Common Stock or any securities that are substantially similar to the Common Stock or
securities convertible into or exchangeable for Common Stock or any securities that are
substantially similar to the Common Stock, or sell or grant options, rights or warrants with
respect to any shares of Common Stock or any securities that are substantially similar to Common
Stock or securities convertible into or exchangeable for Common Stock or any securities that are
substantially similar to Common Stock, or publicly announce the intention to do any of the
foregoing (other than pursuant to employee option plans existing on the date of this
16
Agreement), without the prior written consent of McDonald Investments Inc., provided, however,
that, notwithstanding the foregoing, if (i) during the last 17 days of the 90-day restricted
period, the Company issues an earnings release or material news or a material event relating to the
Company occurs or (ii) prior to the expiration of the 90-day restricted period, the Company
announces that it will release earnings results during the 16-day period beginning on the last day
of the 90-day restricted period, the restrictions imposed in this Section 4(f) shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the earnings release
or the occurrence of the material news or material event, except that such extension will not apply
if, within three business days prior to the 15th calendar day before the last day of the 90-day
restricted period, (A) the Company delivers a certificate, signed by the Chief Financial Officer or
Chief Executive Officer of the Company, certifying on behalf of the Company that (1) the shares of
Common Stock are “actively traded securities” (as defined in Regulation M), (2) the Company meets
the applicable requirements of paragraph (a)(1) of Rule 139 under the Securities Act Regulations in
the manner contemplated by NASD Conduct Rule 2711(f)(4) and (3) the provisions of NASD Conduct Rule
2711(f)(4) are not applicable to any research reports relating to the Company published or
distributed by any of the Underwriters during the 15 days before or after the last day of the
90-day restricted period (before giving effect to such extension) and (B) McDonald Investments Inc.
concurs, in its reasonable judgment, with such certifications. The foregoing sentence shall not
prohibit the issuance of any shares of Common Stock issued or options to purchase Common Stock or
other Common Stock-based awards, in each case granted pursuant to any equity compensation plan or
agreement referred to in the Prospectus.
(g) During a period of two years from the effective date of the Registration Statement, to
deliver or to make available via XXXXX to the Representative promptly after they become available,
copies of any reports and financial statements furnished by the Company to its stockholders or
filed with the Commission, the NASD or any national securities exchange on which the Common Stock
is listed.
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Time of Sale Prospectus under the caption “Use of
Proceeds.”
(i) To use its best efforts to list, subject to official notice of issuance, the Securities on
the Nasdaq prior to the First Delivery Date and to maintain such listing and to file with the
Nasdaq all documents and notices required in connection therewith.
(j) To engage and maintain, at its expense, a registrar and transfer agent for the Securities.
(k) Not to, and to use its best efforts to cause its officers, directors and affiliates not
to, (i) take, directly or indirectly prior to termination of the underwriting syndicate
contemplated by this Agreement, any action designed to stabilize or manipulate the price of any
security of the Company, or which may cause or result in, or which might in the future reasonably
be expected to cause or result in, the stabilization or manipulation of the price of any security
of the Company, to facilitate the sale or resale
17
of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for
soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for
soliciting any order to purchase any other securities of the Company.
(l) To cause each person listed on Schedule F hereto to furnish to the Representative,
prior to the First Delivery Date, a letter or letters, substantially in the form of Schedule
E hereto, pursuant to which each such person shall agree not to, except as provided by this
Agreement, directly or indirectly (1) offer for sale, sell, pledge or otherwise dispose of (or
enter into any transaction or device which is designed to, or could be expected to, result in the
disposition by any person at any time in the future of) any shares of Common Stock or securities
convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of such shares of Common Stock, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or other securities, in cash or
otherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior
written consent of the Representative on behalf of the Underwriters. Notwithstanding the
foregoing, each person listed on Schedule F hereto shall be entitled to transfer and assign
shares of Common Stock (i) in the case of any such person that is a corporation, partnership,
limited liability company or other entity (an “Entity”), to any other Entity that controls, is
controlled by or is under common control with such Entity or to any equity holder of such Entity
and (ii) in the case of any such person that is an individual, to a trust or limited partnership
for the benefit of such person’s spouse or members of such person’s immediate family; provided
that, in each case, such transferee or assignee of shares of Common Stock shall furnish to the
Representative a letter substantially in the form of Schedule E hereto prior to any such
transfer.
(m) To comply with all of the provisions of any undertakings in the Registration Statement.
(n) If the Company elects to rely upon Rule 462(b) under the Securities Act Regulations, the
Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall
at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Securities Act Regulations.
Each Selling Stockholder, severally and not jointly, covenants and agrees with each of the
Underwriters as follows:
(a) Such Selling Stockholder will pay all taxes, if any, on the transfer and sale,
respectively, of the Securities being sold by such Selling Stockholder and the fees of such Selling
Stockholder’s counsel.
18
(b) The Securities to be sold by such Selling Stockholder, represented by the certificates to
be deposited with the Custodian pursuant to the Custody Agreement of such Selling Stockholder, will
be subject to the interest of the several Underwriters and the other Selling Stockholders; the
arrangements made for such custody are, except as specifically provided in the Custody Agreement,
irrevocable; and the obligations of such Selling Stockholder hereunder shall not be terminated,
except as provided in this Agreement or in the Custody Agreement, by any act of such Selling
Stockholder, by operation of law, whether by the liquidation, dissolution or merger of such Selling
Stockholder, by the death of such Selling Stockholder, or by the occurrence of any other event. If
any Selling Stockholder should liquidate, dissolve or be a party to a merger or if any other such
event should occur before the delivery of the Securities hereunder, certificates for the Securities
deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such liquidation, dissolution, merger or other event had not
occurred, whether or not the Custodian shall have received notice thereof.
(c) During the period beginning from the date hereof and continuing to and including the date
90 days after the date of the Prospectus, except as provided in this Agreement, such Selling
Stockholder will not, directly or indirectly, offer, sell, contract to sell, pledge or otherwise
dispose of (or enter into any transaction or device which is designed to, or could be expected to,
result in the disposition of) any shares of Common Stock or any securities that are substantially
similar to the Common Stock or securities convertible into or exchangeable for Common Stock or any
securities that are substantially similar to the Common Stock, or sell or grant options, rights or
warrants with respect to any shares of Common Stock or any securities that are substantially
similar to Common Stock or securities convertible into or exchangeable for Common Stock or any
securities that are substantially similar to Common Stock, or publicly announce the intention to do
any of the foregoing, without the prior written consent of McDonald Investments Inc., provided,
however, that, notwithstanding the foregoing, if (i) during the last 17 days of the 90-day
restricted period, the Company issues an earnings release or material news or a material event
relating to the Company occurs or (ii) prior to the expiration of the 90-day restricted period, the
Company announces that it will release earnings results during the 16-day period beginning on the
last day of the 90-day period, the restrictions imposed in this Section 5(c) shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the earnings release
or the occurrence of the material news or material event, except that such extension will not apply
if, within three business days prior to the 15th calendar day before the last day of the 90-day
restricted period, (A) the Company delivers a certificate, signed by the Chief Financial Officer or
Chief Executive Officer of the Company, certifying on behalf of the Company that (1) the shares of
Common Stock are “actively traded securities” (as defined in Regulation M), (2) the Company meets
the applicable requirements of paragraph (a)(1) of Rule 139 under the Securities Act in the manner
contemplated by NASD Conduct Rule 2711(f)(4) and (3) the provisions of NASD Conduct Rule 2711(f)(4)
are not applicable to any research reports relating to the Company published or distributed by any
of the Underwriters during the 15 days before or after the last day of the 90-day restricted period
(before giving effect to such extension) and (B) McDonald Investments Inc. concurs, in its
reasonable judgment, with such certifications.
19
(d) Such Selling Stockholder will not, without the prior written consent of McDonald
Investments Inc., within 90 days after the date of the Prospectus, make any demand for or exercise
any right with respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
(e) Such Selling Stockholder has not taken and will not take, directly or indirectly, any
action designed to or which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale of the
Securities, and has not effected any sales of Common Stock which, if effected by the Company, would
be required to be disclosed in response to Item 701 of Regulation S-K.
(f) Such Selling Stockholder shall immediately notify you if such Selling Stockholder has
knowledge of any event that occurs, or of any change in information relating to such Selling
Stockholder, which results in the Prospectus (as supplemented) including an untrue statement of a
material fact or omitting to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(a) Each of the Company and the Selling Stockholders represents and agrees that, without the
prior consent of the Representative, it has not made and will not make any offer relating to the
Securities that would constitute a “free writing prospectus” (as defined in Rule 405 under the
Securities Act Regulations). Each Underwriter represents and agrees that, without the prior
consent of the Company and the Representative, it has not made and will not make any offer relating
to the Securities that would constitute a free writing prospectus. Any such free writing
prospectus the use of which has been consented to by the Company and the Representative is listed
on Schedule C or Schedule D hereto.
(b) The Company has complied and will comply with the requirements of Rule 433 under the
Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely
filing with the Commission or retention where required and legending.
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Time of Sale Prospectus or
the Prospectus or would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
then prevailing, not misleading, the Company will give prompt notice thereof to the Representative
and, if requested by the Representative, will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict,
statement or omission. The representation and warranty set forth in the immediately preceding
20
sentence does not apply to statements or omissions made in reliance upon and in conformity
with written information furnished to the Company by an Underwriter expressly for inclusion
therein, which information consists solely of the information in the letter referred to in Section
9(f).
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within
the applicable time period prescribed for such filing by the Securities Act Regulations and in
accordance with Section 4(c) hereof; all material required to be filed by the Company pursuant to
Rule 433(d) under the Securities Act Regulations shall have been filed with the Commission within
the applicable time period prescribed for such filing by Rule 433; if the Company has elected to
rely upon Rule 462(b) under the Securities Act Regulations, the Rule 462(b) Registration Statement
shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceedings for that purpose shall have been initiated or threatened by the
Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free
Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose
shall have been initiated or
21
threatened by the Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters shall not have discovered and disclosed to the Company prior to or on
such Delivery Date that the Registration Statement, any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the Prospectus or any amendment or supplement thereto contains any untrue
statement of fact that, in the opinion of counsel for the Underwriters, is material or omits to
state a fact that is material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(c) Xxxxxx & Xxxxxx LLP, counsel for the Company, shall have furnished to the Representative
their written opinion, dated such Delivery Date, in form and substance satisfactory to the
Representative, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing as a
corporation under the laws of the State of Delaware, with the requisite power and authority to own
and lease its properties and conduct its business as described in the Time of Sale Prospectus and
the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good
standing in each jurisdiction and as of the dates listed on Exhibit A attached to such opinion.
(ii) Each Subsidiary of the Company has been duly formed or organized, as applicable, and is
validly existing and in good standing as a limited liability company or limited partnership, as
applicable, under the laws of the jurisdiction of its formation or organization, as applicable,
with the requisite power and authority (limited liability company or limited partnership, as
applicable) to own and lease its properties and conduct its business as described in the Time of
Sale Prospectus and the Prospectus; and each Subsidiary is duly qualified to do business as a
foreign limited liability company or limited partnership, as applicable, in good standing in each
jurisdiction and as of the dates listed on Exhibit B attached to such opinion.
(iii) The Company’s authorized, issued and outstanding shares of Common Stock are as described
in the Time of Sale Prospectus and the Prospectus in the first paragraph under the caption
“Description of Capital Stock.” Except as described in the Time of Sale Prospectus and the
Prospectus, there are no outstanding options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligation into or exchange any Common Stock
or other ownership interests in the Company or any security convertible or exchangeable or
exercisable for Common Stock or other ownership interests in the Company. All of the outstanding
limited partner interests or limited liability company interests, as applicable, of each Subsidiary
have been duly authorized and validly issued, are fully paid (except to the extent required under
the respective limited liability company agreements and limited partnership agreements of the
Subsidiaries, as applicable) and nonassessable (except as may be limited by Section 18-706 of the
Delaware LLC Act) and are owned by the Company, directly or indirectly through Subsidiaries, to
such counsel’s knowledge, free and clear of
22
all liens, encumbrances, equities or claims, other than those arising under the respective
limited liability company agreements and limited partnership agreements of the Subsidiaries, and
are free of any preemptive rights or similar rights.
(iv) Each of the Selling Stockholders is the sole record owner of the Securities to be sold by
such Selling Stockholder pursuant to this Agreement.
(v) Upon (i) payment for the Securities to be sold by each Selling Stockholder pursuant to
this Agreement, (ii) physical delivery of the certificates representing the Securities to the
American Stock Transfer & Trust Company in its capacity as the Company’s transfer agent (the
“Transfer Agent”), and registration of the Securities in the name of The Depository Trust Company
(“DTC”) or its nominee upon registration of the transfer by the Transfer Agent acting on behalf of
the Company, on the Company’s share registry, and (iii) appropriate crediting on the books of DTC
to the securities account of the Underwriters in accordance with the New York UCC, (A) DTC will be
a “protected purchaser” of such Securities within the meaning of Section 8-303 of the New York UCC
(assuming that DTC does not have notice of any adverse claim to such securities), (B) under Section
8-501 of the New York UCC, the Underwriters will acquire a valid security entitlement of such
security entitlements and (C) no action based on any “adverse claim” (within the meaning of Section
8-102(a)(l) of the New York UCC) to such Securities may be asserted against the Underwriters with
respect to such securities entitlements (assuming that the Underwriters acquire such security
entitlement without notice of any adverse claims).
(vi) The Custody Agreement and the Power of Attorney are valid and binding agreements of the
Selling Stockholders, enforceable in accordance with their respective terms (except as rights to
indemnity hereunder or thereunder may be limited by federal or state securities laws and except as
such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors’ rights generally and subject to general principles of equity).
(vii) This Agreement has been duly authorized, executed and delivered by the Company.
(viii) The Securities have been duly authorized by the Company and, when issued and delivered
against payment therefor in accordance with this Agreement, will be validly issued, fully paid and
nonassessable and free and clear of all liens, encumbrances, equities or claims. The issuance and
sale of the Securities will not be subject to any preemptive or similar rights and the Securities
will conform in all material respects to the description thereof in the Time of Sale Prospectus and
the Prospectus under the caption “Description of Capital Stock.”
(ix) The Registration Statement has been declared effective by the Commission under the
Securities Act; to the knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no proceedings for such purpose
have been initiated or are pending or are contemplated or threatened by the Commission; and the
Registration Statement and
23
the Prospectus and each amendment or supplement to the Registration Statement and the
Prospectus (other than the financial statements, including the notes and schedules thereto and the
auditors’ reports thereon, included therein or omitted therefrom, as to which such counsel need
express no opinion) comply as to form in all material respects with the applicable requirements of
the Securities Act and the Securities Act Regulations.
(x) To such counsel’s knowledge, other than as 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 Securities Act with respect
to any shares of Common Stock or any other securities of the Company owned or to be owned by such
person or to require the Company to include such Common Stock or other securities in the
Registration Statement, and to the extent any person has such registration or other similar rights,
such rights have been waived with respect to registration of securities in connection with the
Registration Statement, other than the sale of the Securities by the Selling Stockholders in
connection with the transactions contemplated by this Agreement.
(xi) To such counsel’s knowledge, there are no contracts or documents of a character which are
required to be filed as exhibits to the Registration Statement or required to be described or
summarized in the Time of Sale Prospectus and the Prospectus which have not been so filed,
summarized or described, and all such summaries and descriptions fairly and accurately set forth
the material provisions of such contracts and documents.
(xii) No consent, approval, authorization, or order of, or filing or registration under the
DGCL, the Delaware LLC Act or federal law is required for the consummation of the transactions
contemplated by this Agreement, except such as has been obtained or made under the Securities Act
or the Exchange Act or as may be required by state securities or “blue sky” laws.
(xiii) The issuance and sale of the Securities and the compliance by the Company with all of
the provisions of this Agreement and the consummation of the transactions contemplated herein will
not constitute a breach or violation of any of the terms and provisions of, or constitute a default
under (A) the certificate of incorporation, by-laws, limited partnership agreement, limited
liability company agreement or similar organizational documents of the Company or any of the
Subsidiaries, as applicable, (B) any indenture, mortgage, deed of trust, lease, loan agreement or
other agreement or instrument which is listed on Exhibit C to such opinion, or (C) the DGCL, the
Delaware LLC Act or federal law.
(xiv) To such counsel’s knowledge, there are no actions, suits, proceedings, inquiries or
investigations pending or threatened against the Company or any of the Subsidiaries or any of their
respective officers and directors or to which the properties, assets or rights of any such entity
are subject that are required to be described in the Time of Sale Prospectus and the Prospectus but
are not so described.
24
(xv) The Company is not, and after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in the Prospectus will not be, required to
register as an “investment company” as such term is defined under the Investment Company Act.
(xvi) The statements contained in (i) the Time of Sale Prospectus and the Prospectus under the
captions, “Business—Environmental Regulation,” “Description of Capital Stock,” and “Shares
Eligible For Future Sale” and (ii) in Item 15 of the Registration Statement, insofar as such
statements purport to summarize legal matters or provisions of the documents referred to therein,
present accurate and fair summaries of such legal matters and provisions.
Such counsel shall state that, although such counsel has not independently verified, is not
passing upon, and does not assume any responsibility for, the accuracy or completeness (except as
and to the extent set forth in paragraph (xvi) above) of the information contained in the
Registration Statement, the Disclosure Package and the Prospectus, they have participated in the
preparation of the Registration Statement, the Disclosure Package and the Prospectus; from time to
time, such counsel has had discussions with officers, directors and employees of the Company, with
representatives of Xxxxxxxxx Downs & Co., Inc., the independent accountants who examined the
financial statements of the Company contained in the Registration Statement, the Disclosure Package
and the Prospectus, with representatives of the Underwriters and with counsel to the Underwriters;
and, on the basis of the foregoing (relying as to the facts upon which determinations of
materiality are made upon statements of fact made by officers and other representatives of the
Company that such counsel has deemed necessary or appropriate for the purpose of such letter), such
counsel advises you that nothing has come to such counsel’s attention which would lead them to
believe that (a) the Registration Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (it being understood that such counsel need
express no opinion with respect to the financial statements, including the notes and schedules
thereto and the auditors’ reports thereon, or other financial or statistical data contained in the
Registration Statement), (b) the Disclosure Package, as of the Applicable Time and at the First
Delivery Date or the Optional Delivery Date, as the case may be, when considered with and
supplemented with the price of the Securities set forth on the cover page of the Prospectus,
contained an untrue statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading (it being understood that such counsel need express no opinion with respect to the
financial statements, including the notes and schedules thereto and the auditors’ reports thereon,
or other financial or statistical data contained in the Disclosure Package) or (c) the Prospectus,
as of its date and at the First Delivery Date or the Optional Delivery Date, as the case may be,
contained an untrue statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading (it being understood that such counsel need express no opinion with respect to the
financial statements, including
25
the notes and schedules thereto and the auditors’ reports thereon, or other financial or
statistical data contained in the Prospectus).
In rendering such opinion, such counsel may rely (i) as to matters involving the application
of laws of any jurisdiction other than the States of New York, Texas and Delaware or the federal
laws of the United States, to the extent they deem proper and specified in such opinion, upon the
opinion (which shall be dated the First Delivery Date or the Optional Delivery Date, as the case
may be, shall be in form and substance satisfactory to the Representative, shall expressly state
that the Underwriters may rely on such opinion as if it were addressed to them and shall be
furnished to the Representative) of other counsel of good standing whom they believe to be reliable
and who are satisfactory to counsel for the Underwriter and (ii) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the Company and public
officials.
(d) Each of Xxxx Xxxxx and Xxxxx & Xxxxxx, P.C., counsel for the Selling Stockholders, shall
have furnished to the Representative their written opinion, dated such Delivery Date, in form and
substance satisfactory to the Representative, to the effect that:
(i) Each of the Selling Stockholders has the power and authority to enter into the Custody
Agreement, the Power of Attorney and this Agreement and to perform and discharge such Selling
Stockholder’s obligations thereunder and hereunder; and this Agreement, the Custody Agreements and
the Powers of Attorney have been duly and validly authorized, executed and delivered by (or by the
Attorneys-in-Fact, or either of them, on behalf of) the Selling Stockholders.
(ii) The execution and delivery of this Agreement, the Custody Agreement and the Power of
Attorney and the performance of the terms hereof and thereof and the consummation of the
transactions herein and therein contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, rule or regulation, or any
agreement or instrument known to such counsel to which such Selling Stockholder is a party or by
which such Selling Stockholder is bound or to which any of its property is subject, any such
Selling Stockholder’s charter, by-laws or other governing document, or any order or decree known to
such counsel of any court or government agency or body having jurisdiction over such Selling
Stockholder or any of its respective properties; and no consent, approval, authorization or order
of, or filing with, any court or governmental agency or body is required for the execution,
delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney or for
the consummation of the transactions contemplated hereby and thereby, including the sale of the
Securities being sold by such Selling Stockholder, except such as may be required under the Act or
state securities laws or blue sky laws.
In rendering such opinion such counsel may rely as to matters of fact, to the extent such
counsel deems reasonable upon certificates of officers of the Selling Stockholders provided that
the extent of such reliance is specified in such opinion.
26
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their
written opinion, dated such Delivery Date, in form and substance satisfactory to the
Representative.
(f) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a
letter dated the date hereof or such Delivery Date, as the case may be, in form and substance
satisfactory to the Representative, from Xxxxxxxxx Downs & Co., Inc., containing statements and
information of the type ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information of the Company and its
consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the
Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day
prior to such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its
Chief Executive Officer and Chief Financial Officer, dated such Delivery Date, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct,
as if made on and as of the date thereof and provided that any reference therein to the First
Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is
delivered; and the Company has complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto has been issued and no proceedings for that purpose have been
instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free
Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have
been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up
to the date hereof, the Registration Statement and the Prospectus, and any amendments or
supplements thereto contained all material information required to be included therein by the
Securities Act or the Exchange Act and the applicable rules and regulations of the Commission
thereunder, as the case may be, and in all material respects conformed to the requirements of the
Securities Act or the Exchange Act and the applicable rules and regulations of the Commission
thereunder, as the case may be; the Registration Statement, the Disclosure Package and the
Prospectus, and any amendments or supplements thereto, did not and do not include 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, in the light of the circumstances under which they were
made, not misleading; and, since the effective date of the Registration
27
Statement, there has occurred no event required to be set forth in an amendment or
supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration
Statement, the Time of Sale Prospectus and Prospectus, except as set forth in the Time of Sale
Prospectus and the Prospectus, there has not been any (a) transaction or event which has a Material
Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material
to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise,
directly or indirectly incurred by the Company or any Subsidiary that is material to the Company
and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(h) On each Delivery Date, there shall have been furnished to you, as Representative of the
several Underwriters, a certificate or certificates, dated such Delivery Date and addressed to you,
signed by each of the Selling Stockholders or such Selling Stockholder’s Attorneys-in-Fact to the
effect that the representations and warranties of such Selling Stockholder contained in this
Agreement are true and correct as if made on and as of the date thereof, and that such Selling
Stockholder has complied with all the agreements and satisfied all the conditions on such Selling
Stockholder’s part to be performed or satisfied at or prior to such Delivery Date.
(i) (i) Neither the Company nor any of the Subsidiaries shall have sustained since the date
of the latest audited financial statements included in the Time of Sale Prospectus and the
Prospectus any loss or interference with its business, otherwise than as set forth or contemplated
in the Time of Sale Prospectus and the Prospectus and (ii) since the respective dates as of which
information is given in the Prospectus, there shall not have been any change in the capitalization
of the Company or any change, or any development or event involving a prospective change, on the
condition (financial or otherwise), business, properties, business prospects (other than as a
result of an event, circumstance or condition applicable to the oil and gas or oilfield services
industries as a whole) or results of operations of the Company and the Subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Time of Sale Prospectus and the
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Representative so material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities being delivered on such
Delivery Date on the terms and in the manner contemplated in the Time of Sale Prospectus and the
Prospectus.
(j) On or after the date hereof, there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in
trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking
activities declared by United States federal or New York or Ohio state authorities or a material
disruption in commercial banking or securities settlement or clearance services in the United
States, (iv) the outbreak or escalation of hostilities involving the United States or the
declaration by the
00
Xxxxxx Xxxxxx of a national emergency or war or (v) the occurrence of any other calamity or
crisis or any change in financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the
Representative makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(k) The Representative shall have received from each person listed on Schedule F
hereto an executed lock-up letter agreement substantially to the effect set forth in the form
attached hereto as Schedule E.
(l) The Company shall have furnished to the Representative such further information,
certificates and documents as the Representative may reasonably request.
All opinions, certificates, letters and documents mentioned above or elsewhere in this
Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and
substance satisfactory to counsel for the Underwriters.
(a) The Company shall indemnify and hold harmless each Underwriter, its affiliates, their
respective officers, directors, employees and agents, and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which the Underwriter may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, any Preliminary Prospectus, the Time of
Sale Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule
433(d) under the Securities Act Regulations, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with investigating or
defending against any such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration Statement, any
Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by an Underwriter expressly for inclusion therein,
which information consists solely of the information set forth in the letter referred to in Section
9(f).
29
(b) Each Selling Stockholder, severally and not jointly, shall indemnify and hold harmless
each Underwriter, its affiliates, their respective officers, directors, employees and agents, and
each person, if any, who controls such Underwriter within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus, or any
amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any Preliminary Prospectus, the Time of Sale
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity written information furnished to the Company by such
Selling Stockholder expressly for inclusion therein, which information consists solely of the
information set forth with respect to such Selling Stockholder in the Time of Sale Prospectus and
the Prospectus in the table under the caption “Selling Stockholders,” and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending against any such loss, claim, damage, liability or action as such
expenses are incurred. Notwithstanding anything in this Agreement to the contrary, the liability
of each Selling Stockholder under this Section 9(b) shall be limited to the total proceeds received
by such Selling Stockholder from the sale of Securities (net of underwriting discounts and
commissions, but before deducting expenses) pursuant to this Agreement.
(c) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, its affiliates, their respective officers, directors, employees and agents, and each
person, if any, who controls the Company within the meaning of Section 15 of the Securities Act,
and each Selling Stockholder, against any losses, claims, damages or liabilities to which the
Company or such Selling Stockholder may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, any Preliminary Prospectus,
the Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, in reliance upon and in conformity with written information
furnished to the Company by such Underwriter expressly for inclusion therein, which information
consists solely of the information set forth in the letter referred to in Section 9(f), and will
reimburse the
30
Company and each Selling Stockholder for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending against any such loss, claim, damage,
liability or action as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under this Section of notice of the
commencement of any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under subsection (a), (b) or (c) above, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified party otherwise than
under subsection (a), (b) or (c) above. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, except as provided in the following sentence,
after notice from the indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of investigation. After notice
from the indemnifying party to the indemnified party of the indemnifying party’s election to assume
the defense of such action, the indemnified party shall have the right to employ its own counsel in
any such action, but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel, (ii) if the named parties in any such action include both
the indemnifying party and the indemnified party and the indemnified party shall have reasonably
concluded that there is an actual or potential conflict between the positions of the indemnifying
party and the indemnified party in conducting the defense of any such action or that there may be
legal defenses available to it or other indemnified parties that are different from or additional
to those available to the indemnifying party or (iii) the indemnifying party shall not have
employed counsel to assume the defense of such action within a reasonable time after notice of
commencement thereof, in each of which cases the fees and expenses of such counsel shall be at the
expense of the indemnifying party (it being understood, however, that the indemnifying party shall
not be liable for the fees and expenses of more than one separate counsel in addition to any
counsel). 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 any judgment with respect to,
any pending or threatened action or claim in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action or claim and (ii)
does not include a statement as to or an admission of fault, culpability or failure to act by or on
behalf of any indemnified party.
31
(e) If the indemnification provided for in this Section is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above in
respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits received by the
Company, the Selling Stockholders and the Underwriters, respectively, from the offering of the
Securities. If, however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to reflect not only the
relative benefits but also the relative fault of the Company, the Selling Stockholders and the
Underwriters, respectively, in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the Company, the Selling
Stockholders and the Underwriters, respectively, shall be deemed to be in the same proportion as
the total net proceeds from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and the Selling Stockholders, respectively, bear to the
total underwriting discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Company, the Selling Stockholders or the Underwriters and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue statement or omission. The
Company, the Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were determined by pro rata allocation
or by any other method of allocation which does not take account of the equitable considerations
referred to above in this subsection (e). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending any such action or
claim based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall be required to
contribute any amount in excess of the amount by which the underwriting discounts and commissions
applicable to the Securities purchased by such Underwriter exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission and (ii) no Selling Stockholder shall be required to
contribute any amount in excess of the amount by which the total proceeds to such Selling
Stockholder from the sale of the Securities sold by such Selling Stockholder pursuant to this
Agreement exceed the amount of any damages that such Selling Stockholder has otherwise been
required to pay by reason of any 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 Securities Act) shall be
32
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) Prior to the First Delivery Date, the Underwriters shall deliver a letter to the Company
and the Selling Stockholders identifying the statements furnished by them in writing expressly for
inclusion in the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus
and the Prospectus, or any Issuer Free Writing Prospectus. The Company and the Selling
Stockholders hereby acknowledge that the only information that the Underwriters have furnished to
the Company expressly for inclusion the Registration Statement, any Preliminary Prospectus, the
Time of Sale Prospectus and the Prospectus, or any Issuer Free Writing Prospectus are the
statements to be contained in such letter.
33
any reason under this Agreement other than a breach by the Underwriters of their
representations herein or obligations hereunder or (b) the Underwriters shall decline to purchase
the Securities for any reason permitted under this Agreement (including the termination of this
Agreement pursuant to Section 11, other than by reason of the occurrence of any event specified in
Sections 8(j)(i), (iii), (iv) or (v), but excluding the failure of any of the conditions herein to
be satisfied as a result of a breach by the Underwriters of their representations herein), the
Company shall reimburse the Underwriters for the reasonable fees and expenses of their counsel and
for such other out-of-pocket expenses as shall have been reasonably incurred by them in connection
with this Agreement and the proposed purchase of the Securities, and upon demand, the Company shall
pay the full amount thereof to the Underwriters. If this Agreement is terminated pursuant to
Section 10 hereof by reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter on account of those expenses.
(a) If to the Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission to KeyBanc Capital Markets, KeyBank Tower, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000,
Attention: Xxxxxx Xxxx (Facsimile: 000-000-0000; Telephone: 000-000-0000); and with a copy
(which shall not constitute notice) to Xxxxx Day, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000,
Attention: Xxxxxxxxxxx X. Xxxxx, Esq. (Facsimile: 000-000-0000; Telephone: 000-000-0000);
(b) if to the Company, shall be delivered or sent by mail, telex or facsimile transmission to
it at 0000 Xx. 000 Xxxx, Xxxxx #000, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx
(Facsimile: 000-000-0000; Telephone: 000-000-0000); with a copy (which shall not constitute
notice) to Xxxxxx & Xxxxxx LLP, First City Tower, 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000-0000, Attention: T. Xxxx Xxxxx, Esq. (Facsimile: 000-000-0000; Telephone: 000-000-0000);
(c) if to any of the Selling Stockholders, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Attorney-in-Fact as set forth in the Powers of
Attorney.
Any notice of a change of address or facsimile transmission number must be given by the
Company or the Underwriters, as the case maybe, in writing at least three days in advance of such
change.
34
18. Governing Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Ohio, without giving effect to the principles of conflicts of laws thereof.
35
shall each be deemed to be an original but all such counterparts shall together constitute one
and the same instrument.
[Signature Page Follows.]
36
If the foregoing correctly sets forth the agreement between the Company and the Underwriters,
please indicate your acceptance in the space provided for that purpose below.
| Very truly yours, SUPERIOR WELL SERVICES, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President and Chief Financial Officer | |||
| SELLING STOCKHOLDERS |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Attorney-in-Fact | ||||
| Accepted and agreed by: KeyBanc Capital Markets, a division of McDonald Investments Inc. Acting as Representative of the Several Underwriters named in attached Schedule B McDonald Investments Inc. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Managing Director | |||
SCHEDULE A
Selling Stockholders
| Number of Firm | ||||
| Name | Securities to be Sold | |||
Xxxxxx Industries, Inc. |
300,000 | |||
X.X. Xxxxxx, Xx. Grantor
Retained Annuity Trust |
150,000 | |||
Xxxxxx X. Xxxxxx |
100,000 | |||
Xxxxxxx X. Xxxxxx |
100,000 | |||
Xxxx X. Xxxxxx |
100,000 | |||
Xxxxx X. Xxxxxx |
150,000 | |||
Xxxxxx X. Xxxxxx |
100,000 | |||
Xxxxx X. Xxxxxxx |
200,000 | |||
Xxxxx X. Xxxxxxxxxx |
200,000 | |||
Rhys X. Xxxxx |
200,000 | |||
A-1
SCHEDULE B
| Number of | ||||
| Firm Securities | ||||
| to be | ||||
| Underwriter | Purchased | |||
KeyBanc Capital Markets, a division of
McDonald Investments Inc. |
2,208,000 | |||
X.X. Xxxxxxx & Sons, Inc. |
874,000 | |||
RBC Capital
Markets Corporation. |
644,000 | |||
Xxxxxxx & Company International |
644,000 | |||
Xxxxxxx Rice
& Company L.L.C. |
230,000 | |||
Total |
4,600,000 | |||
B-1
SCHEDULE C
Materials other than the Time of Sale Prospectus that comprise the Disclosure Package:
Price to public: $25.50 per share.
C-1
SCHEDULE D
Issuer Free Writing Prospectuses not included in the Disclosure Package:
None.
D-1
SCHEDULE E
FORM OF LOCK-UP LETTER AGREEMENT
, 2006
KeyBanc Capital Markets, a division of
McDonald Investments Inc.
As Representative of the several Underwriters
c/x XxXxxxxx Investments Inc.
XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
McDonald Investments Inc.
As Representative of the several Underwriters
c/x XxXxxxxx Investments Inc.
XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that you, as representative (the “Representative”), propose to
enter into an Underwriting Agreement (the “Underwriting Agreement”) on behalf of the several
Underwriters named in Schedule B to such agreement (the “Underwriters”), with Superior Well
Services, Inc., a Delaware corporation (the “Company”), and the Selling Stockholders named therein
(the “Selling Stockholders”) providing for a public offering (the “Offering”) of shares of the
common stock of the Company, par value $0.01 per share (the “Common Stock”). The undersigned
recognizes that the Offering will be of benefit to the undersigned and will benefit the Company and
the Selling Stockholders. The undersigned acknowledges that the Company, the Selling Stockholders,
you and the other Underwriters will proceed with the Offering in reliance of this Lock-Up Letter
Agreement.
In consideration of the foregoing, the undersigned hereby agrees that the undersigned will not
(and will cause any spouse or immediate family member of the spouse or the undersigned living in
the undersigned’s household not to), without the prior written consent of McDonald Investments Inc.
(which consent may be withheld in its sole discretion), directly or indirectly, sell, offer,
contract or grant any option to sell (including, without limitation, any short sale), pledge,
transfer, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the
Securities Exchange Act of 1934, as amended, or otherwise dispose of any shares of Common Stock,
options or warrants to acquire shares of Common Stock, or securities exchangeable or exercisable
for or convertible into shares of Common Stock currently or hereafter owned either of record or
beneficially (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) by
the undersigned (or such spouse or family member), or publicly announce an intention to do any of
the foregoing, for a period commencing on the date of execution of this Lock-Up Letter Agreement
and continuing through the close of trading on the date 90 days after the date of the Prospectus
(the “Lock-Up Period”). Notwithstanding the foregoing, during the Lock-Up Period the undersigned
shall be entitled to transfer and assign shares of Common Stock [if the undersigned is a
E-1
corporation, partnership, limited liability company or other entity: to any corporation,
partnership, limited liability company or other entity that controls, is controlled by or is under
common control with the undersigned or to any equity holder of the undersigned] [if the undersigned
is an individual: to a trust or limited partnership for the benefit of the undersigned’s spouse or
members of the undersigned’s immediate family]; provided that such transferee or assignee of shares
of Common Stock shall furnish to the Representative a Lock-Up Letter substantially in the form of
Schedule E to the Underwriting Agreement prior to any such transfer.
Notwithstanding the foregoing, (1) during the last 17 days of the initial Lock-Up Period, the
Company issues an earnings release or material news or a material event relating to the Company
occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it
will release earnings results during the 16-day period beginning on the last day of the initial
Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the
18-day period beginning on the date of the issuance of the earnings release or the occurrence of
the material news or material event, as applicable, unless McDonald Investments Inc. waives, in
writing, such extension, except that such extension will not apply if, within three business days
prior to the 15th calendar day before the last day of the initial Lock-up Period, (a) the Company
delivers a certificate, signed by the Chief Financial Officer or Chief Executive Officer of the
Company, certifying on behalf of the Company that (i) the shares of Common Stock are “actively
traded securities” (as defined in Regulation M), (ii) the Company meets the applicable requirements
of paragraph (a)(1) of Rule 139 under the Securities Act of 1933 in the manner contemplated by NASD
Conduct Rule 2711(f)(4) and (iii) the provisions of NASD Conduct Rule 2711(f)(4) are not applicable
to any research reports relating to the Company published or distributed by any of the Underwriters
during the 15 days before or after the last day of the Lock-up Period (before giving effect to such
extension) and (b) McDonald Investments Inc. concurs, in its reasonable judgment, with such
certifications.
The undersigned hereby acknowledges and agrees that written notice of any extension of the
Lock-Up Period pursuant to the previous paragraph will be delivered by McDonald Investments Inc. to
the Company and that any such notice properly delivered will be deemed to have been given to, and
received by, the undersigned. The undersigned further agrees that, prior to engaging in any
transaction or taking any other action that is subject to the terms of this Lock-Up Agreement
during the period from the date of this Lock-Up Agreement to and including the 34th day
following the expiration of the initial Lock-Up Period, it will give notice thereof to the Company
and will not consummate such transaction or take any such action unless it has received written
confirmation from the Company that the Lock-Up Period (as may have been extended pursuant to the
previous paragraph) has expired.
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of shares of Common Stock or securities
convertible into or exchangeable or exercisable for shares of Common Stock held by the undersigned
except in compliance with the foregoing restrictions.
E-2
With respect to the Offering only, the undersigned waives any registration rights relating to
registration under the Securities Act of 1933 of any shares of Common Stock owned either of record
or beneficially by the undersigned, including any rights to receive notice of the Offering.
If for any reason the Underwriting Agreement is terminated prior to the First Delivery Date
(as defined in the Underwriting Agreement) pursuant to the provisions thereof, then the agreements
set forth herein shall likewise be terminated.
This Lock-Up Letter Agreement is irrevocable and will be binding on the undersigned and the
respective successors, heirs, personal representatives, and assigns of the undersigned.
| Very truly yours, |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
E-3
SCHEDULE F
Persons to Execute Lock-Up Letter Agreements:
X.X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx Associated Companies, Inc.
Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxx
Rhys X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxx
Xxxx X. Xxxxxx, XX
Xxxxxxx X. Xxxxxxxxx
Xxxxxx X. XxXxxxx
Buffalo Valley Real Estate Co.
F-1