EXHIBIT 1
WILLBROS GROUP, INC.
3,937,609 Shares
Common Stock
($.05 par value)
UNDERWRITING AGREEMENT
[ ], 1997
SBC WARBURG DILLON READ INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
XXXXXX SECURITIES CO.
as Managing Underwriters
c/o SBC Warburg Dillon Read Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Yorktown Energy Partners, L.P. ("Yorktown"), Concord Partners II, L.P.
("Concord II"), Concord Partners Japan Limited ("Concord Japan"), Lexington
Partners IV, L.P. ("Lexington"), Xxxxx University Third Century Fund ("Xxxxx")
and SBC Warburg Dillon Read Inc., as Agent ("SBC Warburg Dillon Read, as Agent"
and, collectively with Yorktown, Concord II, Concord Japan, Lexington and Xxxxx,
the "Selling Stockholders") propose to sell to the underwriters named in
Schedule A annexed hereto (the "Underwriters") an aggregate of 3,937,609 shares
(the "Firm Shares") of Common Stock, $.05 par value (the "Common Stock"), of
Willbros Group, Inc. (the "Company"). The Firm Shares are to be sold by the
Selling Stockholders in the respective amounts set forth under the caption
"Number of Firm Shares" in Schedule B annexed hereto. In addition, solely for
the purpose of covering over-allotments, the Company proposes to grant to the
Underwriters the option to purchase from the Company up to an additional 590,641
shares of Common Stock (the "Additional Shares"). The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the "Shares". The
Shares are described in the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the U.S.
Securities Act of 1933, as amended, and the rules and regulations thereunder
(the "Act"), with the Securities
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and Exchange Commission (the "Commission") a registration statement on Form S-3,
including a prospectus, relating to the Shares, which incorporates by reference
certain documents which the Company has filed or will file in accordance with
the provisions of the U.S. Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (the "Exchange Act"). The Company has furnished
to you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof or incorporated by reference
therein, and including any information contained in a prospectus subsequently
filed with the Commission pursuant to Rule 424(b) under the Act and deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Act, is herein called the "Registration Statement", and the
prospectus, including all documents incorporated therein by reference, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act or, if no such filing is required, the form of final prospectus included in
the Registration Statement at the time it became effective, is herein called the
"Prospectus".
The Company, the Selling Stockholders and the Underwriters agree as
follows:
1. (a) Sale and Purchase. Upon the basis of the warranties and
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representations and the other terms and conditions herein set forth, the Selling
Stockholders agree to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Selling
Stockholders the respective number of Firm Shares (subject to such adjustment as
you may determine to avoid fractional shares) which bears the same proportion to
the number of Firm Shares to be sold by the Selling Stockholders as the number
of Firm Shares set forth opposite the name of such Underwriter in Schedule A
annexed hereto bears to the total number of Firm Shares to be sold by the
Selling Stockholders, at a purchase price of $[ ] per Share. You shall
release the Firm Shares for public sale promptly after this Agreement becomes
effective. You may from time to time increase or decrease the public offering
price after the initial public offering to such extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the
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warranties and representations and the other terms and conditions herein set
forth, the Underwriters shall have the right to purchase, severally and not
jointly, from the Company ratably in accordance with the number of Firm Shares
to be purchased by each of them (subject to such adjustment as you shall
determine to avoid fractional shares), all or a portion of the Additional Shares
as may be necessary to cover over-allotments made in connection with the
offering of the Firm Shares, at the same purchase price per share to be paid by
the Underwriters to the Selling Stockholders for the Firm Shares. This option
may be exercised at any time (but not more than once) on or before the thirtieth
day following the date hereof, by written notice to the Company. Such notice
shall set forth the aggregate number of Additional Shares as to which the option
is being exercised, and the date and time when the Additional Shares are to be
delivered (such date and time being herein referred to as the "additional time
of purchase"); provided, however, that the additional time of purchase shall
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not be earlier than the time of purchase (as defined below) nor earlier than the
second business day/1/ after the date on which the option shall have been
exercised nor later than the third business day after the date on which the
option shall have been exercised. The number of Additional Shares to be sold to
each Underwriter shall be the number which bears the same proportion to the
aggregate number of Additional Shares being purchased as the number of Firm
Shares set forth opposite the name of such Underwriter on Schedule A hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as you may determine to eliminate fractional shares).
(b) Pursuant to powers of attorney granted by each Selling Stockholder
(the "Powers-of-Attorney"), W. Xxxxxx Xxxxxx, Xxxxx X. Xxxxxxxx and Xxxxx X.
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Xxxxxx will act as representatives of the Selling Stockholders. The foregoing
representatives (the "Representatives of the Selling Stockholders") are
authorized, on behalf of each Selling Stockholder, to execute any documents
necessary or desirable in connection with the sale of the Firm Shares to be sold
hereunder by each Selling Stockholder, to make delivery of the certificates for
such Firm Shares, to receive the proceeds of the sale of such Firm Shares, to
give receipts for such proceeds, to pay therefrom the expenses to be borne by
each Selling Stockholder in connection
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/1/ As used herein "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
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with the sale and public offering of the Firm Shares, to distribute the balance
of such proceeds to each Selling Stockholder in proportion to the number of Firm
Shares sold by each Selling Stockholder, to receive notices on behalf of each
Selling Stockholder and to take such other action as may be necessary or
desirable in connection with the transactions contemplated by this Agreement.
(c) Independent Underwriter. The Company hereby confirms its
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engagement of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx
Xxxxx"), and Xxxxxxx Xxxxx hereby confirms its agreement with the Company to
render services, as a "qualified independent underwriter" within the meaning of
Rule 2720(b)(15) of the Conduct Rules of the National Association of Securities
Dealers, Inc. ("NASD") with respect to the offering and sale of the Shares.
Xxxxxxx Xxxxx, solely in its capacity as qualified independent underwriter and
not otherwise, is referred to herein as the "QIU".
2. Payment and Delivery. Payment of the purchase price for the Firm
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Shares shall be made to the Selling Stockholders by Federal (same day) funds,
against delivery of the certificates for the Firm Shares to you through the
facilities of The Depository Trust Company (the "DTC") in the form of a global
certificate or certificates registered in the name of Cede & Co., the nominee of
the DTC, at the offices of Xxxxxx Xxxxxx & Xxxxxxx in New York City, for the
respective accounts of the Underwriters. Such payment and delivery shall be
made at 9:00 A.M., New York City time, on [ ], 1997 (unless another time
shall be agreed to by you and the Selling Stockholders or unless postponed in
accordance with the provisions of Section 10 hereof). The time at which such
payment and delivery are actually made is hereinafter sometimes called the "time
of purchase". Certificates for the Firm Shares shall be issued in the name of
Cede & Co. or in such names and in such denominations as you shall specify on
the second business day preceding the time of purchase. For the purpose of
expediting the checking of the certificates for the Firm Shares by you, the
Selling Stockholders agree to make such certificates available to you for such
purpose at least one full business day preceding the time of purchase.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Certificates for the Additional Shares shall
be issued in the name of Cede & Co. or in such names and in such denominations
as you shall specify on the second business day preceding
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the additional time of purchase. For the purpose of expediting the checking of
the certificates for the Additional Shares by you, the Company agrees to make
such certificates available to you for such purpose at least one full business
day preceding the additional time of purchase.
3. Representations and Warranties of the Company. The Company
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represents and warrants to each of the Underwriters that:
(a) the Registration Statement has been declared effective by the
Commission and the Registration Statement and the Prospectus fully comply
in all material respects with the provisions of the Act, and the
Registration Statement does not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Prospectus
does not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no warranty
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or representation with respect to any statement contained in the
Registration Statement or the Prospectus in reliance upon and in conformity
with information concerning the Underwriters and furnished in writing by or
on behalf of any Underwriter through you to the Company expressly for use
in the Registration Statement or the Prospectus; the documents incorporated
by reference in the Prospectus, at the time they were filed with the
Commission, complied in all material respects with the requirements of the
Exchange Act, and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading;
(b) the Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus and, as of the time of purchase
and the additional time of purchase, as the case may be, the Company shall
have an authorized capitalization as set forth in the Registration
Statement and the Prospectus; all of the issued and outstanding shares of
capital stock including Common Stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable; the
Company has been duly incorporated and is validly existing
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as a corporation in good standing under the laws of the Republic of Panama,
with full power and authority to own its properties and conduct its
business as described in the Registration Statement and the Prospectus, to
execute and deliver this Agreement and to issue and sell the Additional
Shares as herein contemplated;
(c) the Company and each of its subsidiaries (the "Subsidiaries") are
duly qualified or licensed by and are in good standing in each jurisdiction
in which they conduct their respective businesses and in which the failure
to be so licensed or qualified, individually or in the aggregate, could
have a material adverse effect on the operations, business or condition of
the Company and the Subsidiaries taken as a whole (a "Material Adverse
Effect"); and the Company and each of its Subsidiaries are in compliance in
all material respects with the laws, orders, rules, regulations and
directives issued or administered by such jurisdictions and in which the
failure to be so in compliance could have a Material Adverse Effect;
(d) neither the Company nor any of the Subsidiaries is in breach of,
or in default under (nor has any event occurred which with notice, lapse of
time, or both would constitute a breach of, or default under), its
respective charter or by-laws or other governing documents or in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, bank loan or
credit agreement or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which any of them is bound and
which could have a Material Adverse Effect, and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not conflict with, or result in any breach of or
constitute a default under (nor constitute any event which with notice,
lapse of time, or both would constitute a breach of, or default under), any
provisions of the charter or by-laws or other governing documents of the
Company or any of the Subsidiaries or under any provision of any license,
indenture, mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them or their respective properties may be bound
or affected, or under any federal, state, local or foreign law, regulation
or rule or any decree, judgment or order applicable to the Company or any
of the Subsidiaries;
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(e) this Agreement has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except as rights to indemnity and
contribution hereunder may be limited by securities laws and except as the
enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity;
(f) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in and
incorporated by reference in the Registration Statement and Prospectus and
the certificates for the Shares are in due and proper form and the holders
of the Shares will not be subject to personal liability by reason of being
such holders;
(g) no approval, authorization, consent or order of or filing with any
national, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and
sale of the Shares as contemplated hereby other than registration of the
Shares under the Act and the Exchange Act and any necessary qualification
under the securities or blue sky laws of the various jurisdictions in which
the Shares are being offered by the Underwriters;
(h) no person has the right, contractual or otherwise, to cause the
Company to issue to it, or register pursuant to the Act, any shares of
capital stock of the Company upon the issue and sale of the Shares to the
Underwriters hereunder, nor does any person have preemptive rights, rights
of first refusal or other rights to purchase any of the Shares, other than
such rights as have been waived prior to the sale of Shares pursuant to
this Agreement;
(i) KPMG Peat Marwick, whose reports on the consolidated financial
statements of the Company and the Subsidiaries are filed with the
Commission as part of the Registration Statement and Prospectus, are
independent public accountants as required by the Act and the applicable
published rules and regulations thereunder;
(j) each of the Company and the Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any national,
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state or local law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other persons, in order to
conduct its respective business, except where the absence of any such
license, authorization, consent, approval or filing could not have a
Material Adverse Effect; neither the Company nor any of the Subsidiaries is
in violation of, or in default under (nor has any event occurred which with
notice, lapse of time, or both would constitute a violation of or a default
under), any such license, authorization, consent or approval or any
national, state or local law, regulation or rule or any decree, order or
judgment applicable to the Company or any of the Subsidiaries the effect of
which could have a Material Adverse Effect;
(k) all legal or governmental proceedings, contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have
been so described or filed as required;
(l) except as described in the Registration Statement, there are no
actions, suits or proceedings pending or threatened against the Company or
any of the Subsidiaries or any of their respective properties, at law or in
equity, or before or by any national, state or local governmental or
regulatory commission, board, body, authority or agency which could result
in a judgment, decree or order having a Material Adverse Effect;
(m) the audited financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and the Subsidiaries as of the dates indicated and
the consolidated results of operations and changes in cash flows of the
Company and the Subsidiaries for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States, applied on a consistent basis
during the periods involved;
(n) the unaudited interim financial statements included in the
Registration Statement and the Prospectus present fairly the condensed
consolidated financial position of the Company and the Subsidiaries as of
the dates indicated and the condensed consolidated results of operations
and changes in cash flows of the Company and the Subsidiaries for the
periods specified, subject to normal
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year-end adjustments; such financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States, applied on a consistent basis during the periods involved;
(o) neither the Company nor the Subsidiaries, nor any director,
officer, agent, employee, or other person acting, with actual or apparent
authority, on behalf of the Company or the Subsidiaries has, at any
relevant time, directly or indirectly: (i) knowingly, unlawfully and
corruptly made contributions, gifts, expenditures for entertainment, or
other unlawful expenditures relating to political activity for the purpose
of obtaining or retaining business; (ii) knowingly, unlawfully and
corruptly made payments to government officials or employees or to
political parties or campaigns for the purpose of obtaining or retaining
business; (iii) violated any applicable provision of the U.S. Foreign
Corrupt Practices Act of 1977, as amended (the "FCPA"); (iv) violated any
applicable provision of U.S. "fraud and abuse legislation" or U.S. "anti-
kickback law"; or (v) made any other material payment in the nature of a
bribe, rebate, kickback, payoff or influence payment which was unlawful
under applicable law at the relevant time;
(p) the Company's internal accounting controls and procedures are
sufficient to provide reasonable assurance that the Company's transactions
are executed and recorded in accordance with the requirements of the FCPA;
(q) subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as may be
otherwise stated in the Registration Statement or Prospectus, there has not
been (i) any material adverse change, financial or otherwise, in the
business, properties, prospects, regulatory environment, results of
operations or condition (financial or otherwise), present or prospective,
of the Company and the Subsidiaries taken as a whole, (ii) any transaction,
which is material to the Company and the Subsidiaries taken as a whole,
contemplated or entered into by the Company or any of the Subsidiaries or
(iii) any obligation, contingent or otherwise, directly or indirectly
incurred by the Company or any of the Subsidiaries which is material to the
Company and the Subsidiaries taken as a whole;
(r) the Company has obtained the agreement of each of its directors
and executive officers, certain stockholders
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and each Subsidiary of the Company which has shares of Common Stock pledged
to it by employees or other persons, not to sell, contract to sell, grant
any option to sell or otherwise dispose of, directly or indirectly, any
shares of Common Stock or securities convertible into or exchangeable or
exercisable for shares of Common Stock or warrants or other rights to
purchase Common Stock for a period of 90 days after the date of the
Prospectus without the prior written consent of SBC Warburg Dillon Read;
(s) the Company is not an "enemy" or an "ally of the enemy" within the
meaning of Section 2 of the U.S. Trading with the Enemy Act, as amended;
and the Company is not in violation of, and the Company's use of the
proceeds from the sale of the Additional Shares as contemplated hereby will
not violate, the U.S. Trading with the Enemy Act, as amended, or any
executive orders, proclamations or regulations issued pursuant thereto,
including, without limitation, regulations administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (31 C.F.R.,
Subtitle B, Chapter V as amended);
(t) neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075 of the Florida Statutes; and
(u) the Company is not treated as a "controlled foreign corporation"
for U.S. federal income tax purposes under Section 957 of the U.S. Internal
Revenue Code of 1986, as amended (the "Code").
4. Representations and Warranties of the Selling Stockholders. Each
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Selling Stockholder, severally and not jointly, represents and warrants to each
Underwriter that:
(a) it now is, and at the time of delivery of the Firm Shares will be,
the lawful owner of the Firm Shares to be sold by it pursuant to this
Agreement and has, and at the time of delivery thereof will have, valid and
marketable title to the Firm Shares, and upon delivery of and payment for
the Firm Shares, purchased in good faith and without notice of any adverse
claims, the Underwriters will acquire valid and marketable title to the
Firm Shares free and clear of any claim, lien, encumbrance, security
interest, community property right, restriction on transfer or other defect
in title;
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(b) it has, and at the time of delivery of the Firm Shares will have,
full legal right, power and capacity, and any approval required by law
(other than those imposed by the Act and the securities or blue sky laws of
various jurisdictions in which the Shares are being offered by the
Underwriters), to sell, assign, transfer and deliver the Firm Shares in the
manner provided in this Agreement;
(c) this Agreement and the Custody Agreement between ChaseMellon
Shareholder Services, L.L.C., as custodian, and each of the Selling
Stockholders (the "Custody Agreement") have been duly executed and
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delivered by it and each is a legal, valid and binding agreement of such
Selling Stockholder enforceable in accordance with its respective terms,
except, in the case of this Agreement, as rights to indemnity and
contribution hereunder may be limited by securities laws and except as the
enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity;
(d) when the Registration Statement becomes effective and at all times
subsequent thereto through the later of the time of purchase or the
termination of the offering of the Shares, the Registration Statement and
Prospectus, and any supplements or amendments thereto as they relate to
such Selling Stockholder will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(e) such Selling Stockholder has duly and irrevocably authorized the
Representatives of the Selling Stockholders, on behalf of such Selling
Stockholder, to execute and deliver this Agreement and any other document
necessary or desirable in connection with the transactions contemplated
hereby and to deliver the Firm Shares to be sold by such Selling
Stockholder and receive payment therefor pursuant hereto; and
(f) the sale of the Firm Shares pursuant to this Agreement is not
prompted by any information concerning the Company which is not set forth
in the Prospectus.
5. Certain Covenants of the Company. The Company hereby agrees:
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(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such jurisdictions as you may designate and
to maintain such qualifications in effect so long as required for the
distribution of the Shares, provided that the Company shall not be required
to qualify as a foreign corporation or to consent to the service of process
under the laws of any such jurisdiction (except service of process with
respect to the offering and sale of the Shares); and to promptly advise you
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose;
(b) to make available to you in New York City, as soon as practicable
after the Registration Statement becomes effective, and thereafter from
time to time to furnish to the Underwriters, as many copies of the
Prospectus (or of the Prospectus as amended or supplemented if the Company
shall have made any amendments or supplements thereto after the effective
date of the Registration Statement) as the Underwriters may request for the
purposes contemplated by the Act;
(c) to advise you promptly and (if requested by you) to confirm such
advice in writing, (i) when the Registration Statement has become effective
and when any post-effective amendment thereto becomes effective and (ii) if
Rule 430A under the Act is used, when the Prospectus is filed with the
Commission pursuant to Rule 424(b) under the Act (which the Company agrees
to file in a timely manner under such Rules);
(d) to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the Registration
Statement or Prospectus or for additional information with respect thereto,
or of notice of institution of proceedings for, or the entry of a stop
order suspending the effectiveness of the Registration Statement and, if
the Commission should enter a stop order suspending the effectiveness of
the Registration Statement, to make every reasonable effort to obtain the
lifting or removal of such order as soon as possible; and to advise you
promptly of any proposal to amend or supplement the Registration Statement
or Prospectus, including by filing any document that would be
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incorporated therein by reference, and to file no such amendment or
supplement to which you shall object in writing;
(e) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement (i)
copies of any reports or other communications which the Company shall send
to its stockholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports filed
with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form
as may be designated by the Commission, and (iii) such other information as
you may reasonably request regarding the Company or its Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a prospectus
relating to the Shares is required to be delivered under the Act which, in
the judgment of the Company, would require the making of any change in the
Prospectus then being used, or in the information incorporated therein by
reference, so that the Prospectus would not include an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they are
made, not misleading, and, during such time, to prepare and furnish, at the
Company's expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change and to furnish you a copy of such proposed amendment or supplement
before filing any such amendment or supplement with the Commission;
(g) as soon as practicable and for the time period specified by Rule
158 under the Act, to make generally available to its securityholders, and
to deliver to you, an earnings statement of the Company that will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act;
(h) to furnish to you three (3) signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto and incorporated by reference
therein) and sufficient conformed copies of the foregoing (other than
exhibits) for distribution of a copy to each of the other Underwriters;
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(i) to furnish to you as early as practicable prior to the time of
purchase and the additional time of purchase, as the case may be, but not
later than two business days, in each case, prior thereto, a copy of the
latest available unaudited interim condensed consolidated financial
statements, if any, of the Company and its Subsidiaries which have been
read by the Company's independent certified public accountants, as stated
in their letter to be furnished pursuant to Section 8(f) of this Agreement;
(j) to use the net proceeds to the Company from the sale of the
Additional Shares, if the Underwriters exercise their over-allotment
option, in the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
(k) to furnish to you, before filing with the Commission subsequent to
the effective date of the Registration Statement and during the period
referred to in paragraph (f) above, a copy of any document proposed to be
filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(l) not to sell, contract to sell, grant any option to sell or
otherwise dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exchangeable or exercisable for shares of
Common Stock or warrants or other rights to purchase Common Stock or permit
the registration under the Act of any shares of Common Stock for a period
of 90 days after the date hereof, without the prior written consent of SBC
Warburg Dillon Read, except for: (i) the registration of the Shares and the
sales to the Underwriters pursuant to this Agreement; and (ii) grants of
options or issuances of Common Stock upon the exercise of outstanding
options pursuant to any of the Company's stock option plans or pursuant to
other benefit or incentive plans existing as of the date hereof; and
(m) to use its best efforts to cause the Additional Shares to be
listed on the New York Stock Exchange.
6. Certain Covenants of the Company and the Selling Stockholders. The
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Company and each of the Selling Stockholders agree with each Underwriter as
follows:
(a) The Company agrees that, whether or not the transactions
contemplated hereby are consummated or this Agreement is terminated, the
Company will pay all expenses,
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fees and taxes (other than (x) any transfer taxes and fees and
disbursements of counsel for the Underwriters except as set forth under
Section 7 hereof or clauses (iii) or (iv) of this Section 6(a) and (y) fees
payable by the Selling Stockholders pursuant to clause (b) hereof) in
connection with (i) the preparation and filing of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and any amendments
or supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriters and to dealers (including costs of mailing and
shipment), (ii) the issuance, sale and delivery of the Shares by the
Company and the Selling Stockholders, (iii) the word processing and/or
printing of this Agreement, any Agreement Among Underwriters, any dealer
agreements, any Statements of Information, the Custody Agreement and the
Powers of Attorney and the reproduction and/or printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including costs
of mailing and shipment), (iv) the qualification of the Shares for offering
and sale under state laws and the determination of their eligibility for
investment under state law as aforesaid (including the legal fees and
filing fees and other disbursements of counsel to the Underwriters) and the
word processing and/or printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers, (v)
any listing of the Additional Shares on the New York Stock Exchange, (vi)
the filing for review of the public offering of the Shares by the NASD, and
(vii) the performance of the Company's and the Selling Stockholders' other
obligations hereunder.
(b) Each Selling Stockholder will pay all underwriting discounts and
commissions, and will pay all transfer taxes and all fees and disbursements
of any counsel or accountant retained by it, in connection with the sale of
the Firm Shares.
(c) Each Selling Stockholder that will remain a stockholder of the
Company after the time of purchase agrees that it will not sell, grant any
option to sell or otherwise dispose of, directly or indirectly, any shares
of Common Stock or securities convertible into or exchangeable or
exercisable for shares of Common Stock or warrants or other rights to
purchase Common Stock for a period of 90 days after the date of the
Prospectus, without the prior written consent of SBC Warburg Dillon Read.
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7. Reimbursement of Underwriters' Expenses. If the Shares are not
---------------------------------------
delivered for any reason other than the termination of this Agreement pursuant
to the second paragraph of Section 9 hereof or the default by one or more of
the Underwriters in its or their respective obligations hereunder, the Company
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the fees and disbursements of their counsel.
8. Conditions of Underwriters' Obligations. The several obligations
---------------------------------------
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Stockholders on the
date hereof and at the time of purchase (and the several obligations of the
Underwriters at the additional time of purchase are subject to the accuracy of
the representations and warranties on the part of the Company on the date hereof
and at the time of purchase and at the additional time of purchase, as the case
may be (unless previously waived)), the performance by the Company and the
Selling Stockholders of their obligations hereunder and to the following
conditions:
(a) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Xxxxxx &
Xxxxxxx, A Professional Corporation, counsel for the Company, addressed to
the Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form satisfactory to Xxxxxx Xxxxxx & Xxxxxxx, counsel
for the Underwriters, stating that:
(i) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and Prospectus;
(ii) the Registration Statement and the Prospectus (except as to
the financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act;
(iii) the Registration Statement has become effective under the
Act, the Registration Statement on Form 8-A filed with the Commission
on July 19, 1996
-17-
is effective under the Exchange Act, and to such counsel's knowledge,
no stop order proceedings with respect thereto are pending or
threatened under the Act;
(iv) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Shares as contemplated hereby other
than registration of the Shares under the Act (except such counsel
need express no opinion as to any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters);
(v) the execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not conflict with, or result in
any breach of, or constitute a default under (nor constitute any event
which with notice, lapse of time, or both, would constitute a breach
of or default under), any provisions of the charter or by-laws or
other governing documents of the Company or, to such counsel's
knowledge, any of the Subsidiaries or under any provision of any
material license, indenture, mortgage, deed of trust, bank loan,
credit agreement or other agreement or instrument known to such
counsel to which the Company or any of its Subsidiaries is a party or
by which any of them or their respective properties may be bound or
affected, or under any law, regulation or rule or any decree, judgment
or order known to such counsel that is applicable to the Company or
any of the Subsidiaries;
(vi) the documents incorporated by reference in the Registration
Statement and Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed, when such amendment was
filed), complied as to form in all material respects with the Exchange
Act (except as to the financial statements and schedules and other
financial and statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion);
-18-
(vii) to such counsel's knowledge, neither the Company nor any of
the Subsidiaries is in breach of, or in default under (nor has any
event occurred which with notice, lapse of time, or both would
constitute a breach of, or default under), any license, indenture,
mortgage, deed of trust, bank loan or any other agreement or
instrument to which the Company or any of its Subsidiaries is a party
or by which any of them or their respective properties may be bound or
affected or under any law, regulation or rule or any decree, judgment
or order applicable to the Company or any of its Subsidiaries;
(viii) to such counsel's knowledge, there are no contracts,
licenses, agreements, leases or documents of a character which are
required to be filed as exhibits to the Registration Statement or to
be summarized or described in the Prospectus which have not been so
filed, summarized or described;
(ix) to such counsel's knowledge, there are no actions, suits or
proceedings pending or threatened against the Company or any of the
Subsidiaries or any of their respective properties, at law or in
equity or before or by any commission, board, body, authority or
agency which are required to be described in the Prospectus but are
not so described;
(x) the Additional Shares comply with the additional listing
requirements of the New York Stock Exchange and have been approved for
such additional listing with the New York Stock Exchange subject only
to notice of issuance at or prior to the additional time of purchase;
and
(xi) the Company is not an "investment company" within the meaning
of the U.S. Investment Company Act of 1940, as amended, nor is the
Company a holding company or a subsidiary of a holding company under
the U.S. Public Utility Holding Company Act of 1935.
Such counsel shall be entitled to rely on certificates of public
officials, the Selling Stockholders and officers of the Company with
respect to certain factual matters upon which its opinion may be based.
Such counsel may state that the expression "to such counsel's
knowledge" means that after considering the ac-
-19-
tual knowledge of those attorneys in such counsel's firm who have given
substantive attention to the Company's affairs, such counsel finds no
reason to believe that the opinions expressed therein are factually
incorrect.
In addition, such counsel shall state that such counsel have
participated in conferences with officers and other representatives of the
Company, representatives of the Selling Stockholders, representatives of
the independent public accountants of the Company and representatives of
the Underwriters at which the contents of the Registration Statement and
Prospectus were discussed and, although such counsel is not passing upon
and does not assume responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
Prospectus (except as and to the extent stated in subparagraph (i) above),
on the basis of the foregoing (relying as to materiality to a large extent
upon the opinions of officers and other representatives of the Company and
the Selling Stockholders) nothing has come to the attention of such counsel
that leads them to believe that the Registration Statement or any amendment
thereto at the time such Registration Statement or amendment became
effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus or any
supplement thereto at the date of such Prospectus or such supplement, and
at all times up to and including the time of purchase or additional time of
purchase, as the case may be, 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 (it being understood that such
counsel need not express any comment with respect to the financial
statements and schedules and other financial and statistical data found in
or derivable from the financial or internal records of the Company and the
Subsidiaries included in the Registration Statement or Prospectus).
In rendering such opinions, such counsel may rely, as to matters
governed by the laws of jurisdictions other than the United States, upon
the opinions of foreign counsel to the Company and the Subsidiaries, which
counsel shall be reasonably acceptable to the Underwriters.
-20-
(b) The Selling Stockholders shall furnish to you at the time of
purchase an opinion of their counsel (which may be one or more firms),
addressed to the Underwriters and dated the time of purchase, with
reproduced copies for each of the other Underwriters, and in form and
substance satisfactory to Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Underwriters, stating that:
(i) each of this Agreement, the Custody Agreement and the
Power of Attorney has been duly executed and delivered by or on behalf
of each of the Selling Stockholders;
(ii) each Selling Stockholder has full legal right and power,
and has obtained any authorization or approval required by law (other
than those imposed by the Act and the securities or blue sky laws of
certain jurisdictions), to sell, assign, transfer and deliver the
Shares to be sold by it in the manner provided in this Agreement;
(iii) assuming the Underwriters are purchasers in good faith
without notice of any adverse claim, upon payment for and delivery of
the Firm Shares in accordance with this Agreement, the Underwriters
will acquire all of the rights of the Selling Stockholders in the Firm
Shares and will also acquire their interest in the Firm Shares free of
any adverse claim (within the meaning of Section 8-302 of the Uniform
Commercial Code);
(iv) each Selling Stockholder has duly authorized the execution
and delivery of this Agreement, the Custody Agreement and the Power of
Attorney and any other document necessary or desirable in connection
with the transactions contemplated hereby and the delivery of the Firm
Shares;
(v) each of the Representatives of the Selling Stockholders
has been duly authorized by each Selling Stockholder to execute and
deliver on behalf of each Selling Stockholder this Agreement and any
other document necessary or desirable in connection with the
transactions contemplated hereby and to deliver the Firm Shares to be
sold by the Selling Stockholders and receive payment therefor pursuant
hereto; and
-21-
(vi) to such counsel's knowledge, the statements in the Prospectus
under the caption "Principal and Selling Stockholders", insofar as
such statements constitute a summary of the matters referred to
therein with respect to the Selling Stockholders, present fairly the
information called for with respect to such matters.
Such counsel may state that the expression "to such counsel's
knowledge" means that after considering the actual knowledge of those
attorneys in such counsel's firm who have given substantive attention to
the Selling Stockholders' affairs, such counsel finds no reason to believe
that the opinions expressed therein are factually incorrect.
(c) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Xxxxx,
Fabrega & Fabrega, Panamanian counsel to the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form satisfactory to Xxxxxx Xxxxxx & Xxxxxxx, counsel
for the Underwriters, stating that:
(i) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the Republic of
Panama, with full corporate power and authority to own its properties
and conduct its businesses as described in the Registration Statement
and the Prospectus, to execute and deliver this Agreement and to
issue, sell and deliver the Additional Shares as herein contemplated;
and to such counsel's knowledge, no proceeding has been instituted by
any relevant regulatory authority in the Republic of Panama for the
dissolution or termination of the corporate existence of the Company;
(ii) each of the Panama Subsidiaries has been duly incorporated and
is validly existing as a corporation in good standing under the laws
of the Republic of Panama, with full corporate power and authority to
own its respective properties and conduct its respective businesses;
and, to such counsel's knowledge, no proceeding has been instituted by
any relevant regulatory authority in the Republic of Panama for the
dissolution or termination of the corporate existence of any such
Subsidiary;
-22-
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the Additional Shares, if and when issued and delivered to and
paid for by the Underwriters, will be duly and validly authorized and
issued and will be fully paid and non-assessable;
(v) the Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus; the outstanding shares of
capital stock of the Company have been duly and validly authorized and
issued, and are fully paid, non-assessable and free from statutory and
contractual preemptive rights; the Additional Shares, when issued,
will be free of statutory and contractual preemptive rights; the
certificates for the Firm Shares or the Additional Shares, as the case
may be, are in due and proper form and the holders of the Firm Shares
or the Additional Shares will not be subject to personal liability by
reason of being such holders;
(vi) to such counsel's knowledge, (A) the businesses of the Company
and the Panama Subsidiaries has been conducted in all material
respects in compliance with all applicable laws, rules and regulations
of the Republic of Panama; and (B) the Company is not in violation of
or conflict with any term or provision of its charter or by-laws or
other governing documents and neither the Company nor any of the
Panama Subsidiaries is in violation of any franchise, license, permit,
judgment, decree, order, statute, rule or regulation of the Republic
of Panama where the consequences of such violation could have a
material adverse effect on the business, financial condition or
results of operations of the Company and the Subsidiaries, taken as a
whole;
(vii) the execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
hereby (including, without limitation, the issuance and sale of the
Additional Shares) will not violate the charter or by-laws or other
governing documents of the Company
-23-
or any applicable law, rule or administrative regulation of or in the
Republic of Panama, or any decree known to such counsel of any court
or governmental agency or governmental authority of or in the Republic
of Panama having jurisdiction over the Company or the Subsidiaries or
any of their properties, except for such violations as would not,
individually or in the aggregate, have a material adverse effect on
the business, financial condition or results of operations of the
Company and the Subsidiaries, taken as a whole;
(viii) no approval, authorization, consent or order of or filing,
registration or qualification with any governmental agency or
authority of or within the Republic of Panama is required in
connection with the execution and delivery by the Company of this
Agreement and the consummation of the transactions contemplated hereby
(including, without limitation, the issuance and sale of the
Additional Shares);
(ix) the statements made in the Registration Statement and the
Prospectus, to the extent they constitute summaries of the terms of
the Company's charter and by-laws (including the terms of the
Company's capital stock) or matters of Panamanian law (including
without limitation the statements contained in the Registration
Statement and the Prospectus under the captions "Certain Income Tax
Considerations" and "Enforceability of Civil Liabilities Under the
Federal Securities Laws"), are fair summaries of such documents and
laws and are accurate in all material respects;
(x) no stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the Republic of Panama or to any
political subdivision or taxing authority thereof or therein in
connection with the purchase by the Underwriters of the Shares or the
resale thereof as contemplated by the Prospectus; and all dividends
and other distributions paid on or in respect of the Shares to all
persons whether residents or non-residents of the Republic of Panama
will not be subject to Panamanian income, withholding or other taxes;
-24-
(xi) under the laws of the Republic of Panama, the submission by the
Company to the jurisdiction of any federal or state court sitting in
the County of New York, State of New York, U.S.A., the appointment by
the Company of CT Corporation System as its agent to receive service
of process in the United States and the designation of the law of the
State of New York, U.S.A., to apply to this Agreement are binding upon
the Company and, if properly brought to the attention of the court in
accordance with the laws of the Republic of Panama, would be
enforceable in any judicial proceeding in the Republic of Panama;
(xii) the indemnification and contribution provisions set forth in
Section 11 of this Agreement do not contravene Panamanian law or
public policy;
(xiii) the courts of the Republic of Panama will observe and give
effect to the choice of New York law as the governing law of this
Agreement;
(xiv) the courts of the Republic of Panama should recognize and
enforce a final judgment of a U.S. federal or state court of competent
jurisdiction sitting in the County of New York in respect of any
amount payable by the Company under this Agreement or arising out of
or based upon the offering of Shares contemplated by this Agreement,
provided that such judgment conforms with the requirements of the laws
of the Republic of Panama for the enforcement of foreign judgments,
which require that (A) such judgment be in respect of an action in
--
personam, (B) notice of the action shall have been served personally
---------
on the defendant or its agent within the jurisdiction of the court,
(C) the obligation in respect of which the judgment is given be lawful
in the Republic of Panama, (D) the copy of the judgment to be enforced
in the Republic of Panama shall have been authenticated by a consular
officer of the Republic of Panama, (E) the judgment being enforced not
be contrary to the public policy of the Republic of Panama, and (F)
the court, the enforcement of the judgment of which is being sought,
grant reciprocity to the enforcement of judgments of courts of the
Republic of Panama;
(xv) assuming that the signatures of the parties are authenticated
by a notary public and the notary's signature is acknowledged with the
apostille of the
-00-
Xxxxx Xxxxxxxxxx, and assuming that stamp taxes of U.S.$1.00 for each
U.S.$1,000 of the purchase price are paid prior to filing this
Agreement in evidence before a Panama court, and assuming that the
same is translated into the Spanish language by a certified
translator, this Agreement is in proper legal form for enforcement
against the Company in the Republic of Panama and any Underwriter
would be entitled to xxx as plaintiff in the courts of the Republic of
Panama for the enforcement of its respective rights against the
Company pursuant to or arising under this Agreement, and such access
will not be subject to any conditions which are not applicable to
Panamanian persons; and
(xvi) neither the Company nor any of its assets is entitled to
immunity from suit, execution, attachment or other legal process in
the Republic of Panama by reason of sovereign immunity or otherwise.
Such counsel shall be entitled to rely on certificates of public
officials, the Selling Stockholders and officers of the Company with
respect to certain factual matters upon which its opinion may be based.
Such counsel may state that the expression "to such counsel's
knowledge" means that after considering the actual knowledge of those
attorneys in such counsel's firm who have given substantive attention to
the Company's affairs, such counsel finds no reason to believe that the
opinions expressed therein are factually incorrect.
(d) the Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Hall,
Estill, Hardwick, Gable, Golden & Xxxxxx, P.C., special United States tax
counsel to the Company, addressed to the Company, which states that such
opinion may be relied upon by the Underwriters, and each dated the time of
purchase or the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form
satisfactory to Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters,
stating that, based on the limitations and qualifications set forth
therein, the Company will not be treated as a controlled foreign
corporation for federal income tax purposes under Section 957 of the Code.
-26-
(e) the Company shall furnish to you at the time of opinions of other
counsel with respect to each of the Subsidiaries listed on Schedule C
hereto, addressed to the Underwriters, and dated the time of purchase, with
reproduced copies for each of the other Underwriters and in form and
substance satisfactory to Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Underwriters;
(f) You shall have received from KPMG Peat Marwick letters dated,
respectively, the date of this Agreement and the time of purchase and
additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for each of the Underwriters) in the
forms heretofore approved by the Managing Underwriters.
(g) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion of
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, as to the
matters referred to in subparagraph (iii) of Section 8(a) above.
In addition, such counsel shall state that such counsel have
participated in conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the Selling
Stockholders, counsel for the Selling Stockholders, representatives of the
independent public accountants of the Company and representatives of the
Underwriters at which the contents of the Registration Statement and
Prospectus and related matters were discussed and, although such counsel is
not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Prospectus, on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of officers and other
representatives of the Company and the Selling Stockholders), no facts have
come to the attention of such counsel which lead them to believe that the
Registration Statement or any amendment thereto at the time such
Registration Statement or amendment became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of its date or any supplement thereto
as of its date contained an untrue statement of a material fact
-27-
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 (it being understood that such
counsel need not express any comment with respect to the financial
statements and schedules and other financial and statistical data found in
or derivable from the financial or internal records of the Company and the
Subsidiaries included in the Registration Statement or Prospectus).
In rendering such opinions, such counsel need not express any opinion
with regard to the application of laws of any jurisdiction other than the
federal law of the United States and the laws of the State of New York.
(h) No amendment or supplement to the Registration Statement or
Prospectus, including documents deemed to be incorporated by reference
therein, shall be filed prior to the time the Registration Statement
becomes effective to which you object in writing.
(i) The Registration Statement shall become effective at or before
5:00 P.M., New York City time on the date of this Agreement, or if Rule
430A under the Act is used, the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act (but not later than 5:00
P.M., New York City time, on the second full business day after the date of
this Agreement), unless a later time shall be agreed to by the Company, the
Selling Stockholders and you in writing or by telephone, confirmed in
writing; provided, however, that the Company, the Selling Stockholders and
-------- -------
you and any group of Underwriters, including you, who have agreed hereunder
to purchase in the aggregate at least 50% of the Firm Shares may, from time
to time, agree on a later date.
(j) Prior to the time of purchase or the additional time of purchase,
as the case may be, (i) no stop order with respect to the effectiveness of
the Registration Statement shall have been issued under the Act or
proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the
Registration Statement and all amendments thereto, or modifications
thereof, if any, shall not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and (iii) the Prospectus and
all amendments or supplements thereto, or modifications thereof, if any,
shall not contain an untrue
-28-
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
(k) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, (i) no
material change, financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the business, condition or
prospects of the Company and the Subsidiaries taken as a whole shall occur
or become known and (ii) no transaction which could reasonably be expected
to have a Material Adverse Effect has been entered into by the Company or
any of its Subsidiaries.
(l) The Company shall, at the time of purchase or additional time of
purchase, as the case may be, deliver to you a certificate of two of its
executive officers, reasonably satisfactory to you, to the effect that the
representations and warranties of the Company as set forth in this
Agreement are true and correct as of such date and to the effect that the
conditions set forth in Sections 8(h) and (i) above have been met.
(m) You shall have received signed letters, dated the date of this
Agreement, from each of the officers and directors of the Company, certain
stockholders and each Subsidiary of the Company which has shares of Common
Stock pledged to it by employees or other persons to the effect that such
persons shall not sell, contract to sell, grant any option to sell or
otherwise dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exchangeable or exercisable for shares of
Common Stock or warrants or other rights to purchase Common Stock except as
permitted hereunder for a period of 90 days after the date of the
Prospectus without the prior written consent of SBC Warburg Dillon Read.
(n) The Company and the Selling Stockholders shall have furnished to
you such other documents and certificates as to the accuracy and
completeness of any statement in the Registration Statement and the
Prospectus as of the time of purchase and the additional time of purchase,
as the case may be, as you may reasonably request.
(o) The Company and the Selling Stockholders shall have performed such
of their respective obligations under
-29-
this Agreement as are to be performed by the terms hereof at or before the
time of purchase and at or before the additional time of purchase, as the
case may be.
(p) The Additional Shares shall have been approved for additional
listing on the New York Stock Exchange, subject only to notice of issuance
at or prior to the additional time of purchase.
(q) The Selling Stockholders shall, at the time of purchase, deliver
to you a certificate of the Representatives of the Selling Stockholders,
reasonably satisfactory to you, to the effect that the representations and
the warranties of the Selling Stockholders as set forth in this Agreement
have been met and they are true and correct as of such date.
(r) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Shares, and the
Prospectus and all other legal matters relating to this Agreement, the
Shares and the transactions contemplated hereby shall be satisfactory in
all reasonable respects to you.
9. Effective Date of Agreement; Termination. This Agreement shall
----------------------------------------
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Shares, if, at any time prior to the time of purchase or, with
respect to the purchase of any Additional Shares, the additional time of
purchase, as the case may be, trading in securities on the New York Stock
Exchange shall have been suspended or minimum prices shall have been established
on the New York Stock Exchange, or if a banking moratorium shall have been
declared either by the United States or New York State authorities, or if the
United States shall have declared war in accordance with its constitutional
processes or there shall have occurred any material outbreak or escalation of
hostilities or other national or international calamity or crisis of such
magnitude in its effect on the financial markets of the United States as, in
your judgment or in the judgment of such group of Underwriters, to make it
impracticable to market the Shares.
-30-
If you or any group of Underwriters elects to terminate this agreement
as provided in this Section 9, the Company, the Representatives of the Selling
Stockholders and each other Underwriter shall be notified promptly by letter or
telegram.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company or the
Selling Stockholders, as the case may be, shall be unable to comply with any of
the terms of this Agreement, the Company or the Selling Stockholders, as the
case may be, shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 6(a), 7 and 11 hereof), and the
Underwriters shall be under no obligation or liability to the Company and the
Selling Stockholders under this Agreement (except to the extent provided in
Section 11 hereof) or to one another hereunder.
10. Increase in Underwriters' Commitments. If any Underwriter shall
-------------------------------------
default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate amount of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all non-
defaulting Underwriters pro rata in proportion to the aggregate number of Firm
Shares set opposite the names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Selling Stockholders agree with the non-defaulting Underwriters
that they will not sell any Firm Shares hereunder unless all of the Firm Shares
are purchased by the Underwriters (or by substituted Underwriters selected by
you with the approval of the Company and the Selling Stockholders or selected by
the Company and the Selling Stockholders with your approval).
-31-
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term Underwriter as used in this agreement shall refer to and
include any Underwriter substituted under this Section 10 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
11. Indemnity by the Company, the Selling Stockholders and the
----------------------------------------------------------
Underwriters. (a) The Company and the Selling Stockholders jointly and
------------
severally agree to indemnify, defend and hold harmless each Underwriter and any
person who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, from and against any loss, expense, liability
or claim (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such controlling person may incur under
the Act, the Exchange Act or otherwise insofar as such loss, expense, liability
or claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus (the term Prospectus for the purpose of this
Section 11 being deemed to include any Preliminary Prospectus, the Prospectus
and the Prospectus as amended or supplemented by the Company), or arises out of
or is based upon any omission or alleged omission to state a material fact
required to be stated in either such Registration Statement or Prospectus or
necessary to make the statements made therein not misleading, except insofar as
any such loss, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information furnished in writing by any Underwriter through
you to the Company expressly for use with reference to such Underwriter in such
Registration Statement or such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information required to be stated in either such Registration Statement or
Prospectus or necessary to make such information not misleading; provided,
--------
however, that the indemnity
-------
-32-
agreement contained in this Section 11(a) with respect to any Preliminary
Prospectus or amended Preliminary Prospectus shall not inure to the benefit of
any Underwriter (or to the benefit of any person controlling such Underwriter)
from whom the person asserting any such loss, expense, liability or claim
purchased the Shares which are the subject thereof if the Prospectus corrected
any such alleged untrue statement or omission and if such Underwriter failed to
send or give a copy of the Prospectus to such person at or prior to the written
confirmation of the sale of such Shares to such person; provided, further,
-------- -------
that no Selling Stockholder shall be responsible, either pursuant to this
indemnity or as a result of any breach of this Agreement, for losses, expenses,
liability or claims arising out of or based upon such untrue statement or
omission or allegation thereof based upon information furnished by any party
other than such Selling Stockholder and, in any event, no Selling Stockholder
shall be responsible, either pursuant to this indemnity or as a result of any
breach of this Agreement, for losses, expenses, liability or claims for an
amount in excess of the proceeds to be received by such Selling Stockholder
(before deducting expenses) from the sale of Firm
Shares hereunder.
The Company and the Selling Stockholders, jointly and severally, also
agree to indemnify and hold harmless the QIU and such person, if any, who
controls the QIU within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments incurred as a result of the QIU's participation as a
"qualified independent underwriter" within the meaning of Rule 2720(b)(15) of
the NASD Conduct Rules; provided, however, that the indemnity agreement
-------- -------
contained in this Section 11(a) with respect to any Preliminary Prospectus or
amended Preliminary Prospectus shall not inure to the benefit of the QIU (or to
the benefit of any person controlling the QIU) from whom the person asserting
any such loss, expense, liability or claim purchased the Shares which are the
subject thereof if the Prospectus corrected any such alleged untrue statement or
omission and if the QIU failed to send or give a copy of the Prospectus to such
person at or prior to the written confirmation of the sale of such Shares to
such person; provided, further, that no Selling Stockholder shall be
-------- -------
responsible, either pursuant to this indemnity or as a result of any breach of
this Agreement, for losses, expenses, liability or claims arising out of or
based upon such untrue statement or omission or allegation thereof based upon
information furnished by any party other than such Selling Stockholder and, in
any event, no Selling Stockholder shall be responsible, either pursuant
-33-
to this indemnity or as a result of any breach of this Agreement, for losses,
expenses, liability or claims for an amount in excess of the proceeds to be
received by such Selling Stockholder (before deducting expenses) from the sale
of Firm Shares hereunder.
If any action is brought against an Underwriter or controlling person
in respect of which indemnity may be sought against the Company or any Selling
Stockholder pursuant to the foregoing paragraphs, such Underwriter shall
promptly notify the Company and such Selling Stockholder in writing of the
institution of such action and the Company or such Selling Stockholder, as the
case may be, shall assume the defense of such action, including the employment
of counsel and payment of expenses. Such Underwriter or such controlling person
shall have the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of such
Underwriter or of such controlling person unless the employment of such counsel
shall have been authorized in writing by the Company or such Selling Stockholder
in connection with the defense of such action or the Company or such Selling
Stockholder shall not have employed counsel to have charge of the defense of
such action or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from or
additional to those available to the Company or such Selling Stockholder (in
which case the Company or such Selling Stockholder shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Company or such Selling Stockholder, as the case may be, and paid as incurred
(it being understood, however, that the Company or such Selling Stockholder
shall not be liable for the expenses of more than one separate counsel in any
one action or series of related actions in the same jurisdiction representing
the indemnified parties who are parties to such action); provided, that if
--------
indemnity is sought pursuant to the second paragraph of this Section 11(a),
then, in addition to such counsel for the indemnified parties, the indemnifying
party shall be liable for the reasonable fees and expenses of not more than one
separate counsel (in addition to any necessary local counsel) for the QIU in its
capacity as a "qualified independent underwriter" and all persons, if any, who
control the QIU within the meaning of Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934 if, in the reasonable judgment of the QIU there
may exist a conflict of interest between the QIU and the other indemnified
parties. In the case of any such separate counsel for the QIU and such control
persons of
-34-
the QIU, such counsel shall be designated in writing by the QIU. Anything in
this paragraph (a) to the contrary notwithstanding, neither the Company nor any
Selling Stockholder shall be liable for any settlement of any such claim or
action effected without its written consent (unless the Company and such Selling
Stockholder shall be in breach of their obligation to pay fees and expenses
pursuant to this Agreement, in which case the provisions of this paragraph (a)
shall apply without regard to this sentence).
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, each Selling Stockholder and
any person who controls the Company or any Selling Stockholder within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company, any Selling Stockholder
or any such person may incur under the Act or otherwise, insofar as such loss,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use with reference to such Underwriter
in the Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof by the Company) or in a Prospectus, or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated either
in such Registration Statement or Prospectus or necessary to make such
information not misleading.
If any action is brought against the Company, any Selling Stockholder
or any such person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Company, such Selling
Stockholder or such person shall promptly notify such Underwriter in writing of
the institution of such action and such Underwriter shall assume the defense of
such action, including the employment of counsel and payment of expenses. The
Company, such Selling Stockholder or such person shall have the right to employ
its own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Company, such Selling Stockholder or such person
unless the employment of such counsel shall have been authorized in writing by
such Underwriter in connection with the defense of such action or such
Underwriter shall not have employed counsel to have charge of the defense of
such action or such indemnified party or parties
-35-
shall have reasonably concluded that there may be defenses available to it or
them which are different from or additional to those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such action on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by such Underwriter
and paid as incurred (it being understood, however, that such Underwriter shall
not be liable for the expenses of more than one separate counsel in any one
action or series of related actions in the same jurisdiction representing the
indemnified parties who are parties to such action). Anything in this paragraph
(b) to the contrary notwithstanding, no Underwriter shall be liable for any
settlement of any such claim or action effected without the written consent of
such Underwriter.
(c) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 11 in respect of any losses, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, expenses, liabilities or claims
(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 hand from the offering of the Shares 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 of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
expenses, liabilities or claims, 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 proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters. The Company and the
Underwriters agree that Xxxxxxx Xxxxx will not receive any additional benefits
hereunder for serving as QIU in connection with the offering and sale of the
Shares. The relative fault of the Company and the Selling Stockholders on the
one hand and of the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue statement or
-36-
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company, by the Selling Stockholders or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, expenses,
liabilities and claims referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any claim or action.
(d) The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
11 were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in subsection (c)
above. Notwithstanding the provisions of this Section 11, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by such Underwriter 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
statements or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 11 are several in proportion to their
respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 11 and the covenants, warranties and representations of the Company and
the Selling Stockholders contained in this Agreement shall remain in full force
and effect regardless of any investigation made by or on behalf of any
Underwriter, or any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf of
the Company, its directors and officers, the Selling Stockholders or any person
who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. The Company, each Selling
Stockholder and each Underwriter agree promptly to notify the others of the
commencement of any litigation or proceeding against it and, in the case of the
Company, against any of the Company's officers and directors in connection with
the issuance and sale of the Shares, or in connection with the Registration
Statement or Prospectus.
-37-
(f) The Company acknowledges for all purposes under this Agreement
(including, without limitation, this Section 11) that the statements set forth
in (i) the first sentence of the last paragraph of text on the cover page of the
Prospectus concerning the terms of the offering by the Underwriters, (ii) the
last paragraph on page 2 of the Prospectus concerning stabilization and
overallotment by the Underwriters, (iii) the fourth paragraph of text under the
caption "Underwriting" in the Prospectus concerning the terms of the offering by
the Underwriters, and (iv) the last paragraph of text under the caption
"Underwriting" in the Prospectus concerning confirmation of sales to accounts
over which the Underwriters exercise discretionary authority, constitute the
only written information furnished to the Company by or on behalf of the
Underwriters through you or your counsel expressly for use in the Registration
Statement, any Preliminary Prospectus, or the Prospectus (or any amendment or
supplement to any of them) and that no Underwriter shall be deemed to have
provided any information (and therefore are not responsible for any statements
or omissions) pertaining to the any agreement or arrangement with respect to any
party other than such Underwriter.
12. Notices. Except as otherwise herein provided, all statements,
-------
requests, notices and agreements shall be in writing or by telegram and, (a) if
to the Underwriters, shall be sufficient in all respects if delivered or sent to
SBC Warburg Dillon Read Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
U.S.A., Attention: Syndicate Department; (b) if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices of
the Company at Willbros Group, Inc., Xxxxxxxx Xxxx Xxxxxxxx, 00xx Xxxxxx, 0xx
Xxxxx, P.O. Box 850048, Panama 5, Republic of Panama, with a copy to Willbros
USA, Inc., 0000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000, U.S.A.,
Attention: President; and (c) if to the Selling Stockholders, shall be
sufficient in all respects if delivered or sent to [________], Attention:
[______].
13. Agent for Service. The Company hereby irrevocably (i) designates
-----------------
and appoints CT Corporation System at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X., as its authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to this Agreement that may be instituted
in any federal or state court in the State of New York or brought under federal
or state securities laws;
-38-
(ii) submits to the jurisdiction of any such court in any such suit or
proceeding, and (iii) irrevocably agrees that service of process upon
CT Corporation System and written notice of said service to the Company, shall
be deemed in every respect effective service of process upon the Company in any
such suit or proceeding. The Company agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
Corporation Trust System in full force and effect; provided, however, that the
-------- -------
Company may, by written notice to the Managing Underwriters, designate such
additional or alternative agent for service of process that (i) maintains an
office located in the Borough of Manhattan, City of New York in the State of New
York, U.S.A., and (ii) is either (x) counsel for the Company or (y) a corporate
service company which acts as agent for service of process for other persons in
the ordinary course of its business. Such written notice shall identify the
name of such agent for process and the address of the office of such agent for
process in the Borough of Manhattan, City of New York, State of New York, U.S.A.
14. Construction. This Agreement shall be governed by, and construed
-------------
in accordance with, the laws of the State of New York, U.S.A. The Section
headings in this Agreement have been inserted as a matter of convenience of
reference and are not a part of this Agreement.
15. Parties at Interest. The agreement herein set forth has been and
-------------------
is made solely for the benefit of the Underwriters, the Company, the Selling
Stockholders and the controlling persons, directors and officers referred to in
Section 11 hereof, and their respective successors, assigns, executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
16. Counterparts. This Agreement may be signed by the parties in
------------
counterparts which together shall constitute one and the same agreement among
the parties.
17. No Offers in Panama. The Shares have not been and will not be
-------------------
registered with the National Securities Commission of the Republic of Panama in
accordance with the applicable provisions of Cabinet Decree No. 247 of 1970.
Accordingly, the Underwriters will not offer, sell or deliver any of the Shares
in the Republic of Panama.
If the foregoing correctly sets forth the understanding among the
Company, the Selling Stockholders and the Underwriters, please so indicate in
the space provided below for such purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Company, the Selling
Stockholders and the Underwriters, severally.
Very truly yours,
WILLBROS GROUP, INC.
By:
---------------------------------------
Name:
Title:
THE SELLING STOCKHOLDERS
NAMED IN SCHEDULE B
ATTACHED HERETO
By:
---------------------------------------
Name:
Title: Attorney-in-Fact
Accepted and agreed to as of
the date first above written,
on behalf of themselves and
the other several Underwriters
named in Schedule A
SBC WARBURG DILLON READ INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
XXXXXX SECURITIES CO.
By: SBC WARBURG DILLON READ INC.
By:
----------------------------
Name:
Title:
[FORM OF NOTARIZATION]
STATE OF NEW YORK )
:
COUNTY OF NEW YORK )
BEFORE ME, a Notary Public in and for New York County, New York, on
this day personally appeared [______], known to me to be the person and officer
whose name is subscribed to the foregoing Underwriting Agreement and
acknowledged to me that the same was the act of [______], a [_______], and that
such person executed the same for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND and the seal of my office at in New York County,
New York, this the [____] day of [______] 1997.
Notary Public in and for The
State of New York
My commission expires: ________________
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
SBC Warburg Dillon Read Inc. .............
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ............................
Xxxxxx Securities Co. ....................
SCHEDULE B
SELLING STOCKHOLDERS
Number of
Name Firm Shares
---- -----------
Yorktown Energy Partners, L.P. 3,324,120
Concord Partners II, L.P. 451,600
Concord Partners Japan Limited 96,240
Lexington Partners IV, L.P. 4,950
Xxxxx University Third Century Fund 20,000
SBC Warburg Dillon Read Inc., as Agent 40,699
---------
Total 3,937,609
SCHEDULE C
Constructora CAMSA, C.A.
The Oman Construction Company, LLC
Willbros (Nigeria) Limited
