EXHIBIT 1.1
______________ SHARES
ENERGY PARTNERS, LTD.
COMMON STOCK
UNDERWRITING AGREEMENT
____________________, 2003
CREDIT SUISSE FIRST BOSTON LLC
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Energy Partners, Ltd., a Delaware corporation
("COMPANY") proposes to issue and sell ____________ shares of its Common Stock,
par value $.01 per share ("SECURITIES"), and the stockholders listed in Schedule
A hereto ("SELLING STOCKHOLDERS") propose severally to sell an aggregate of
_______________ outstanding shares of the Securities (such _____________ shares
of Securities being hereinafter referred to as the "FIRM SECURITIES"). The
Selling Stockholders also propose to sell to the Underwriters, at the option of
the Underwriters, an aggregate of not more than _____________ additional
outstanding shares of the Company's Securities, as set forth below (such
_____________ additional shares being hereinafter referred to as the "OPTIONAL
SECURITIES"). The Firm Securities and the Optional Securities are herein
collectively called the "OFFERED SECURITIES." The Company and the Selling
Stockholders hereby agree with the several Underwriters named in Schedule B
hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-103833) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A)
has been declared effective under the Securities Act of 1933 ("ACT")
and is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
(the "INITIAL REGISTRATION STATEMENT") has been declared effective,
either (A) an additional registration statement (the "ADDITIONAL
REGISTRATION STATEMENT") relating to the Offered Securities may have
been filed with the Commission pursuant to Rule 462(b) ("RULE 462(b)")
under the Act and, if so filed, has become effective upon filing
pursuant to such Rule and the Offered Securities all have been duly
registered under the Act pursuant to the initial registration statement
and, if applicable, the additional registration statement or (B) such
an additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon
filing pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act pursuant to
the initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each
such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
("RULE 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"EFFECTIVE TIME" with respect to the initial registration statement or,
if filed prior to the execution and delivery of this Agreement, the
additional registration statement means (A) if the Company has advised
Credit Suisse First Boston LLC ("CSFB"), Xxxxxxx Xxxxx & Co. and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (collectively,
"XXXXXXX Xxxxx"; and the Representatives collectively, the
"REPRESENTATIVES") that it does not propose to amend such registration
statement, the date and time as of which such registration statement,
or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by
the Commission. If an additional registration statement has not been
filed prior to the execution and delivery of this Agreement but the
Company has advised the Representatives that it proposes to file one,
"EFFECTIVE TIME" with respect to such additional registration statement
means the date and time as of which such registration statement is
filed and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE"
with respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including all material incorporated by reference
therein, including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form
on which it is filed and including all information (if any) deemed to
be a part of the initial registration statement as of its Effective
Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is
hereinafter referred to as the "INITIAL REGISTRATION STATEMENT." The
additional registration statement, as amended at its Effective Time,
including the contents of the initial registration statement
incorporated by reference therein and including all information (if
any) deemed to be a part of the additional registration statement as of
its Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "ADDITIONAL REGISTRATION STATEMENT." The Initial Registration
Statement and the Additional Registration are hereinafter referred to
collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION STATEMENT." The form of prospectus relating to the
Offered Securities, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("RULE 424(b)") under the Act or (if no
such filing is required) as included in a Registration Statement,
including all material incorporated by reference in such prospectus, is
hereinafter referred to as the "PROSPECTUS." No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (B)
on the Effective Date of the Additional Registration Statement (if
any), each Registration Statement conformed or will conform, in all
respects to the requirements of the Act and the Rules and Regulations
and did not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included,
each Registration Statement and the Prospectus will
2
conform, in all respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement
and the Prospectus will conform in all respects to the requirements of
the Act and the Rules and Regulations, neither of such documents will
include any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do not
apply to statements in or omissions from a Registration Statement or
the Prospectus based upon written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification.
(iv) Each subsidiary of the Company has been duly incorporated
or organized and is an existing corporation or other entity in good
standing under the laws of the jurisdiction of its incorporation or
organization, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation or other entity in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification; all of the issued
and outstanding capital stock or other ownership interest of each
subsidiary of the Company has been duly authorized and validly issued
and is fully paid and nonassessable; and the capital stock or other
ownership interest of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects.
(v) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled
"Actual" under the caption "Capitalization" and, as of each Closing
Date, the authorized, issued and outstanding capital stock of the
Company will be as set forth in the Prospectus under the column
entitled "As Adjusted" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). The Offered Securities and all
other outstanding shares of capital stock of the Company have been duly
authorized and validly issued. All other outstanding shares of capital
stock of the Company (including the Offered Securities to be sold by
the Selling Stockholders) are fully paid and nonassessable and, when
the Offered Securities to be sold by the Company have been delivered
and paid for in accordance with this Agreement, such Offered Securities
will be fully paid and nonassessable. The Offered Securities and all
other outstanding shares of capital stock of the Company conform to the
description thereof contained or incorporated in the Prospectus; and
the stockholders of the Company have no preemptive rights with respect
to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(vii) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act other than those that have
been complied with or waived in connection with this offering.
3
(viii) No relationship, direct or indirect, exists between or
among the Company or any of their respective subsidiaries, on the one
hand, and the directors, officers, shareholders, customers or suppliers
of the Company or any of their respective subsidiaries on the other
hand, which is required to be described in the Prospectus which is not
so described or incorporated by reference therein.
(ix) The Offered Securities to be sold by the Company have
been approved for listing on The New York Stock Exchange subject to
notice of issuance. The Offered Securities to be sold by the Selling
Stockholders have been listed on The New York Stock Exchange.
(x) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the sale
of the Offered Securities, except such as have been obtained and made
under the Act and such as may be required under state securities laws.
(xi) There are no contracts or documents which are required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xii) Neither the Company nor any of its subsidiaries is (1)
in violation of its charter or by-laws, or other organizational
documents, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any
subsidiary is subject (collectively, "AGREEMENTS AND Instruments")
except for such defaults that, individually or in the aggregate, would
not have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT") or
(2) in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or
assets or to the conduct of its business, except for such violations or
failures that, individually or in the aggregate, would not result in a
Material Adverse Effect; and the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated in
this Agreement and in the Registration Statement (including the
issuance and sale of the Offered Securities to be sold by the Company
and the use of the proceeds from the sale of the Offered Securities to
be sold by the Company as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Company with its obligations
under this Agreement have been duly authorized by all necessary
corporate action and, except as disclosed in the Prospectus, do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions
of the charter or by-laws, or other organizational documents, of the
Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations, except as would not have a Material Adverse
Effect. As used herein, a "REPAYMENT EVENT" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company.
4
(xiv) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus, the Company
and its subsidiaries hold any leased real or personal property under
valid and enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by them.
(xv) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xvi) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent
that might have a Material Adverse Effect.
(xvii) The Company and its 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 property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xviii) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have Material Adverse Effect; and the Company is not aware of
any pending investigation which might lead to such a claim.
(xix) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xx) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and neither the Company nor any
of its subsidiaries has any reason to believe that they will not be
able to renew their existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not have
a Material Adverse Effect.
(xxi) The financial statements included or incorporated by
reference in the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis.
5
(xxii) Except as disclosed in the Prospectus, since the date
of the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xxiii) The Company and each of its subsidiaries have
established and maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions were,
are and will be executed in accordance with management's general or
specific authorization; (ii) transactions were, are and will be
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets was, is and
will be permitted only in accordance with a management's general or
specific authorizations; and (iv) the recorded accountability for
assets was, is and will be compared with existing assets at reasonable
intervals and appropriate action was, is and will be taken with respect
to any differences.
(xxiv) The Company has filed in a timely manner with the
Commission each document required to be filed by it pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), each
such document at the time it was filed conformed in all material
respects to the requirements of the Exchange Act and none of such
documents 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, in light of the circumstances under which
they were made, not misleading. The Company files such reports with the
Commission on the Electronic Data Gathering, Analysis and Retrieval
(XXXXX) system.
(xxv) The statistical data included or incorporated by
reference in the Prospectus are derived from sources which the Company
reasonably and in good faith believes to be accurate, reasonable and
reliable and agrees with the sources from which they were derived.
(xxvi) The information that was provided by the Company and
its subsidiaries, on the basis of which the reserve estimates and
related information included or incorporated by reference in each
Registration Statement and the Prospectus was prepared, is true and
correct in all material respects.
(b) Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Stockholder has, and on each Closing Date
hereinafter mentioned will have, valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Stockholder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities on each Closing Date hereunder the several Underwriters will
acquire valid and unencumbered title to the Offered Securities to be
delivered by such Selling Stockholder on such Closing Date.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act and the Rules and Regulations and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all respects to the requirements of the
Act and the Rules and Regulations did not include, or will not include,
any untrue statement of a material fact and did not omit, or will not
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C) on the
date of this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each
6
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included,
each Registration Statement and the Prospectus will conform, in all
respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules
and Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. The two preceding sentences apply only to the
extent that any statements in or omissions from a Registration
Statement or the Prospectus are based on written information furnished
to the Company by such Selling Stockholder specifically for use
therein.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against the such Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
(iv)Such Selling Stockholder has reviewed and is familiar with
each Registration Statement and the Prospectus and, with respect to
information furnished in writing by or on behalf of such Selling
Stockholder for use therein (it being understood and agreed that the
only such information furnished by or on behalf of any Selling
Stockholder consists of the information described as such in Section
7(b) hereof), at the time of the filing the Prospectus pursuant to Rule
424(b), neither any Registration Statement nor the Prospectus contains
or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary in order to make the
statements therein not misleading.
(v) Such Selling Stockholder has duly executed and delivered
the Custody Agreement in the form heretofore furnished to the
Underwriters, and the Custodian is authorized to deliver the Offered
Securities to be sold by such Selling Stockholder hereunder.
(vi) Except as set forth in an annex to the Custody Agreement,
neither such Selling Stockholder nor any of its affiliates directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, Section (ee) of the
By-laws of the National Association of Securities Dealers, Inc. (the
"NASD")), any member firm of the NASD.
(vii) Such Selling Stockholder has not taken, directly or
indirectly, any action which is designed to or which has constituted 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 Offered Securities.
(viii) No filing with, or consent, approval, authorization,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or
required for the performance by such Selling Stockholder of its
obligations hereunder or in the Custody Agreement, or in connection
with the offer, sale and delivery of the Offered Securities by such
Selling Stockholder hereunder or the consummation by such Selling
Stockholder of the transactions contemplated by this Agreement, except
such as may have previously been made or obtained or as may be required
under the Act, Section 16 of the Exchange Act or the Rules and
Regulations or state securities laws.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter
7
agrees, severally and not jointly, to purchase from the Company and each Selling
Stockholder, at a purchase price of $_______ per share, that number of Firm
Securities (rounded up or down, as determined by the Representatives in their
discretion, in order to avoid fractions) obtained by multiplying
________________ Firm Securities in the case of the Company and the number of
Firm Securities set forth opposite the name of such Selling Stockholder in
Schedule A hereto, in the case of a Selling Stockholder, in each case by a
fraction the numerator of which is the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule B hereto and the denominator
of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under Custody Agreements made with the Custodian. Each
Selling Stockholder agrees that the shares represented by the certificates held
in custody for the Selling Stockholders under such Custody Agreements are
subject to the interests of the Underwriters hereunder, that the arrangements
made by the Selling Stockholders for such custody are to that extent
irrevocable, and that the obligations of the Selling Stockholders hereunder
shall not be terminated by operation of law, whether by the death of any
individual Selling Stockholder or the occurrence of any other event, or in the
case of a trust, by the death of any trustee or trustees or the termination of
such trust. If any individual Selling Stockholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death or other event or termination had not occurred, regardless of whether
or not the Custodian shall have received notice of such death or other event or
termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to the Representatives drawn to
the order of the Company in the case of ________________ shares of Firm
Securities and the Selling Stockholders, as specified on Schedule A in the case
of _____________shares of Firm Securities, at the office of the Company at 9:00
A.M., New York time, on ______________, or at such other time not later than
seven full business days thereafter as the Representatives and the Company
determine, such time being herein referred to as the "FIRST CLOSING DATE." For
purposes of Rule 15c6-1 under the Exchange Act, the First Closing Date (if later
than the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering. The certificates for the Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as the Representatives request and will be made available for
checking and packaging at the above office of the Company least 24 hours prior
to the First Closing Date.
In addition, upon written notice from the Representatives given to the
Selling Stockholders from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Selling Stockholders agree, severally and not jointly, to
sell to the Underwriters the respective numbers of Optional Securities obtained
by multiplying the number of Optional Securities specified in such notice by a
fraction the numerator of which is the number of shares set forth opposite the
names of such Selling Stockholders in Schedule A hereto under the caption
"Number of Optional Securities to be Sold" and the denominator of which is the
total number of Optional Securities (subject to adjustment by the
Representatives to eliminate fractions). Such Optional Securities shall be
purchased from each Selling Stockholder for the account of each Underwriter in
the same proportion as the number of Firm Securities set forth opposite such
Underwriter's name bears to the total number of Firm Securities (subject to
adjustment by the Representatives to eliminate fractions) and may be purchased
by the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by the Representatives to the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE," which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by the
Representatives but shall be not later than five full business days after
written notice of election to purchase
8
Optional Securities is given. The Custodian will deliver the Optional Securities
being purchased on each Optional Closing Date to the Representatives for the
accounts of the several Underwriters, against payment of the purchase price
therefor in Federal (same day) funds by official bank check or checks or wire
transfer to an account at a bank acceptable to the Representatives drawn to the
order of the Selling Stockholders in Schedule A pursuant to wire instructions
provided to the Representatives and contained in the Closing Memorandum. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered in
such names as the Representatives request upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at
the office of the Company at a reasonable time in advance of such Optional
Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by the Representatives, subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement.
The Company will advise the Representatives promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by the Representatives.
(b) The Company will advise the Representatives promptly of
any proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the
Initial Registration Statement, the Additional Registration Statement
(if any) or the Prospectus and will not effect such amendment or
supplementation without CSFB's and Xxxxxxx Xxxxx'x consent; and the
Company will also advise the Representatives promptly of the
effectiveness of each Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and of any
amendment or supplementation of a Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs 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 to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify the Representatives of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither
CSFB's nor Xxxxxxx Xxxxx'x consent to, nor the Underwriters' delivery
of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period
9
of at least 12 months beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (four (4) of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as the Representatives
request. The Prospectus shall be so furnished on or prior to 3:00 P.M.,
New York time, on the business day following the later of the execution
and delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other such documents shall be so furnished
as soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the
Representatives designate and will continue such qualifications in
effect so long as required for the distribution.
(g) For a period of 90 days after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Representatives, except issuances of Securities
pursuant to the conversion or exchange of convertible or exchangeable
securities or the exercise of warrants or options, in each case
outstanding on the date hereof, grants of employee stock options
pursuant to the terms of a plan in effect on the date hereof, issuances
of Securities pursuant to the exercise of such options.
(h) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company under this Agreement, for any filing fees
and other expenses (including fees and disbursements of counsel) in
connection with qualification of the Offered Securities for sale under
the laws of such jurisdictions as the Representatives designate and the
printing of memoranda relating thereto, for the filing fee incident to
the review by the National Association of Securities Dealers, Inc. of
the Offered Securities, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities, for any transfer taxes on the
sale by the Selling Stockholders of the Offered Securities to the
Underwriters and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters.
(i) Each Selling Stockholder agrees, for a period of 90 days
after the date of the initial public offering of the Offered
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap,
hedge or other arrangement that transfers, in whole or in part, any of
the economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or publicly
disclose the intention to make any such offer, sale, pledge or
disposition, or enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of the
Representatives.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part
10
of the Company and the Selling Stockholders herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Stockholders of their obligations
hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of KPMG LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements
examined by them and included or incorporated by reference in
the Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) on the basis of a reading of the latest
available interim financial statements of the Company,
inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets or net assets as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(B) for the period from the closing date of
the latest income statement included or incorporated
by reference in the Prospectus to the closing date of
the latest available income statement read by such
accountants there were any decreases, as compared
with the corresponding period of the previous year
and with the period of corresponding length ended the
date of the latest income statement included in the
Prospectus, in consolidated net sales or net
operating income in the total or per share amounts of
consolidated income before extraordinary items or net
income;
except in all cases set forth in clause (A) above for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial
11
Registration Statement is prior to the execution and delivery of this
Agreement but the Effective Time of the Additional Registration
Statement is subsequent to such execution and delivery, "REGISTRATION
Statements" shall mean the Initial Registration Statement and the
additional registration statement as proposed to be filed or as
proposed to be amended by the post-effective amendment to be filed
shortly prior to its Effective Time, and (iii) "PROSPECTUS" shall mean
the prospectus included in the Registration Statements. All financial
statements and schedules included in material incorporated by reference
into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by the Representatives. If the Effective Time of
the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by the Representatives. If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any change in U.S. or international
financial, political or economic conditions or currency exchange rates
or exchange controls as would, in the judgment of a majority in
interest of the Underwriters including the Representatives, be likely
to prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market
or in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on
the New York Stock Exchange or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (v) any banking moratorium declared by U.S. Federal or, New
York authorities; (vi) any major disruption of settlements of
securities or clearance services in the United States or (vii) any
attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such attack, outbreak, escalation,
act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx, outside counsel for the
Company to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Securities to be purchased by the Underwriters from the
Company have been duly authorized for issuance and sale to the
Underwriters pursuant to the
12
Underwriting Agreement and, when issued and delivered by the
Company pursuant to the Underwriting Agreement, against
payment of the consideration set forth in the Underwriting
Agreement, will be validly issued and fully paid and
non-assessable.
(iii) EPL Pipeline L.L.C. has been duly organized and is validly
existing as a limited liability company in good standing under
the laws of the jurisdiction of its organization.
(iv) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(v) Based on oral confirmation from the SEC, the Registration
Statement has been declared effective under the Act; any
required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by
Rule 424(b); and, to our knowledge, no stop order suspending
the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the Act
and, to our knowledge, no proceedings for that purpose have
been instituted or are pending or threatened by the
Commission.
(vi) The Registration Statement, including the Rule 430A
Information, the Prospectus and each amendment or supplement
to the Registration Statement and the Prospectus as of their
respective effective or issue dates (other than the financial
statements and supporting schedules included therein or
omitted therefrom, as to which we need express no opinion)
complied as to form in all material respects with the
requirements of the Act and the Act Regulations.
(vii) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable
statutory requirements, with any applicable requirements of
the charter and by-laws of the Company and the requirements of
the New York Stock Exchange.
(viii) The information in the Prospectus under "Description of
Capital Stock--Common Stock," and "Description of Capital
Stock--Preferred Stock," to the extent that it constitutes
matters of law, summaries of legal matters, the Company's
charter and bylaws or legal proceedings, or legal conclusions,
has been reviewed by us and is correct in all material
respects.
(ix) The shares of Common Stock referred to in the Registration
Statement on Form S-1 (File No. 333-42876) under Part II, Item
15, numbers (a)(7) and (a)(8) have been duly and validly
issued and are fully paid and non-assessable; and the issuance
of such shares of capital stock did not violate any statutory
preemptive rights, or, to our knowledge, contractual
preemptive rights or other similar rights of any
securityholder of the Company.
(x) The issuance of the Securities to be sold by the Company is
not subject to any statutory or, to our knowledge, any
contractual preemptive right of any securityholder of the
Company.
(xi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other
than under the Act and the Act Regulations, which have been
obtained, or as may be required under the securities or blue
sky laws of the various states, as to which we express no
opinion) is necessary or required in connection with the due
authorization, execution and delivery of the Underwriting
Agreement or for the offering, issuance, sale or delivery of
the Securities.
(xii) The execution, delivery and performance of the Underwriting
Agreement and the consummation of the transactions
contemplated in the Underwriting Agreement and in the
13
Registration Statement (including the issuance and sale of the
Securities to be sold by the Company, and the use of the
proceeds from the sale of the Securities to be sold by the
Company as described in the Prospectus under the caption "Use
of Proceeds") and compliance by the Company with its
obligations under the Underwriting Agreement do not and will
not, whether with or without the giving of notice or lapse of
time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined in Section __________
of the Underwriting Agreement) under or result in the creation
or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant
to any agreement or instrument identified in the Index to
Exhibits to the Registration Statement, to which the Company
or any subsidiary is a party or by which it or any of them may
be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect),
nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary, or
any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any
of their respective properties, assets or operations
(xiii) To our knowledge, there are no agreements required to be
described in the Registration Statement that are not so
described.
We have participated in conferences with representatives of the
Underwriters, officers and other representatives of the Company, counsel for the
Company and representatives of the independent public accountants of the Company
at which the contents of the Prospectus and the Registration Statement and
related matters were discussed. Given the limitations inherent in the role of
outside counsel and the character of determinations involved in the preparation
of the Prospectus and the Registration Statement, we are not passing upon and do
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Prospectus and the Registration Statement and have
made no independent check or verification thereof. On the basis of the
foregoing, no facts have come to our attention which lead us to believe that the
Prospectus and the Registration Statement, as of their respective dates or as of
the date hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that we express no comment with respect to the
financial statements, including the notes thereto, or any other financial,
reserve or statistical data found in or derived from the internal accounting or
other records of the Company and any of its subsidiaries set forth or referred
to in the Prospectus and the Registration Statement).
In rendering such opinion, such counsel may rely, to the extent they
deem proper, on certificates of responsible officers of the Company and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
(e) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxx Xxxxx, the Company's Executive Vice
President, General Counsel and Corporate Secretary, to the effect that:
(i) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as now being conducted and to enter into and perform
its obligations under the Underwriting Agreement.
(ii) The Company is duly qualified and is in good
standing in Delaware, Massachusetts and Louisiana which, to my
knowledge, are the only jurisdictions in which such
qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect.
14
(iii) The shares of issued and outstanding capital
stock of the Company other than those shares which are covered
by opinions rendered by Xxxxxx Xxxxxx & Xxxxxxx or Xxxxxx &
Reiss, LLC have been duly authorized and validly issued, are
as set forth in the Prospectus in the column entitled "Actual"
under the caption "Capitalization" and are fully paid and
non-assessable. None of such shares were issued in violation
of any statutory preemptive rights or, to my knowledge,
contractual preemptive rights or other similar rights of any
security holder of the Company.
(iv) Each of the subsidiaries, other than EPL
Pipeline L.L.C., has been duly incorporated or organized and
is validly existing as a corporation, limited liability
company or other entity in good standing under the laws of the
jurisdiction of its incorporation or organization.
(v) Each of the subsidiaries has the power and
authority to own, lease and operate its properties and to
conduct its business as now conducted.
(vi) Each of the subsidiaries is duly qualified in
the jurisdiction set forth on Exhibit A which, to my
knowledge, are the only jurisdictions in which such
qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect.
(vii) The issued and outstanding shares or membership
interests of each of the subsidiaries have been duly
authorized and validly issued, are fully paid and
non-assessable and are owned by the Company, free and clear of
any recorded security interest or, to my knowledge, any other
security interest, mortgage, pledge, lien, encumbrance or
claim. None of the outstanding shares or membership interests
of the subsidiaries were issued in violation of any statutory
preemptive right or, to my knowledge, contractual preemptive
rights of any security holder of the subsidiaries.
(viii) To my knowledge, there is not pending or
overtly threatened in writing, any action, suit, proceeding,
inquiry or investigation, against the Company or any of the
subsidiaries, or against the property of the Company or any of
the subsidiaries, before or brought by any court or
governmental agency or body, domestic or foreign, which would
reasonably be expected to result in a Material Adverse Effect,
or which would reasonably be expected to materially and
adversely affect the consummation of the transactions
contemplated in the Underwriting Agreement or the performance
by the Company of its obligations thereunder.
(ix) There are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to a
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act other than those that have been complied
with or waived in connection with this offering.
(x) To my knowledge, neither the Company nor any
subsidiary is in violation of its charter or by-laws and no
default by the Company or any subsidiary exists in the due
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument that is filed as an exhibit to the Registration
Statement, except any such violation or default which would
not reasonably be expected to result in a Material Adverse
Effect.
15
(xi) The information in the Annual Report on Form
10-K for the year ended December 31, 2002 under "Business and
Properties - Legal Proceedings," to the extent that it
constitutes matters of law, summaries of legal matters or
legal proceedings, or legal conclusions, has been reviewed by
me and is, to my knowledge, correct in all material respects.
(xii) To my knowledge, except as disclosed in the
Form 10-K for the year ended December 31, 2002 under the
caption "Certain Relationships and Related Transactions,"
there are no persons with rights to have any securities of the
Company registered pursuant to the Registration Statement or
otherwise registered by the Company under the Act.
I have participated in conferences with
representatives of the Underwriters, officers and other
representatives of the Company, counsel for the Company and
representatives of the independent public accountants of the
Company at which the contents of the Prospectus and the
Registration Statement and related matters were discussed.
Given the limitations inherent in the role of general counsel
and the character of determinations involved in the
preparation of the Prospectus and the Registration Statement,
I am not passing upon and do not assume any responsibility for
the accuracy, completeness or fairness of the statements
contained in the Prospectus and the Registration Statement and
have made no independent check or verification thereof. On the
basis of the foregoing, no facts have come to my attention
which lead me to believe that (i) the Prospectus and the
Registration Statement, as of their respective dates or as of
the date hereof, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it
being understood that I express no comment with respect to the
financial statements, including the notes thereto, or any
other financial, reserve or statistical data found in or
derived from the internal accounting or other records of the
Company and its subsidiaries set forth or referred to in the
Prospectus and the Registration Statement) or (ii) there are
any material contracts or agreements required to be filed as
exhibits to the Registration Statement that are not filed as
required.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxx & Xxxxx, L.L.C., to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) The shares of Common Stock referred to in the
Registration Statement on Form S-1 (File No. 333-42876) under
Part II, Item 15 numbers (a)(1) through (a)(6) and (a)(9),
have been duly authorized and validly issued and are fully
paid and non-assessable; and none of such shares of capital
stock was issued in violation of any statutory preemptive
rights or, to my knowledge, contractual preemptive or other
similar rights of any securityholder of the Company.
In rendering such opinion, such counsel may rely, to the
extent he deems proper, on certificates of responsible officers of the
Company and public officials. Such opinion shall not state that it is
to be governed or qualified by, or that it is otherwise subject to, any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
(g) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxxx & Xxxxxx, Special Counsel to the Company
regarding FERC and environmental matters, to the effect that the
information stated in the Form 10-K for the year ended December 31,
2002 respecting the Regulation of Transportation of Oil, Regulation of
Transportation and Sale of Natural Gas, Regulation of Production and
Environmental Regulation is true and accurate in all material respects.
16
(h) The Representatives shall have received the opinion
contemplated in the Power of Attorney executed and delivered by each
Selling Stockholder and the opinions, dated such Closing Date, of
Xxxxxx, Xxxxxx & Xxxxxxxxx and Xxxxxxx, Xxxxxxx & Xxxxxxxx, counsel for
the Selling Stockholders, to the effect that:
(i) The applicable Selling Stockholder had valid and
unencumbered title to the Offered Securities delivered by such
Selling Stockholder on such Closing Date and had full right,
power and authority to sell, assign, transfer and deliver the
Offered Securities delivered by such Selling Stockholder on
such Closing Date hereunder; and the several Underwriters have
acquired valid and unencumbered title to the Offered
Securities purchased by them from such Selling Stockholders on
such Closing Date hereunder;
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be obtained or made by the applicable Selling
Stockholder for the consummation of the transactions
contemplated by the Custody Agreement or this Agreement in
connection with the sale of the Offered Securities sold by
such Selling Stockholders, except such as have been obtained
and made under the Act and such as may be required under state
securities laws;
(iii) The execution, delivery and performance of the
Custody Agreement and this Agreement and the consummation of
the transactions therein and herein contemplated will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the applicable Selling
Stockholders or any of their properties or any agreement or
instrument to which such Selling Stockholders are a party or
by which such Selling Stockholders are bound or to which any
of the properties of such Selling Stockholders are subject, or
the Partnership Agreement of such Selling Stockholders which
are partnerships; and
(iv) The Power of Attorney and related Custody
Agreement with respect to the applicable Selling Stockholder
has been duly authorized, executed and delivered by such
Selling Stockholder and constitute valid and legally binding
obligations of each such Selling Stockholder enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
and
(v) This Agreement has been duly authorized, executed
and delivered by the applicable Selling Stockholder.
(i) The Representatives shall have received from Xxxxx Xxxxx
L.L.P., counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to the incorporation of the Company,
the validity of the Offered Securities delivered on such Closing Date,
the Registration Statements, the Prospectus and other related matters
as the Representatives may require, and the Selling Stockholders and
the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(j) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b),
17
including payment of the applicable filing fee in accordance with Rule
111(a) or (b) under the Act, prior to the time the Prospectus was
printed and distributed to any Underwriter; and, subsequent to the date
of the most recent financial statements in the Prospectus, there has
been no material adverse change, nor any development or event involving
a prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(k) The Representatives shall have received a letter, dated
such Closing Date, of KPMG LLP meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(l) The Representatives shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments
thereto, of the Company, certified as of a recent date by the Secretary
of State of the State of Delaware, (ii) a certificate of good standing
for the Company, dated as of a recent date, from such Secretary of
State and (iii) a certificate, dated as of a recent date, of the
Secretary of State of each state in which the Company is qualified to
do business as a foreign corporation under the laws of such state.
(m) The Representatives shall have received (i) a copy of the
certificate or articles of incorporation (or similar organizational
document), including all amendments thereto, of each of the Company's
subsidiaries, certified as of a recent date by the Secretary of State
of the state in which such subsidiary is incorporated or organized,
(ii) a certificate of good standing for each of the Company's
subsidiaries, certified as of a recent date by the Secretary of State
of the state in which such subsidiary is incorporated or organized, and
(iii) a certificate, dated as of a recent date, of the Secretary of
State of each state in which each such subsidiary is qualified to do
business as a foreign corporation or other entity under the laws of
each such state.
(n) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters from each of the
executive officers and directors of the Company who are not Selling
Stockholders.
(o) The Custodian will to deliver to the Representatives a
letter stating that they will deliver to each Selling Stockholder a
United States Treasury Department Form 1099 (or other applicable form
or statement specified by the United States Treasury Department
regulations in lieu thereof) on or before January 31 of the year
following the date of this Agreement.
(p) At Closing Time, the Securities shall have been approved
for listing on the New York Stock Exchange, subject, in the case of
Securities to be sold by the Company, only to official notice of
issuance.
(q) The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(r) The Representatives shall have received from each of
Netherland, Xxxxxx & Associates, Inc. and Xxxxx Xxxxx Company, L.P.,
each independent petroleum engineers, letters dated, respectively, the
date of this Agreement and the Closing Date, in form and substance
satisfactory to the Representatives, each stating, as of the date of
such letter (or, with respect to matters involving changes or
developments since the respective dates as of which information
regarding the oil and natural gas reserves and future net cash flows is
given in the Prospectus, as of the date not more than three days prior
to the date of such letter), the conclusions and findings of such firm
with respect to the oil and natural gas reserves of the Company
estimated by such firm, as applicable, and such other matters as the
Representatives reasonably may request.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. the Representatives may in their sole
discretion waive on behalf of the Underwriters compliance with any
18
conditions to the obligations of the Underwriters hereunder, whether in respect
of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
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, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (c) below.
(b) The Selling Stockholders, jointly and severally, will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person who controls such Underwriter within the meaning of Section 15 of the
Act, against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary 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, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Selling
Stockholders will only indemnify the Underwriters to the extent that any
statements in or omissions from a Registration Statement or the Prospectus are
based on written information furnished to the Company by such Selling
Stockholder specifically for use therein.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 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 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in 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 reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company and each Selling
Stockholder in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of (i) the following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the fourth
paragraph under the caption "Underwriting" and the information contained in
paragraphs 11 and 12 under the caption "Underwriting."
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but
19
the failure to notify the indemnifying party shall not relieve it from any
liability that it may have under subsection (a), (b) or (c) above except to the
extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an 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 an indemnifying party of the commencement thereof, the
indemnifying party will 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 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. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such (i) settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Stockholders bear to the total underwriting discounts
and commissions received by the Underwriters. 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 amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
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 action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter (as
hereinafter defined) within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed a Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate
20
number of shares of Offered Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
number of shares of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date, the Representatives may make arrangements
satisfactory to the Company and the Selling Stockholders for the purchase of
such Offered Securities by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
the Representatives, the Company and the Selling Stockholders for the purchase
of such Offered Securities by other persons are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "UNDERWRITER" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company, the Selling Stockholders, and the Underwriters
pursuant to Section 7 shall remain in effect, and if any Offered Securities have
been purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Offered Securities by the Underwriters is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv), (v), (vi) or
(vii) of Section 6(c), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives c/o Credit Suisse First Boston LLC, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory Group, and
Xxxxxxx Xxxxx & Co., 0000 XxXxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, attention
of Xxx Xxxxxx with a copy to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
4 World Financial Center, New York, New York, 10080, attention: Head of CICG
Legal Department. If sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Energy Partners, Ltd., 000 Xx. Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxx 00000, Attention: Xxxx Xxxxx, or, if
sent to the Selling Stockholders or any of them, will be mailed, delivered or
telegraphed and confirmed to ________________________________ at
_______________________________; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly will be
binding upon all the Underwriters. _________________ will act for the Selling
Stockholders in connection with such transactions, and any action under or in
respect of this Agreement taken by ___________________________ will be binding
upon all the Selling Stockholders.
21
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
22
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
ENERGY PARTNERS, LTD.
By:
----------------------------------------
Xxxxxxx Xxxxxxxx
Chairman, President and
Chief Executive Officer
ENERGY INCOME FUND, L.P.
By: Its General Partner,
-----------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
EVERCORE CAPITAL PARTNERS L.P.
By: Evercore Partners L.L.C.,
its General Partner,
By:
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
EVERCORE CAPITAL PARTNERS (NQ) L.P.
By: Everore Partners L.L.C.,
its General Partner
By:
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
EVERCORE CAPITAL OFFSHORE PARTNERS L.P.
By: Evercore Partners L.L.C.,
its Investment General Partner,
By:
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
and
By: Evercore Offshore Partners Ltd.,
its Administrative General Partner
By:
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Director
23
EVERCORE CO-INVESTMENT PARTNERSHIP L.P.
By: Evercore Co-Investment G.P. L.L.C.,
its General Partner,
By: Evercore Partners L.L.C.,
its Managing Member,
By:
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
-------------------------------------------
Xxxxxxx X. Xxxxx
24
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON LLC
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX XXXXXX & XXXXX
INCORPORATED
Acting on behalf of themselves and as the
Representatives of the several
Underwriters.
By CREDIT SUISSE FIRST BOSTON LLC
By:
----------------------------------
25
SCHEDULE A
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES TO
SELLING STOCKHOLDER TO BE SOLD BE SOLD
------------------- --------------- -------------
Energy Income Fund, L.P. ..............................
Evercore Capital Partners L.P. ........................
Evercore Capital Partners (NQ) L.P. ...................
Evercore Capital Offshore Partners L.P. ...............
Evercore Co-Investment Partnership L.P. ...............
Xxxxxxx X. Xxxxx ......................................
--------------- -------------
Total ...............................................
=============== =============
SCHEDULE B
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston LLC. ..................................
Xxxxxxx Xxxxx & Co. ..............................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ...............
Xxxxxxxxx & Company, Inc. ........................................
Xxxxxxx Xxxx & Company L.L.C. ....................................
Xxxxxx Xxxx, a division of Xxxx Xxxxx Xxxx Xxxxxx, Inc. ..........
---------------
Total .............................................
===============
