EXHIBIT 1.1
13,540,000 SHARES
BOIS D'ARC ENERGY, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
St. Petersburg, Florida
_________, 2005
Xxxxxxx Xxxxx & Associates, Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
Xxxxxxx Xxxx & Company L.L.C.
Xxxxxx Xxxxxxx Corp.
Xxxxxx Xxxxxxx & Co., Inc.
Calyon Securities (USA) Inc.
Hibernia Southcoast Capital, Inc.
KeyBanc Capital Markets, a Division of McDonald Investments Inc.
As Representatives of the Several Underwriters
listed on Schedule I hereto
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Bois d'Arc Energy, Inc., a Nevada corporation ("Bois d'Arc Inc."),
proposes, subject to the terms and conditions stated herein, to issue and
sell to the several Underwriters named in Schedule I hereto (the
"Underwriters"), and certain stockholders of Bois d'Arc Inc. named in
Schedule II hereto (the "Selling Stockholders") severally and not jointly
propose, subject to the terms and conditions stated herein, to sell to the
Underwriters, an aggregate of 13,540,000 shares of Bois d'Arc Inc.'s Common
Stock, par value $0.01 per share (the "Common Stock"), of which (a)
12,000,000 shares are to be issued and sold by Bois d'Arc Inc. and (b)
1,540,000 shares are to be sold by the Selling Stockholders, each Selling
Stockholder selling the number of shares set forth opposite such Selling
Stockholder's name in Schedule II hereto. The aggregate of 13,540,000 shares
to be purchased from Bois d'Arc Inc. and the Selling Stockholders are called
the "Firm Shares." In addition, Bois d'Arc Inc. has agreed to sell to the
Underwriters, upon the terms and conditions stated herein, up to an
additional 1,800,000 shares of Common Stock to cover over-allotments by the
Underwriters, if any, each Selling Stockholder selling up to the amount set
forth opposite such Selling Stockholder's name in Schedule II hereto. The
additional
1,800,000 shares to be sold by Bois d'Arc Inc. are referred to in this
Agreement as the "Additional Shares." The Firm Shares and the Additional
Shares are collectively referred to in this Agreement as the "Shares."
Xxxxxxx Xxxxx & Associates, Inc., Friedman, Billings, Xxxxxx & Co., Inc.,
Xxxxxxx Xxxx & Company L.L.C., Xxxxxx Xxxxxxx Corp., Xxxxxx Xxxxxxx & Co.,
Inc., Calyon Securities (USA) Inc., Hibernia Southcoast Capital, Inc. and
KeyBanc Capital Markets, Inc. are acting as the representatives of the
several Underwriters and in such capacity are referred to in this Agreement
as the "Representatives."
On or prior to the Closing Date (as defined herein), pursuant to the
filing of articles of conversion and articles of incorporation with the
Secretary of State of the State of Nevada, Bois d'Arc Energy, LLC, a Nevada
limited liability company ("Bois d'Arc LLC"), will convert into Bois d'Arc Inc.
as described in the Prospectus (as defined herein) under the heading "Certain
Relationships and Related Party Transactions - Conversion Transactions" (the
"Conversion Transactions"). As used in this Agreement, prior to the consummation
of the Conversion Transactions, references to the "Company" shall be deemed to
be references to Bois d'Arc LLC, and after the consummation of the Conversion
Transactions, references to the "Company" shall be deemed to be references to
Bois d'Arc Inc.
The Company wishes to confirm as follows its agreement with you and the
other several Underwriters, on whose behalf you are acting, in connection with
the several purchases of the Shares from the Company.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (File No. 333-119511), including
a prospectus subject to completion, relating to the Shares. Such registration
statement, as amended, including the financial statements, exhibits and
schedules thereto, at the time when it becomes effective and as thereafter
amended by any post-effective amendment, is referred to in this Agreement as
the "Registration Statement." The prospectus in the form included in the
Registration Statement or, if the prospectus included in the Registration
Statement omits certain information in reliance upon Rule 430A under the Act
and such information is thereafter included in a prospectus filed with the
Commission pursuant to Rule 424(b) under the Act or as part of a
post-effective amendment to the Registration Statement after the Registration
Statement becomes effective, the prospectus as so filed, is referred to in
this Agreement as the "Prospectus." If the Company elects, with the consent
of the Representatives, to rely on Rule 434 under the Act, all references to
the Prospectus shall be deemed to include the form of prospectus and the term
sheet contemplated by Rule 434, taken together, provided to the Underwriters
by the Company in reliance on Rule 434 under the Act (the "Rule 434
Prospectus"). If the Company files another registration statement with the
Commission to register a portion of the Shares pursuant to Rule 462(b) under
the Act (the "Rule 462 Registration Statement"), then any reference to
"Registration Statement" herein shall be deemed to include the registration
statement on Form S-1 (File No. 333-119511) and the Rule 462 Registration
Statement, as each such registration statement may be amended pursuant to the
Act. The prospectus subject to completion in the form included in the
Registration Statement at the time of the initial filing of
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such Registration Statement with the Commission and as such prospectus is
amended from time to time until the date of the Prospectus is referred to in
this Agreement as the "Preliminary Prospectus." All references in this
Agreement to the Registration Statement, the Rule 462 Registration Statement,
the Rule 434 Prospectus, a Preliminary Prospectus or the Prospectus, or any
amendments or supplements to any of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("XXXXX").
2. Agreements to Sell and Purchase. Upon the terms and conditions set
forth herein, on the Closing Date (as defined herein) (i) the Company agrees
to issue and sell an aggregate of 12,000,000 Firm Shares to the Underwriters
and (ii) the Selling Stockholders agree to sell an aggregate of 1,540,000
Firm Shares to the Underwriters, each Selling Stockholder selling the number
of Firm Shares set forth opposite such Selling Stockholder's name on Schedule
II hereto. Upon the basis of the representations, warranties and agreements
of the Company and the Selling Stockholders herein contained and subject to
all the terms and conditions set forth herein, each Underwriter agrees,
severally and not jointly, to purchase from the Company and the Selling
Stockholders at a purchase price of $[___] per Share (the "purchase price per
Share"), the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto.
The Company hereby also agrees to issue and sell to the Underwriters, and,
upon the basis of the representations, warranties and agreements of the
Company and the Selling Stockholders herein contained and subject to all the
terms and conditions set forth herein, the Underwriters shall have the right
for 30 days from the date of the Prospectus to purchase from the Company up
to 1,800,000 Additional Shares at the purchase price per Share for the Firm
Shares. The Additional Shares may be purchased solely for the purpose of
covering over-allotments, if any, made in connection with the offering of the
Firm Shares. If any Additional Shares are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase the number of Additional Shares
(subject to such adjustments as you may determine to avoid fractional shares)
that bears the same proportion to the total number of Additional Shares to be
purchased by the Underwriters as the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto bears to the total number
of Firm Shares. The option to purchase Additional Shares may be exercised at
any time within 30 days after the date of the Prospectus, but no more than
once.
3. Terms of Public Offering. The Company and the Selling Stockholders have
been advised by you that the Underwriters propose to make a public offering
of their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is
advisable and initially to offer the Shares upon the terms set forth in the
Prospectus.
Not later than 12:00 p.m. on the second business day following the date
the Firm Shares are released by the Underwriters for sale to the public, the
Company shall deliver or cause to be delivered copies of the Prospectus in
such quantities and at such places as the Representatives shall request.
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4. Delivery of the Shares and Payment Therefore. Delivery to the
Underwriters of the Firm Shares and payment therefore shall be made at the
offices of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx at 10:00 a.m., St. Petersburg, Florida time, on
[_________], or such other place, time and date not later than 1:30 p.m., St.
Petersburg, Florida time, on [__________] as the Representatives shall
designate by notice to the Company (the time and date of such closing are
called the "Closing Date"). The place of closing for the Firm Shares and the
Closing Date may be varied by agreement between the Representatives and the
Company. The Company and the Selling Stockholders hereby acknowledge that
circumstances under which the Representatives may provide notice to postpone
the Closing Date as originally scheduled include any determination by the
Company, the Selling Stockholders or the Representatives to recirculate to
the public copies of an amended or supplemented Prospectus or a delay as
contemplated by the provisions of Section 11 hereof.
Delivery to the Underwriters of and payment for any Additional Shares to
be purchased by the Underwriters shall be made at the offices of Xxxxxxx
Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx, at
10:00 a.m., St. Petersburg, Florida time, on such date or dates (the
"Additional Closing Date") (which may be the same as the Closing Date, but
shall in no event be earlier than the Closing Date nor earlier than three nor
later than ten business days after the giving of the notice hereinafter
referred to) as shall be specified in a written notice, from the
Representatives on behalf of the Underwriters to the Company, of the
Underwriters' determination to purchase a number, specified in such notice,
of Additional Shares. Such notice may be given at any time within 30 days
after the date of the Prospectus and must set forth (i) the aggregate number
of Additional Shares as to which the Underwriters are exercising the option
and (ii) the names and denominations in which the certificates for which the
Additional Shares are to be registered. The place of closing for the
Additional Shares and the Additional Closing Date may be varied by agreement
between you and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 1:00 p.m., St. Petersburg,
Florida time, not later than the second full business day preceding the
Closing Date or the Additional Closing Date, as the case may be. Such
certificates shall be made available to you in St. Petersburg, Florida for
inspection and packaging not later than 9:30 a.m., St. Petersburg, Florida
time, on the business day immediately preceding the Closing Date or the
Additional Closing Date, as the case may be. The certificates evidencing the
Firm Shares and any Additional Shares to be purchased hereunder shall be
delivered to you on the Closing Date or the Additional Closing Date, as the
case may be, against payment of the purchase price therefore by wire transfer
of immediately available funds to accounts specified in writing, not later
than the close of business on the business day next preceding the Closing
Date or the Additional Closing Date, as the case may be, by the Company and
the Selling Stockholders. Payment for the Shares sold by the Company
hereunder shall be delivered by the Representatives to the Company. Payment
for the Shares sold by the Selling Stockholders hereunder shall be delivered
by the Representatives to the Custodian (as defined herein).
It is understood that the Representatives have been authorized, for their
own accounts and the accounts of the several Underwriters, to accept delivery
of and receipt for, and make payment
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of the purchase price per Share for the Firm Shares and the Additional
Shares, if any, that the Underwriters have agreed to purchase. Xxxxxxx Xxxxx
and Associates, Inc., individually and not as Representative of the
Underwriters, may, but shall not be obligated to, make payment for any Shares
to be purchased by any Underwriter whose funds shall not have been received
by the Representatives by the Closing Date or the Additional Closing Date, as
the case may be, for the account of such Underwriter, but any such payment
shall not relieve such Underwriter from any of its obligations under this
Agreement.
Each Selling Stockholder hereby severally agrees that (i) it will pay all
stock transfer taxes, stamp duties and other similar taxes, if any, payable
upon the sale or delivery of the Firm Shares to be sold by such Selling
Stockholder to the several Underwriters, or otherwise in connection with the
performance of such Selling Stockholder's obligations hereunder and (ii) the
Custodian is authorized to deduct for such payment any such amounts from the
proceeds to such Selling Stockholder hereunder and to hold such amounts for
the account of such Selling Stockholder with the Custodian under the Custody
Agreement (as defined herein).
5. Covenants and Agreements.
5.1 Of the Company. The Company covenants and agrees with the several
Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective, if it has not
already become effective, and will advise you promptly and, if requested by
you, will confirm such advice in writing (i) when the Registration Statement
has become effective and the time and date of any filing of any
post-effective Registration Statement or any amendment or supplement to any
Preliminary Prospectus or the Prospectus and the time and date that any
post-effective amendment to the Registration Statement becomes effective,
(ii) if Rule 430A under the Act is employed, when the Prospectus has been
timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of
any comments of the Commission, or any request by the Commission for
amendments or supplements to the Registration Statement, any Preliminary
Prospectus or the Prospectus or for additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of the suspension of qualification of the
Shares for offering or sale in any jurisdiction or the initiation of any
proceeding for such purposes and (v) within the period of time referred to in
Section 5.1(e) below, of any change in the Company's condition (financial or
other), business, prospects, properties, net worth or results of operations,
or of any event that comes to the attention of the Company that makes any
statement made in the Registration Statement or the Prospectus (as then
amended or supplemented) untrue in any material respect or that requires the
making of any additions thereto or changes therein in order to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading in any material
respect, or of the necessity to amend or supplement the Prospectus (as then
amended or supplemented) to comply with the Act or any other law. If at any
time the Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, the Company will make every reasonable effort
to obtain the withdrawal or lifting of such order at the earliest possible
time. If the Company elects, with the
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consent of the Representatives, to rely on Rule 434 under the Act, the
Company will provide the Underwriters with copies of the form of Rule 434
Prospectus (including copies of a term sheet that complies with the
requirements of Rule 434 under the Act), in such number as the Underwriters
may reasonably request, and file with the Commission in accordance with Rule
424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the
Act before the close of business on the first business day immediately
following the date hereof. If the Company elects not to rely on Rule 434
under the Act, the Company will provide the Underwriters with copies of the
form of Prospectus, in such number as the Underwriters may reasonably
request, and file with the Commission such Prospectus in accordance with Rule
424(b) of the Act before the close of business on the first business day
immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed
duplicate originals of the Registration Statement as originally filed with
the Commission and of each amendment thereto, including financial statements
and all exhibits thereto, and will also furnish to you, without charge, such
number of conformed copies of the Registration Statement as originally filed
and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or
any amendment to the Registration Statement or make any amendment or
supplement to the Prospectus unless (i) you shall have previously been
advised thereof and been given a reasonable opportunity to review such
filing, amendment or supplement and (ii) you have not reasonably objected to
such filing, amendment or supplement after being so advised and having been
given a reasonable opportunity to review such filing, amendment or
supplement.
(d) Prior to the execution and delivery of this Agreement, the
Company has delivered or will deliver to you, without charge, in such
quantities as you have requested or may hereafter reasonably request, copies
of each form of the Preliminary Prospectus. Consistent with the provisions of
Section 5.1(e) hereof, the Company consents to the use, in accordance with
the provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by the several Underwriters and
by dealers, prior to the date of the Prospectus, of each Preliminary
Prospectus so furnished by the Company.
(e) As soon after the execution and delivery of this Agreement as is
practicable and thereafter from time to time for such period as in the
reasonable opinion of counsel for the Underwriters a prospectus is required
by the Act to be delivered in connection with sales by any Underwriter or a
dealer (the "Prospectus Delivery Period"), and for so long a period as you
may request for the distribution of the Shares, the Company will deliver to
each Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as they may
reasonably request. The Company consents to the use of the Prospectus (and of
any amendment or supplement thereto) in accordance with the provisions of the
Act and with the securities or Blue Sky laws of the jurisdictions in which
the Shares are offered by the several Underwriters and by all dealers to whom
Shares may be sold, both in connection with the offering and sale of the
Shares and for such period of time thereafter as the Prospectus is required
by the Act to be delivered in connection with sales by any
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Underwriter or dealer. If at any time prior to the later of (i) the
completion of the distribution of the Shares pursuant to the offering
contemplated by the Registration Statement or (ii) the expiration of
prospectus delivery requirements with respect to the Shares under Section
4(3) of the Act and Rule 174 thereunder, any event shall occur that in the
judgment of the Company or in the opinion of counsel for the Underwriters is
required to be set forth in the Prospectus (as then amended or supplemented)
or should be set forth therein in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or
if it is necessary to supplement or amend the Prospectus to comply with the
Act or any other law, the Company will forthwith prepare and, subject to
Sections 5.1(a) and 5.1(c) hereof, file with the Commission and use its best
efforts to cause to become effective as promptly as possible an appropriate
supplement or amendment thereto, and will furnish to each Underwriter who has
previously requested Prospectuses, without charge, a reasonable number of
copies thereof.
(f) The Company will cooperate with you and counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers under
the securities or Blue Sky laws of such jurisdictions as you may reasonably
designate and will file such consents to service of process or other
documents as may be reasonably necessary in order to effect and maintain such
registration or qualification for so long as required to complete the
distribution of the Shares; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action that would subject it to general service
of process in suits, other than those arising out of the offering or sale of
the Shares, as contemplated by this Agreement and the Prospectus, in any
jurisdiction where it is not now so subject. In the event that the
qualification of the Shares in any jurisdiction is suspended, the Company
shall so advise you promptly in writing. The Company will use its best
efforts to qualify or register its Common Stock for sale in non-issuer
transactions under (or obtain exemptions from the application of) the Blue
Sky laws of each state where necessary to permit market making transactions
and secondary trading and will comply with such Blue Sky laws and will
continue such qualifications, registrations and exemptions in effect for a
period of [__] years after the date hereof.
(g) The Company will make generally available to its security
holders a consolidated earnings statement (in form complying with the
provisions of Rule 158), which need not be audited, covering a twelve-month
period commencing after the effective date of the Registration Statement and
the Rule 462 Registration Statement, if any, and ending not later than 15
months thereafter, as soon as practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of Section 11(a)
of the Act.
(h) During the period ending five years from the date hereof, the
Company will furnish to you and, upon your request, to each of the other
Underwriters, (i) as soon as available, a copy of each proxy statement,
quarterly or annual report or other report of the Company mailed to
stockholders or filed with the Commission, the National Association of
Securities Dealers, Inc. (the "NASD") or the New York Stock Exchange ("NYSE")
or any national securities exchange and (ii) from time to time such other
information concerning the Company as you may reasonably request.
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(i) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provision hereof (except pursuant to a termination
under Section 12 hereof, other than clauses (i), (iv) or (v)) or if this
Agreement shall be terminated by the Underwriters because of any inability,
failure or refusal on the part of the Company to perform in all material
respects any agreement herein or to comply in all material respects with any
of the terms or provisions hereof or to fulfill in all material respects any
of the conditions of this Agreement, the Company agrees to reimburse you and
the other Underwriters for all reasonable out-of-pocket expenses (including
travel expenses and reasonable fees and expenses of counsel for the
Underwriters, but excluding wages and salaries paid by you) reasonably
incurred by you in connection herewith.
(j) The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder in accordance in all material respects with
the statements under the caption "Use of Proceeds" in the Prospectus.
(k) If Rule 430A under the Act is employed, the Company will timely
file the Prospectus or term sheet (as described in Rule 434(b) under the Act)
pursuant to Rule 424(b) under the Act.
(l) For a period of 180 days after the date of the Prospectus first
filed pursuant to Rule 424(b) under the Act, without your prior written
consent, the Company will not, (i) directly or indirectly, issue, sell, offer
or contract to sell or otherwise dispose of or transfer any shares of Common
Stock or securities convertible into or exchangeable or exercisable for
shares of Common Stock (collectively, "Company Securities") or any rights to
purchase Company Securities, or file any registration statement under the Act
with respect to any of the foregoing or (ii) enter into any swap or other
agreement that transfers, in whole or in part, directly or indirectly, the
economic consequences of ownership of Company Securities whether any such
swap or transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, except to the Underwriters pursuant to this
Agreement and except for grants of options or restricted shares pursuant to
the Company's stock option, stock bonus or other stock plans or arrangements
in effect as of the date hereof and described in the Prospectus and except
for issuances of shares of Common Stock upon the exercise of options
outstanding as of the date hereof under such stock plans.
(m) Prior to the Closing Date or the Additional Closing Date, as the
case may be, the Company will furnish to you, as promptly as possible, copies
of any unaudited interim consolidated financial statements of the Company and
its subsidiaries for any period subsequent to the periods covered by the
financial statements appearing in the Prospectus.
(n) The Company will comply with all provisions of any undertakings
contained in the Registration Statement.
(o) The Company will not at any time, directly or indirectly, take
any action designed, or which might reasonably be expected to cause or result
in, or which will constitute, stabilization or manipulation of the price of
the shares of Common Stock to facilitate the sale or
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resale of any of the Shares.
(p) The Company will timely file with the NYSE all documents and
notices required by the NYSE of companies that have or will issue securities
that are traded on the NYSE.
(q) The Company shall engage and maintain, at its expense, a
transfer agent and, if necessary under the jurisdiction of its incorporation or
the rules of any national securities exchange on which the Common Stock will be
listed, a registrar (which, if permitted by applicable laws and rules may be the
same entity as the transfer agent) for the Common Stock.
5.2 Of Each Selling Stockholder. Each Selling Stockholder covenants and
agrees with the several Underwriters as follows:
(a) Such Selling Stockholder will execute and deliver a Lock-Up
Agreement, in the form of Exhibit A attached hereto ("Lock-Up Agreement").
(b) Such Selling Stockholder will review the Prospectus and will
comply with all agreements and satisfy all conditions on its part to be complied
with or satisfied pursuant to this Agreement on or prior to the Closing Date and
will advise the Underwriters prior to the Closing Date if any statements to be
made on behalf of such Selling Stockholder in the certificate contemplated by
Section 9(l) hereof would be inaccurate if made as of the Closing Date.
(c) On the Closing Date, all stock transfer and other taxes (other
than income taxes) that are required to be paid in connection with the sale and
transfer of the Firm Shares to be sold by such Selling Stockholder to the
Underwriters hereunder will have been fully paid for by such Selling Stockholder
and all laws imposing such taxes will have been fully complied with.
(d) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), and the regulations promulgated thereunder, with respect
to the transactions herein contemplated, such Selling Stockholder shall deliver
to you at least two days prior to the Closing Date a properly completed and
executed United States Treasury Department Substitute Form W-9.
6. Representations and Warranties.
6.1 Of the Company. The Company hereby represents and warrants to each
Underwriter on the date hereof, and shall be deemed to represent and warrant to
each Underwriter on the Closing Date and the Additional Closing Date, as the
case may be, that:
(a) Each Preliminary Prospectus included as part of the Registration
Statement as originally filed or as part of any amendment or supplement thereto,
or filed pursuant to Rule 424(a) under the Act, complied as to form when so
filed in all material respects with the provisions of the Act, except that this
representation and warranty does not apply to
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statements in or omissions from such Preliminary Prospectus (or any amendment or
supplement thereto) made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by or on behalf
of any Underwriter through you expressly for use therein, or furnished to the
Company in writing by or on behalf of any Selling Stockholder expressly for use
therein. The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus and no proceeding for that purpose has been
instituted or threatened by the Commission or the securities authority of any
state or other jurisdiction.
(b) The Company has prepared each of the Registration Statement, any
Rule 462 Registration Statement and any post-effective amendment thereto, and
the Prospectus and any amendments or supplements thereto. The Registration
Statement (including any Rule 462 Registration Statement), in the form in which
it becomes effective and also in such form as it may be when any post-effective
amendment thereto shall become effective, and the Prospectus, and any supplement
or amendment thereto when filed with the Commission under Rule 424(b) under the
Act, will comply as to form in all material respects with the provisions of the
Act and will not at any such times 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, except that this representation
and warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectus (or any amendment or supplement thereto) made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by or on behalf of any Underwriter through
you expressly for use therein, or furnished to the Company in writing by or on
behalf of any Selling Stockholder expressly for use therein.
(c) Each Preliminary Prospectus and the Prospectus, if filed by
electronic transmission pursuant to XXXXX (except as may be permitted by
Regulation S-T under the Act), was identical to the copy thereof delivered to
the Underwriters for use in connection with the offer and sale of the Shares.
(d) The capitalization of the Company is and will be as set forth in
the Prospectus as of the date set forth therein. As of the Closing Date and the
Additional Closing Date, as the case may be, after giving effect to the
Conversion Transactions, all the outstanding shares of Common Stock of the
Company will be duly authorized and validly issued, fully paid and nonassessable
and free of any preemptive or similar rights; except as set forth in the
Prospectus, the Company is not a party to or bound by any outstanding options,
warrants or similar rights to subscribe for, or contractual obligations to
issue, sell, transfer or acquire, any of its capital stock or membership
interests or any securities convertible into or exchangeable for any of such
capital stock or membership interests; the Shares to be issued and sold to the
Underwriters by the Company hereunder have been duly authorized and, when issued
and delivered to the Underwriters against full payment therefore in accordance
with the terms hereof will be validly issued, fully paid and nonassessable and
free of any preemptive or similar rights; the capital stock of the Company
conforms to the description thereof in the Registration Statement and the
Prospectus (or any amendment or supplement thereto); and the delivery of
certificates for the Shares being sold by the Company against payment therefore
pursuant to the
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terms of this Agreement will pass valid title to the Shares being sold by the
Company, free and clear of any claim, encumbrance or defect in title, to the
several Underwriters purchasing such shares in good faith and without notice of
any lien, claim or encumbrance. The certificates for the Shares being sold by
the Company are in valid and sufficient form.
(e) As of the date of this Agreement, Bois d'Arc LLC is a limited
liability company duly formed and validly existing as a limited liability
company in good standing under the laws of the State of Nevada with full limited
liability company power and authority to own, lease and operate its properties
and to conduct its business as presently conducted and as described in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) and is duly registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature of its properties
or the conduct of its business requires such registration or qualification,
except where the failure to so register or qualify has not had or will not have
a material adverse effect on the condition (financial or other), business,
properties, net worth, results of operations or prospects of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
(f) As of the Closing Date and the Additional Closing Date, as the
case may be, Bois d'Arc Inc. will be a corporation duly incorporated and validly
existing as a corporation in good standing under the laws of the State of Nevada
with full corporate power and authority to own, lease and operate its properties
and to conduct its business as presently conducted and as described in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) and will be duly registered and qualified to conduct its business and
will be in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure to so register or qualify has not had or
will not have a Material Adverse Effect.
(g) Each of the subsidiaries of the Company is duly formed and
validly existing as a limited partnership or limited liability company, as the
case may be, in good standing under the laws of the state of its formation with
full power and authority to own, lease and operate its properties and to conduct
its business as presently conducted and as described in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) and is
duly registered and qualified to conduct its business and is in good standing in
each jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure to so register or qualify has not had or will not have a Material
Adverse Effect.
(h) The partnership interests or membership interests, as the case
may be, of each of the Company's subsidiaries have been duly authorized and
validly issued in accordance with the partnership agreements, operating
agreements or regulations, as the case may be, of each of the subsidiaries, and
are owned by the Company free and clear of any security interests, liens,
encumbrances, equities or claims. The Company does not have any subsidiaries and
does not own a material interest in or control, directly or indirectly, any
other corporation, partnership, joint venture, association, trust or other
business organization other than (i) those subsidiaries set forth in Exhibit
21.1 to the Registration Statement, (ii) Bois d'Arc Holdings, LLC, a Nevada
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limited liability company, and (iii) Bois d'Arc Oil & Gas Company, LLC, a Texas
limited liability company. As used in this Agreement, subsidiaries shall mean
direct and indirect subsidiaries of the Company.
(i) There are no legal or governmental proceedings pending or, to
the best knowledge of the Company, threatened, against the Company or its
subsidiaries or to which the Company or its subsidiaries or any of their
properties are subject, that are required to be described in the Registration
Statement or the Prospectus (or any amendment or supplement thereto) but are not
described as required. Except as described in the Prospectus, there is no
action, suit, inquiry, proceeding or investigation by or before any court or
governmental or other regulatory or administrative agency or commission pending
or, to the best knowledge of the Company, threatened, against or involving the
Company or its subsidiaries, which could reasonably be expected to individually
or in the aggregate prevent or adversely affect the transactions contemplated by
this Agreement or result in a Material Adverse Effect, nor to the Company's
knowledge, is there any reasonable basis for any such action, suit, inquiry,
proceeding or investigation. There are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) or to be filed as an exhibit to the Registration Statement that are not
described, filed or incorporated by reference in the Registration Statement and
the Prospectus as required by the Act. All such contracts to which the Company
or any of its subsidiaries is a party have been duly authorized, executed and
delivered by the Company or the applicable subsidiary, constitute valid and
binding agreements of the Company or the applicable subsidiary and are
enforceable against the Company or the applicable subsidiary in accordance with
the terms thereof, except as enforceability thereof may be limited by (i) the
application of bankruptcy, reorganization, insolvency and other laws affecting
creditors' rights generally and (ii) equitable principles being applied at the
discretion of a court before which any proceeding may be brought. Neither the
Company nor the applicable subsidiary has received notice or been made aware
that any other party is in breach of or default to the Company under any of such
contracts.
(j) Neither the Company nor any of its subsidiaries is (i) in
violation of (A) its articles of incorporation, bylaws, articles of
organization, regulations, operating agreement, agreement of limited partnership
or other organizational documents, (B) any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of its
subsidiaries, the violation of which would have a Material Adverse Effect or (C)
any decree of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries; or (ii) in default in any material
respect in the performance of any obligation, agreement or condition contained
in (A) any bond, debenture, note or any other evidence of indebtedness or (B)
any agreement, indenture, lease or other instrument (each of (A) and (B), an
"Existing Instrument") to which the Company or any of its subsidiaries is a
party or by which any of their properties may be bound, which default would have
a Material Adverse Effect; and there does not exist any state of facts that
constitutes an event of default on the part of the Company or any of its
subsidiaries as defined in such documents or that, with notice or lapse of time
or both, would constitute such an event of default.
-12-
(k) The Company's execution and delivery of this Agreement and the
performance by the Company of its obligations under this Agreement have been
duly and validly authorized by the Company and has been duly executed and
delivered by the Company, and this Agreement constitutes a valid and legally
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except to the extent enforceability may be limited by (i) the
application of bankruptcy, reorganization, insolvency and other laws affecting
creditors' rights generally and (ii) equitable principles being applied at the
discretion of a court before which any proceeding may be brought, except as
rights to indemnity and contribution hereunder may be limited by federal or
state securities laws.
(l) None of the issuance and sale of the Shares by the Company, the
execution, delivery or performance of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby (i) requires
any consent, approval, authorization or other order of or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required for the registration of
the Shares under the Act, the listing of the Shares for trading on the NYSE, the
registration of the Common Stock under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") and compliance with the securities or Blue
Sky laws of various jurisdictions, all of which will be, or have been, effected
in accordance with this Agreement and except for the NASD's clearance of the
underwriting terms of the offering contemplated hereby as required under the
NASD's Rules of Fair Practice), (ii) conflicts with or will conflict with or
constitutes or will constitute a breach of, or a default under, the Company's
articles of incorporation, bylaws, articles of organization, operating agreement
or any agreement, indenture, lease or other instrument to which the Company or
any of its subsidiaries is a party or by which any of its properties may be
bound, (iii) violates any statute, law, regulation, ruling, filing, judgment,
injunction, order or decree applicable to the Company or any of its subsidiaries
or any of their properties, or (iv) results in a breach of, or default under, or
results in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries pursuant to, or
requires the consent of any other party to, any Existing Instrument, except for
such conflicts, breaches, defaults, liens, charges or encumbrances that will
not, individually or in the aggregate, result in a Material Adverse Effect.
(m) Except as described in the Prospectus, neither the Company nor
any of its subsidiaries has outstanding and at the Closing Date and the
Additional Closing Date, as the case may be, will have outstanding any options
to purchase, or any warrants to subscribe for, or any securities or obligations
convertible into, or any contracts or commitments to issue or sell, any shares
of Common Stock or any such warrants or convertible securities or obligations.
No holder of securities of the Company has rights to the registration of any
securities of the Company, other than the Selling Stockholders with respect to
the Shares included in the Registration Statement, as a result of or in
connection with the filing of the Registration Statement or the consummation of
the transactions contemplated hereby that have not been satisfied or heretofore
waived in writing.
(n) Ernst & Young LLP, the certified public accountants who have
certified
-13-
the financial statements (including the related notes thereto and supporting
schedules) filed as part of the Registration Statement and the Prospectus (or
any amendment or supplement thereto), are independent public accountants as
required by the Act.
(o) The financial statements, together with related schedules and
notes, included in the Registration Statement and the Prospectus (and any
amendment or supplement thereto), present fairly the financial condition,
results of operations, cash flows and changes in financial position of the
Company on the basis stated in the Registration Statement at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Registration Statement and Prospectus (and
any amendment or supplement thereto) is accurately presented and prepared on a
basis consistent with such financial statements and the books and records of the
Company. The pro forma financial information contained in the Registration
Statement and the Prospectus has been prepared on a basis consistent with the
historical financial statements contained in the Prospectus (except for the pro
forma adjustments specified therein), includes all material adjustments to the
historical financial information required by Rule 11-02 of Regulation S-X under
the Act and the Exchange Act to reflect the transactions described in the
Prospectus, gives effect to assumptions made on a reasonable basis and fairly
presents the transactions described in the Prospectus. The other historical
financial and statistical information and data included or incorporated by
reference in the Prospectus are, in all material respects, fairly presented. No
other financial statements or schedules are required to be included in the
Registration Statement.
(p) Xxx Xxxxxxx and Associates, Inc. are independent petroleum
consultants with respect to the Company and its subsidiaries.
(q) The information underlying the estimates of oil and natural gas
reserves of the Company and its subsidiaries, which the Company supplied to Xxx
Xxxxxxx and Associates, Inc. for the purpose of preparing such engineer's
reserve report and letter included as an annex to the Prospectus (the "Reserve
Engineer's Letter") was true and correct in all material respects on the dates
such estimates were made and such information was supplied and was prepared in
accordance with customary industry practices; other than normal production of
the reserves and intervening product price fluctuations as described in the
Prospectus, the Company is not aware of any facts or circumstances that would
result in an adverse change in the reserves, or the present value of future net
cash flows therefrom, as described in the Prospectus and as reflected in the
Reserve Engineer's Letter, that would reasonably be expected to result in a
Material Adverse Effect; estimates of such reserves and present values as
described in the Prospectus and reflected in the Reserve Engineer's Letter
comply in all material respects with applicable requirements of Regulation S-X
and Industry Guide 2 under the Act.
(r) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), (i)
neither the Company nor any of its subsidiaries has incurred any material
-14-
liabilities or obligations, indirect, direct or contingent, or entered into any
transaction that is not in the ordinary course of business, (ii) neither the
Company nor any of its subsidiaries has sustained any material loss or
interference with its business or properties from fire, flood, windstorm,
accident or other calamity, whether or not covered by insurance, (iii) neither
the Company nor any of its subsidiaries has paid or declared any dividends or
other distributions with respect to its capital stock, membership interests or
partnership interests and the Company is not in default under the terms of any
class of capital stock or equity interests of the Company or any outstanding
debt obligations, (iv) there has not been any change in the authorized or
outstanding capital stock of Bois d'Arc Inc. or any material change in the
indebtedness of the Company (other than in the ordinary course of business) and
(v) there has not been any material adverse change, or any development involving
or that may reasonably be expected to result in a Material Adverse Effect, in
the condition (financial or otherwise), business, properties, net worth or
result of operations of the Company.
(s) All offers and sales of the Company's capital stock and other
debt or other securities prior to the date hereof were made in compliance with
or were the subject of an available exemption from the Act and all other
applicable state and federal laws or regulations, or any actions under the Act
or any state or federal laws or regulations in respect of any such offers or
sales are effectively barred by effective waivers or statutes of limitation.
(t) The Shares have been approved for listing on the NYSE under the
symbol "BDE", subject to official notice of issuance of the Shares being sold by
the Company, and upon consummation of the offering contemplated hereby the
Company will be in compliance with the designation and maintenance criteria
applicable to NYSE issuers.
(u) The Company has not distributed and will not distribute, and has
not authorized the Underwriters to distribute, any offering material in
connection with the offering and sale of the Shares other than the Preliminary
Prospectus, the Prospectus or other offering material, if any, as permitted by
the Act.
(v) Other than excepted activity pursuant to Regulation M under the
Exchange Act, the Company has not taken and will not take, directly or
indirectly, any action that constituted, or any action designed to, or that
might reasonably be expected to cause or result in or constitute, under the Act
or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares or for any other purpose.
(w) The Company and each of its subsidiaries have filed all tax
returns required to be filed (other than certain state or local tax returns, as
to which the failure to file, individually or in the aggregate, would not have a
Material Adverse Effect), which returns are complete and correct, and neither
the Company nor any subsidiary is in default in the payment of any taxes that
were payable pursuant to said returns or any assessments with respect thereto.
Except as disclosed in the Prospectus, all deficiencies asserted as a result of
any federal, state, local or foreign tax audits have been paid or finally
settled and no issue has been raised in any such audit that, by application of
the same or similar principles, reasonably could be expected to result in a
proposed deficiency for any other period not so audited. There are no
outstanding
-15-
agreements or waivers extending the statutory period of limitation applicable to
any federal, state, local or foreign tax return for any period. On the Closing
Date and the Additional Closing Date, as the case may be, all stock transfer and
other taxes that are required to be paid in connection with the sale of the
shares to be sold by the Company to the Underwriters will have been fully paid
by the Company and all laws imposing such taxes will have been complied with.
(x) Except as set forth in the Prospectus, there are no transactions
with "affiliates" (as defined in Rule 405 promulgated under the Act) or any
officer, director or security holder of the Company (whether or not an
affiliate) that are required by the Act to be disclosed in the Registration
Statement. Additionally, no relationship, direct or indirect, exists between the
Company or any of its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any subsidiary on the
other hand that is required by the Act to be disclosed in the Registration
Statement and the Prospectus that is not so disclosed.
(y) The Company is not (i) an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an investment company
within the meaning of the Investment Company Act of 1940, as amended, or (ii) a
"public utility company," a "holding company" or a "subsidiary company" of a
"holding company" or an "affiliate" thereof, within the meaning of the Public
Utility Holding Company Act of 1935.
(z) The Company and each of its subsidiaries has (i) generally
satisfactory title to all its interests in its oil and gas properties, title
investigations having been carried out by the Company and each of its
subsidiaries in accordance with the general practice in the oil and gas
industry, (ii) good and marketable title in fee simple to all other real
property owned by it and (iii) good and marketable title to all personal
property owned by it, in each case free and clear of all liens, encumbrances,
claims, security interests, subleases and defects except such as are described
in the Registration Statement and the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries; and
any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings of the Company and its
subsidiaries.
(aa) Each of the Company and its subsidiaries has all permits,
licenses, franchises, approvals, consents and authorizations of governmental or
regulatory authorities (hereinafter "permit" or "permits") as are necessary to
own its properties and to conduct its business in the manner described in the
Prospectus, subject to such qualifications as may be set forth in the
Prospectus, except where the failure to have obtained any such permit has not
had and will not have a Material Adverse Effect; each of the Company and its
subsidiaries has operated and is operating its business in material compliance
with and not in material violation of all of its obligations with respect to
each such permit and no event has occurred that allows, or after notice or lapse
of time would allow, revocation or termination of any such permit or result in
any other material impairment of the rights of any such permit, subject in each
case to such
-16-
qualification as may be set forth in the Prospectus; and, except as described in
the Prospectus, such permits contain no restrictions that are materially
burdensome to the Company or any of its subsidiaries.
(bb) The Company and its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or specific
authorizations and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(cc) (i) The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) under the
Exchange Act); (ii) such disclosure controls and procedures are designed to
ensure that information required to be disclosed by the Company in the reports
that the Company will file or submit under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in the
Commission's rules and forms, and are designed to ensure that information
required to be disclosed by the Company in the reports that it will file or
submit under the Exchange Act is accumulated and communicated to the Company's
management, including the Company's principal executive and principal financial
officers, or persons performing similar functions, as appropriate to allow
timely decisions regarding required disclosure; and (iii) such disclosure
controls and procedures are effective in all material respects to perform the
functions for which they were established.
(dd) The Company is in compliance in all material respects with
applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations of the Commission and the NYSE that pertain thereto that are
effective, and is actively taking steps to ensure that it will be in compliance
in all material respects with other applicable provisions of the Xxxxxxxx-Xxxxx
Act of 2002 and the rules and regulations of the Commission and the NYSE that
pertain thereto upon the effectiveness of such provisions.
(ee) Neither the Company nor any of its subsidiaries, since each has
been a subsidiary of the Company, nor, to the Company's knowledge, any employee
or agent of the Company or any of its subsidiaries, has, directly or indirectly,
(i) made any unlawful contribution to any candidate for political office, or
failed to disclose fully any contribution in violation of law or (ii) made any
payment to any federal, state, local or foreign governmental official, or other
person charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States or any jurisdiction
thereof or applicable foreign jurisdictions.
(ff) Except as set forth in the Prospectus, there has been no
storage, disposal, generation, manufacture, refinement, transportation, handling
or treatment of toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any of its
-17-
subsidiaries (or, to the knowledge of the Company, any of their predecessors in
interest) at, upon or from any of the property now or previously owned or leased
by the Company or its subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial action
which would not have, or could not be reasonably likely to have, individually or
in the aggregate with all such violations and remedial actions, a Material
Adverse Effect; there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical wastes, solid
wastes, hazardous wastes or hazardous substances due to or caused by the Company
or any of its subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have or would
not be reasonably likely to have, individually or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a Material Adverse Effect; and the terms "hazardous wastes", "toxic
wastes", "hazardous substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(gg) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of their respective businesses
and have no reason to believe that the conduct of their respective businesses
will conflict with, and have not received any notice of any claim of conflict
with, any such rights of others.
(hh) The Company has procured Lock-Up Agreements, in the form of
Exhibit A attached hereto, from each of the Company's executive officers and
directors, the Selling Stockholders and Xxxxxxxx Resources, Inc.
(ii) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which it
is engaged; and neither the Company nor any of its subsidiaries has reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a comparable cost.
(jj) The conversion of Bois d'Arc LLC into Bois d'Arc Inc. has been
duly authorized by the Company and the plan of conversion of Bois d'Arc LLC has
been duly authorized and executed by the Company.
(kk) As of the Closing Date, the Company will have filed all
notices, reports, documents or other information required to be filed by them
pursuant to, and will have obtained any and all authorizations, approvals,
orders, consents, licenses, certificates, permits, registrations or
qualifications required to be obtained under, and will have otherwise complied
-18-
with all requirements of, all applicable laws of the State of Nevada in
connection with the consummation of the Conversion Transactions; the Conversion
Transactions will be legal, effective and valid and in accordance with the laws
of the State of Nevada; and the consummation of the Conversion Transactions and
related transactions do not conflict with, result in a breach or violation of,
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any subsidiary pursuant to the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the Company or
any of its subsidiaries is a party or by which it is bound or to which its or
their property is subject, and which will not affect the validity, performance
or consummation of the Conversion Transactions and related transactions or the
transactions contemplated by this Agreement, and will not result in any
violation of the provisions of the articles of incorporation, bylaws or other
organizational document of the Company or any statute, rule or regulation,
judgment or, to the Company's knowledge, any order or decree of any court or
regulatory authority, administrative agency or other governmental agency or body
having jurisdiction over the Company or any of its respective properties.
6.2 Of the Selling Stockholders. Each Selling Stockholder hereby
represents and warrants, severally as to itself and not jointly, to each
Underwriter on the date hereof, and shall be deemed to represent and warrant to
each Underwriter on the Closing Date, that:
(a) Such Selling Stockholder is the lawful owner of the Firm Shares
to be sold by such Selling Stockholder pursuant to this Agreement and has, and
on the Closing Date, will have, good and valid title to such Firm Shares, free
of all restrictions on transfer, liens, encumbrances, security interests,
equities and claims whatsoever.
(b) Such Selling Stockholder has, and on the Closing Date, will
have, full legal right, power and authority, and all authorization and approval
required by law, to enter into (i) this Agreement, (ii) the Custody Agreement
signed by such Selling Stockholder and the Company, as custodian (the
"Custodian"), relating to the deposit of the Shares to be sold by such Selling
Stockholder (the "Custody Agreement") and (iii) the Power of Attorney appointing
certain individuals named therein as such Selling Stockholder's
attorneys-in-fact (the "Attorneys") to the extent set forth therein relating to
the transactions contemplated hereby and by the Prospectus (the "Power of
Attorney") to sell, assign, transfer and deliver the Firm Shares to be sold by
such Selling Stockholder in the manner provided herein.
(c) Each of this Agreement, the Custody Agreement and Power of
Attorney of such Selling Stockholder has been duly authorized, executed and
delivered by such Selling Stockholder and is a valid and binding agreement of
such Selling Stockholder, enforceable as to such Selling Stockholder in
accordance with its terms, except to the extent enforceability may be limited by
(i) the application of bankruptcy, reorganization, insolvency and other laws
affecting creditors' rights generally and (ii) equitable principles being
applied at the discretion of a court before which a proceeding may be brought,
except as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and, pursuant to such Power of Attorney, such
Selling Stockholder has, among other things, authorized the Attorneys, or any
one
-19-
of them, to execute and deliver on such Selling Stockholder's behalf this
Agreement and any other document that they, or any one of them, may deem
necessary or desirable in connection with the transactions contemplated hereby
and thereby and to deliver the Firm Shares to be sold by such Selling
Stockholder pursuant to this Agreement.
(d) None of the sale of the Firm Shares by such Selling Stockholder,
the execution, delivery or performance by such Selling Stockholder of this
Agreement, the Custody Agreement and Power of Attorney of such Selling
Stockholder by or on behalf of such Selling Stockholder, the compliance by such
Selling Stockholder with all the provisions hereof and thereof nor the
consummation by such Selling Stockholder of the transactions contemplated hereby
and thereby (i) requires any consent, approval, authorization or other order of,
or registration or filing with, any court, regulatory body or administrative
agency or other governmental body, agency or official (except such as may be
required under the securities or Blue Sky laws of the various states), (ii)
conflicts with or will conflict with or constitutes or will constitute a breach
of or a default under, the organizational documents of such Selling Stockholder,
if such Selling Stockholder is not an individual, or any agreement, indenture,
lease or other instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder or any property of such Selling Stockholder is
bound or (iii) violates any statute, law, regulation, ruling, filing, judgment,
injunction, order or decree applicable to such Selling Stockholder or any
property of such Selling Stockholder.
(e) The information in the Prospectus under the caption "Principal
and Selling Stockholders" that specifically relates to such Selling Stockholder
does not, and will not on the Closing Date or the Additional Closing Date, as
the case may be, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(f) At any time prior to the Closing Date or the Additional Closing
Date, as the case may be, if there is any change in the information referred to
in Section 6.2(e) hereof, such Selling Stockholder will immediately notify the
Representatives of such change.
(g) Other than excepted activity pursuant to Regulation M under the
Exchange Act, such Selling Stockholder has not taken and will not take, directly
or indirectly, any action that constituted, or any action designed to, or that
might reasonably be expected to cause or result in or constitute, under the Act
or otherwise, stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares.
(h) Upon delivery of and payment for the Firm Shares to be sold by
such Selling Stockholder pursuant to this Agreement, good and valid title to
such Firm Shares will pass to the Underwriters, free of all restrictions on
transfer, liens, encumbrances, security interests, equities and claims
whatsoever.
(i) Such Selling Stockholder does not have any registration or other
similar rights to have any equity or debt securities registered for sale by the
Company under the
-20-
Registration Statement or included in the offering contemplated by this
Agreement, except for such rights as are being exercised in the offering
contemplated by this Agreement or such rights as have been duly waived.
(j) Such Selling Stockholder has no reason to believe that the
representations and warranties of the Company contained in Section 6.1 hereof
are not true and correct, is familiar with the Registration Statement and the
Prospectus and has no knowledge of any material fact, condition or information
not disclosed in the Registration Statement or the Prospectus that has had or
may have a Material Adverse Effect, and is not prompted to sell shares of Common
Stock by any information concerning the Company that is not set forth in the
Registration Statement.
7. Expenses. Whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective or is terminated, the Company
agrees to pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof and of any Preliminary Prospectus to the Underwriters and
dealers; (ii) the printing and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the Registration
Statement, the Prospectus, each Preliminary Prospectus, the Blue Sky memoranda,
the Master Agreement Among Underwriters, this Agreement, the Selected Dealers
Agreement and all amendments or supplements to any of them as may be reasonably
requested for use in connection with the offering and sale of the Shares; (iii)
consistent with the provisions of Section 5.1(f), all expenses in connection
with the qualification of the Shares for offering and sale under state
securities laws or Blue Sky laws, including reasonable attorneys' fees and
out-of-pocket expenses of the counsel for the Underwriters in connection
therewith; (iv) the filing fees incident to securing any required review by the
NASD of the fairness of the terms of the sale of the Shares; (v) the fees and
expenses associated with listing the Shares on the NYSE; (vi) the cost of
preparing stock certificates; (vii) the costs and charges of any transfer agent
or registrar; (viii) the cost of the tax stamps, if any, in connection with the
issuance and delivery of the Shares to the respective Underwriters; (ix) all
other fees, costs and expenses referred to in Item 13 of the Registration
Statement; and (x) the lodging, graphics and other expenses incidental to the
Company's preparation for and participation in the "roadshow" for the offering
contemplated hereby. Except as provided in this Section 7 and in Section 8
hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel. In addition, in the event that the proposed
offering is terminated for the reasons set forth in Section 5.1(i) hereof, the
Company agrees to reimburse the Underwriters as provided in Section 5.1(i).
8. Indemnification and Contribution. Subject to the limitations in this
paragraph below, the Company agrees to indemnify and hold harmless you and each
other Underwriter, the directors, officers, employees and agents of each
Underwriter, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses,
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including reasonable costs of investigation and attorneys' fees and expenses
(collectively, "Damages") arising out of or based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus or in the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading, except to the extent that any such
Damages arise out of or are based upon an untrue statement or omission or
alleged untrue statement or omission that has been made therein or omitted
therefrom in reliance upon and in conformity with the information furnished in
writing to the Company by or on behalf of any Underwriter through you, or by or
on behalf of the Selling Stockholders, as the case may be, expressly for use in
connection therewith or (ii) any inaccuracy in or breach of the representations
and warranties of the Company contained herein or any failure of the Company to
perform its obligations hereunder or under law; provided, however, that with
respect to any untrue statement or omission made in any Preliminary Prospectus,
the indemnity agreement contained in this paragraph shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter or to any officer, director, employee or agent of any Underwriter)
from whom the person asserting any such Damages purchased the Shares concerned
if both (A) a copy of the Prospectus was not sent or given to such person at or
prior to the written confirmation of the sale of such Shares to such person as
required by the Act and (B) the untrue statement or omission in the Preliminary
Prospectus was corrected in the Prospectus. This indemnification shall be in
addition to any liability that the Company may otherwise have.
Subject to the limitations in this paragraph below, each Selling
Stockholder, severally and not jointly, agrees to indemnify and hold harmless
you and each other Underwriter, the directors, officers, employees and agents of
each Underwriter, and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any and all Damages arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, except to the extent
that any such Damages arise out of or are based upon an untrue statement or
omission or alleged untrue statement or omission that has been made therein or
omitted therefrom in reliance upon and in conformity with the information not
expressly relating to the Selling Stockholders or the offering by them of their
shares of Common Stock or furnished in writing to the Company by or on behalf of
any Underwriter through you expressly for use in connection therewith or (ii)
any inaccuracy in or breach of the representations and warranties of such
Selling Stockholder contained herein or any failure of such Selling Stockholder
to perform its obligations hereunder or under law; provided, however, that with
respect to any untrue statement or omission made in any Preliminary Prospectus,
the indemnity agreement contained in this paragraph shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter or to any officer, director, employee or agent of any Underwriter)
from whom the person asserting any such Damages purchased the Shares concerned
if both (A) a copy of the Prospectus was not sent
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or given to such person at or prior to the written confirmation of the sale of
such Shares to such person as required by the Act and (B) the untrue statement
or omission in the Preliminary Prospectus was corrected in the Prospectus. This
indemnification shall be in addition to any liability that the Selling
Stockholders or any Selling Stockholder may otherwise have.
In addition to their other obligations under this Section 8, each of the
Company and the Selling Stockholders, severally and not jointly, agrees that, as
an interim measure during the pendency of any claim, action, investigation,
inquiry or other proceeding arising out of or based upon any statement or
omission, or any inaccuracy in the representations and warranties of the Company
or the Selling Stockholders herein or failure to perform their respective
obligations hereunder, all as set forth in this Section 8, the party against
whom indemnification is being sought will reimburse each Underwriter on a
monthly basis for all reasonable legal or other out-of-pocket expenses incurred
in connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding (to the extent documented by
reasonably itemized invoices therefore), notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the obligation
of the Company or a Selling Stockholder to reimburse each Underwriter for such
expenses and the possibility that such payments might later be held to have been
improper by a court of competent jurisdiction. To the extent that any such
interim reimbursement payment is so held to have been improper, each Underwriter
shall promptly return it to the person(s) from whom it was received. Any such
interim reimbursement payments that are not made to the Underwriters within 30
days of a request for reimbursement shall bear interest compounded daily at a
rate determined on the basis of the base lending rate announced from time to
time by The Wall Street Journal from the date of such request.
If any action or claim shall be brought against any Underwriter or any
person controlling any Underwriter in respect of which indemnity may be sought
jointly and severally against the Company and the Selling Stockholders, such
Underwriter or such controlling person shall promptly notify in writing the
party(s) against whom indemnification is being sought (the "indemnifying party"
or "indemnifying parties"), and such indemnifying party(s) shall assume the
defense thereof, including the employment of counsel reasonably acceptable to
such Underwriter or such controlling person and the payment of all reasonable
fees of and expenses incurred by such counsel. Such Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person,
unless (i) the indemnifying party(s) has (have) agreed in writing to pay such
fees and expenses, (ii) the indemnifying party(s) has (have) failed to assume
the defense and employ counsel reasonably acceptable to the Underwriter or such
controlling person or (iii) the named parties to any such action (including any
impleaded parties) include both such Underwriter or such controlling person and
the indemnifying party(s), and such Underwriter or such controlling person shall
have been advised by its counsel that one or more legal defenses may be
available to the Underwriter that may not be available to the Company or the
Selling Stockholders, or that representation of such indemnified party and any
indemnifying party(s) by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the indemnifying party(s) shall not have
the right to
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assume the defense of such action on behalf of such Underwriter or such
controlling person (but the Company and the Selling Stockholders, as applicable,
shall not be liable for the fees and expenses of more than one counsel for the
Underwriters and such controlling persons)). The indemnifying party(s) shall not
be liable for any settlement of any such action effected without its (their
several) written consent, but if settled with such written consent, or if there
be a final judgment for the plaintiff in any such action, the indemnifying
party(s) agree(s) to indemnify and hold harmless any Underwriter and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment, but in the case of a judgment
only to the extent stated in the first and second paragraph of this Section 8.
Each Underwriter agrees, severally and jointly, to indemnify and hold
harmless the Company and the Selling Stockholders, their respective directors,
their respective officers who sign the Registration Statement and any person who
controls the Company or the Selling Stockholders within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing several indemnity from the Company and the Selling Stockholders to
each Underwriter, but only with respect to information furnished in writing by
or on behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus or any Preliminary Prospectus, or any
amendment or supplement thereto. If any action or claim shall be brought or
asserted against the Company or the Selling Stockholders, any of their
respective directors, any of their respective officers or any such controlling
person based on the Registration Statement, the Prospectus or any Preliminary
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph, such
Underwriter shall have the rights and duties given to the Company and the
Selling Stockholders by the immediately preceding paragraph (except that if the
Company and the Selling Stockholders shall have assumed the defense thereof such
Underwriter shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees and expenses of
such counsel shall be at such Underwriter's expense), and the Company and the
Selling Stockholders, their respective directors, any such officers and any such
controlling persons, shall have the rights and duties given to the Underwriters
by the immediately preceding paragraph.
In any event, the Company or the Selling Stockholders will not, without
the prior written consent of the Representatives, settle or compromise or
consent to the entry of any judgment in any proceeding or threatened claim,
action, suit or proceeding in respect of which the indemnification may be sought
hereunder (whether or not the Representatives or any person who controls the
Representatives within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act is a party to such claim, action, suit or proceeding) unless such
settlement, compromise or consent includes an unconditional release of all
Underwriters and such controlling persons from all liability arising out of such
claim, action, suit or proceeding.
If the indemnification provided for in this Section 8 is unavailable or
insufficient for any reason whatsoever to an indemnified party in respect of any
Damages referred to herein, then an 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 Damages (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
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Selling Stockholders, respectively, on the one hand, and the Underwriters on the
other hand, from the offering and sale 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 and several fault of the Company
and the Selling Stockholders, respectively, on the one hand, and the
Underwriters on the other hand, in connection with the statements or omissions
that resulted in such Damages as well as any other relevant equitable
considerations. The relative and several benefits received by the Company and
the Selling Stockholders, respectively, on the one hand, and the Underwriters on
the other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus; provided that, in the event that the
Underwriters shall have purchased any Additional Shares hereunder, any
determination of the relative benefits received by the Company and the Selling
Stockholders or the Underwriters from the offering of the Shares shall include
the net proceeds (before deducting expenses) received by the Company, and the
underwriting discounts and commissions received by the Underwriters, from the
sale of such Additional Shares. The relative fault of the Company and the
Selling Stockholders, respectively, on the one hand, and the Underwriters on the
other hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Selling Stockholders, on the one hand, or by the Underwriters on the
other hand and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 8 was
determined by a 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 into account the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the Damages referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute any
amount in excess of the amount of the underwriting commissions received by such
underwriter in connection with the Shares underwritten by it and distributed to
the public. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective numbers of Firm Shares set forth opposite their names in
Schedule I hereto (or such numbers of Firm Shares increased as set forth in
Section 10 hereof) and not joint.
Notwithstanding the third paragraph of this Section 8, any Damages for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as Damages are incurred after receipt of
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reasonably itemized invoices therefore. The indemnity, contribution and
reimbursement agreements contained in this Section 8 and the several, and not
joint, representations and warranties of the Company and the Selling
Stockholders set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter, the Company, the
Selling Stockholders, their respective directors or officers or any person
controlling the Company or the Selling Stockholders, (ii) acceptance of any
Shares and payment therefore hereunder and (iii) any termination of this
Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the Company or the Selling Stockholders, their respective
directors or officers or any person controlling the Company or the Selling
Stockholders, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 8.
It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in the third paragraph of this
Section 8, including the amounts of any requested reimbursement payments and the
method of determining such amounts, shall be settled by arbitration conducted
pursuant to the Code of Arbitration Procedure of the NASD. Any such arbitration
must be commenced by service of a written demand for arbitration or written
notice of intention to arbitrate, therein electing the arbitration tribunal. In
the event the party demanding arbitration does not make such designation of an
arbitration tribunal in such demand or notice, then the party responding to said
demand or notice is authorized to do so. Such an arbitration would be limited to
the operation of the interim reimbursement provisions contained in the third and
fifth paragraphs of this Section 8, and would not resolve the ultimate propriety
or enforceability of the obligation to reimburse expenses that is created by the
provisions of the third paragraph of this Section 8.
9. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters to purchase the Firm Shares hereunder are subject to the following
conditions:
(a) The Registration Statement shall have become effective not later
than 12:00 noon, New York City time, on the date hereof, or at such later date
and time as shall be consented to in writing by the Representatives, and all
filings required by Rules 424(b), 430A and 462 under the Act shall have been
timely made.
(b) You shall be reasonably satisfied that since the respective
dates as of which information is given in the Registration Statement and
Prospectus, (i) there shall not have been any change in the capital stock of
Bois d'Arc Inc. or any material change in the indebtedness (other than in the
ordinary course of business) of the Company, (ii) except as set forth or
contemplated by the Registration Statement or the Prospectus, no material oral
or written agreement or other transaction shall have been entered into by the
Company that is not in the ordinary course of business or that could reasonably
be expected to result in a material reduction in the future earnings of the
Company, (iii) no loss or damage (whether or not insured) to the property of the
Company shall have been sustained that had or could reasonably be expected to
have a Material Adverse Effect, (iv) no legal or governmental action, suit or
proceeding affecting the Company or any of its properties that is material to
the Company or that affects or could
-26-
reasonably be expected to affect the transactions contemplated by this Agreement
shall have been instituted or threatened and (v) there shall not have been any
material change in the condition (financial or otherwise), business, management,
results of operations or prospects of the Company or its subsidiaries that makes
it impractical or inadvisable in your reasonable judgment to proceed with the
public offering or purchase of the Shares as contemplated hereby.
(c) You shall have received on the Closing Date (and the Additional
Closing Date, if any) an opinion of Xxxxx Xxxxxxx & Xxxx LLP, counsel to the
Company, substantially to the effect that:
(i) Bois d'Arc Inc. is a corporation duly incorporated and
validly existing in good standing under the laws of the State of Nevada,
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement thereto),
and is duly registered or otherwise qualified to conduct its business as a
foreign corporation and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure to so
register or qualify does not have a Material Adverse Effect.
(ii) Each of Bois d'Arc Inc.'s subsidiaries is a limited
partnership or limited liability company, as the case may be, duly formed
and validly existing in good standing under the laws of the jurisdiction
of its formation, with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), and is duly registered or otherwise qualified to conduct its
business as a foreign limited partnership or a foreign limited liability
company, as the case may be, and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure to
so register or qualify does not have a Material Adverse Effect; and all of
the outstanding partnership interests or membership interests, as the case
may be, of each of the subsidiaries have been duly authorized and validly
issued pursuant to the partnership agreement, operating agreement or
regulations, as the case may be, of each of the subsidiaries, and are
owned by Bois d'Arc Inc. directly, or indirectly through one of the other
subsidiaries, free and clear of any perfected security interest, or any
other security interest, lien, adverse claim, equity or other encumbrance
other than liens in favor of the lenders under the credit facility
described in the Prospectus.
(iii) The capitalization of Bois d'Arc Inc. conforms in all
material respects to the description thereof contained in the Prospectus
under the caption "Capitalization" and the Shares conform in all material
respects to the description of the Common Stock in the Prospectus. To such
counsel's knowledge, except as set forth in the Prospectus, Bois d'Arc
Inc. is not a party to or bound by any outstanding options, warrants or
similar rights to subscribe for, or contractual obligations to issue,
sell, transfer or acquire, any of its capital stock or any securities
convertible into or
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exchangeable for any of such capital stock.
(iv) All shares of capital stock of Bois d'Arc Inc.
outstanding prior to the issuance of the Shares to be issued and sold by
Bois d'Arc Inc. hereunder, including the shares of Common Stock owned by
the Selling Stockholders, have been duly authorized and validly issued,
are fully paid and nonassessable.
(v) To such counsel's knowledge, all offers and sales of Bois
d'Arc Inc.'s securities have been made in compliance in all material
respects with the registration requirements of the Act and other
applicable state securities laws or regulations or applicable exemptions
therefrom.
(vi) To such counsel's knowledge, neither Bois d'Arc Inc. nor
any of its subsidiaries is in violation of its articles of incorporation
or bylaws and is not in default in the performance of any material
obligation, agreement or condition contained in any bond, indenture, note
or other evidence of indebtedness, where the default would reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
(vii) Neither the offer, sale or delivery of the Shares by
Bois d'Arc Inc., the execution, delivery or performance by Bois d'Arc Inc.
of this Agreement, compliance by Bois d'Arc Inc. with all provisions
hereof nor consummation by Bois d'Arc Inc. of the transactions
contemplated hereby (A) conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, the articles of
incorporation or bylaws of Bois d'Arc Inc. or, to the knowledge of such
counsel, any material agreement, indenture, lease or other instrument to
which Bois d'Arc Inc. is a party or by which any of its properties is
bound or (B) creates or will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of Bois d'Arc Inc.
or (C) violates or will result in any violation of any existing law,
statute or regulation or any ruling (assuming compliance with all
applicable state securities and Blue Sky laws), judgment, injunction,
order or decree that is known to such counsel and is applicable to Bois
d'Arc Inc. or any of its properties.
(viii) Such counsel does not know of any action, suit,
inquiry, proceeding, or investigation by or before any court or
governmental or other regulatory or administrative agency or commission
pending or threatened, against or involving Bois d'Arc Inc. or its
subsidiaries, or the properties of either Bois d'Arc Inc. or any of its
subsidiaries that could reasonably be expected to individually or in the
aggregate prevent or adversely affect the transactions contemplated by
this Agreement or that are required to be described in the Registration
Statement or Prospectus (or any amendment or supplement thereto) that are
not described as required therein.
(ix) Such counsel has reviewed all material agreements,
contracts, indentures, leases or other documents or instruments described
or referred to in the Registration Statement and the Prospectus, and such
agreements, contracts (and forms of
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contracts), indentures, leases or other documents or instruments are
fairly summarized or disclosed in all material respects therein, and filed
as exhibits thereto as required, and such counsel does not know of any
agreements, contracts, indentures, leases or other documents or
instruments required to be so summarized or disclosed or filed that have
not been so summarized or disclosed or filed.
(x) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official is required on the
part of Bois d'Arc Inc. (except such as have been obtained under the Act
or such as may be required under state securities or Blue Sky laws
governing the purchase and distribution of the Shares) for the valid
issuance and sale of the Shares to the Underwriters under this Agreement.
(xi) The form of certificate used to evidence the Common Stock
is in due and proper form and complies with all applicable requirements of
the articles of incorporation and bylaws of Bois d'Arc Inc. and the
General Corporation Law of the State of Nevada.
(xii) The description of Bois d'Arc Inc.'s stock option, stock
bonus and other stock plans or arrangements, and the options or other
rights granted and exercised thereunder, set forth in the Prospectus
accurately and fairly presents the information required to be shown with
respect to such plans, arrangements, options and rights.
(xiii) Bois d'Arc Inc. has all requisite power and authority
to enter into this Agreement and to issue, sell and deliver the Shares to
be sold by it to the Underwriters as provided herein. The Agreement has
been duly authorized, executed and delivered by Bois d'Arc Inc.
(xiv) The Shares to be issued and sold to the Underwriters by
Bois d'Arc Inc. hereunder have been duly authorized and, when issued and
delivered to the Underwriters against payment therefore in accordance with
the terms hereof, (A) such Shares will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights that entitle or
will entitle any person to acquire any Shares upon the issuance thereof by
Bois d'Arc Inc. arising under applicable law, the Company's articles of
incorporation or bylaws or, to such counsel's knowledge, any agreement or
other instrument and (B) good and valid title to such Shares, free and
clear of any claim, encumbrance or defect in title of any nature (other
than any arising by or through the Underwriters), will pass to each
Underwriter that has purchased any portion of such Shares in good faith
and without knowledge of any such claim, encumbrance or defect.
(xv) The Registration Statement has been declared effective by
the Commission under the Act. To the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has
been issued under the Act and no proceedings for such purpose have been
instituted or are pending or are contemplated or threatened by the
Commission. Any required filing of the Prospectus
-29-
and any supplement thereto pursuant to Rule 424(b) under the Act has been
made in the manner and within the time period required by such Rule
424(b).
(xvi) The Registration Statement, including any Rule 462
Registration Statement, the Prospectus and each amendment or supplement to
the Registration Statement and the Prospectus, as of their respective
effective or issue dates (other than the financial statements and
supporting schedules and pro forma and other financial and statistical
data included therein or in exhibits to or excluded from the Registration
Statement, as to which no opinion need be given) comply as to form in all
material respects with the requirements of the Act.
(xvii) The descriptions in the Prospectus of statutes,
regulations or legal or governmental proceedings, insofar as they purport
to summarize certain of the provisions thereof, are accurate in all
material respects and fairly present the information required to be
presented by the Act and the rules and regulations thereunder.
(xviii) Bois d'Arc Inc. is not, and after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" or an "affiliated person" of, or "promoter" or "principal
investor" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(xix) The Shares have been approved for listing on the New
York Stock Exchange.
(xx) The statements (i) in the Prospectus under the captions
"Business and Properties - Regulation," "Business and Properties - Legal
Proceedings," "Certain Relationships and Related Party Transactions,"
"Description of Capital Stock" and "Shares Eligible for Future Sale" and
(ii) in Item 14 and Item 15 of the Registration Statement, insofar as such
statements constitute matters of law, summaries of legal matters, Bois
d'Arc Inc.'s articles of incorporation or bylaw provisions, documents or
legal proceedings, or legal conclusions, have been reviewed by such
counsel and fairly present and summarize, in all material respects, the
matters referred to therein.
In rendering such opinion, counsel may rely, to the extent they deem such
reliance proper, as to matters of fact upon certificates of officers of the
Company and of government officials, provided that counsel shall state their
belief that they and you are justified in relying thereon. Copies of all such
certificates shall be furnished to you and your counsel on the Closing Date and
the Additional Closing Date, as the case may be. Insofar as the foregoing
opinions relate to matters governed by the laws of the State of Nevada, counsel
may rely, without investigation, on an opinion of Nevada counsel, a copy of
which shall be furnished to you and your counsel on the Closing Date and the
Additional Closing Date, as the case may be.
In addition to the opinion set forth above, such counsel shall state that
during the course of his or her participation in the preparation of the
Registration Statement and the Prospectus and
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the amendments thereto, nothing has come to the attention of such counsel that
has caused him or her to believe that the Registration Statement or the
Prospectus or any amendment thereto (except for the financial statements and
supporting schedules and pro forma and other financial, statistical and
accounting information contained therein or omitted therefrom as to which no
opinion need be expressed), at the date thereof, 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
Registration Statement or the Prospectus as of the date of the opinion (except
as aforesaid), contains an untrue statement of a material fact or omits to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) You shall have received on the Closing Date an opinion of
[__________________], counsel to the Selling Stockholders, substantially to the
effect that:
(i) The Selling Stockholders have all requisite power and
authority to enter into this Agreement and to sell and deliver the Firm
Shares to be sold by them to the Underwriters as provided herein. This
Agreement has been duly authorized, executed and delivered by the Selling
Stockholders.
(ii) The Firm Shares to be sold to the Underwriters by the
Selling Stockholders hereunder have been duly authorized and, when
delivered to the Underwriters against payment therefore in accordance with
the terms hereof, good and valid title to such Firm Shares, free and clear
of any claim, encumbrance or defect in title of any nature (other than any
arising by or through the Underwriters), will pass to each Underwriter
that has purchased any portion of such Firm Shares in good faith and
without knowledge of any such claim, encumbrance or defect.
(iii) Neither the offer, sale or delivery of the Firm Shares
by the Selling Stockholders, the execution, delivery or performance by the
Selling Stockholders of this Agreement, compliance by the Selling
Stockholders with all provisions hereof nor consummation by the Selling
Stockholders of the transactions contemplated hereby (A) conflicts or will
conflict with or constitutes or will constitute a breach of, or a default
under, the organizational documents of such Selling Stockholder, if such
Selling Stockholder is not an individual, or any material agreement,
indenture, lease or other instrument to which such Selling Stockholder is
a party or by which any of their properties is bound, (B) creates or will
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of such Selling Stockholder or (C) violates or
will result in any violation of any existing law, statute, regulation,
ruling (assuming compliance with all applicable state and securities and
Blue Sky laws), judgment, injunction, order or decree that is known to
such counsel and is applicable to such Selling Stockholder or any of its
properties.
(iv) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official is required on the
part of the Selling Stockholders
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(except such as have been obtained under the Act or such as may be
required under state securities or Blue Sky laws governing the purchase
and distribution of the Shares) for the valid sale of the Firm Shares to
the Underwriters by the Selling Stockholders under this Agreement.
(v) Each of the Custody Agreement and Power of Attorney of the
Selling Stockholders has been duly authorized, executed and delivered by
the Selling Stockholders and is a valid, legal and binding agreement of
the Selling Stockholders enforceable against the Selling Stockholders in
accordance with its terms, except to the extent enforceability may be
limited by (i) bankruptcy, reorganization, insolvency or other laws
affecting enforcement of creditors' rights generally and (ii) equitable
principles being applied at the discretion of a court before which any
proceeding may be brought, and except as to indemnity and contribution may
be limited by federal or state securities laws.
In rendering such opinion, counsel may rely, to the extent they deem such
reliance proper, as to matters of fact upon certificates of officers of the
Company and of government officials, provided that counsel shall state their
belief that they and you are justified in relying thereon. Copies of all such
certificates shall be furnished to you and your counsel on the Closing Date.
(e) You shall have received on the Closing Date or Additional
Closing Date, as the case may be, an opinion of Xxxxx Xxxxx L.L.P., as counsel
for the Underwriters, dated the Closing Date or Additional Closing Date, as the
case may be, with respect to the issuance and sale of the Shares, the
Registration Statement and other related matters as you may reasonably request,
and the Company and its counsel shall have furnished to your counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(f) You shall have received letters addressed to you and dated the
date hereof and the Closing Date or the Additional Closing Date, as the case may
be, from (i) the firm of Ernst & Young LLP, independent certified public
accountants, and (ii) the Chief Financial Officer of the Company, substantially
in the forms heretofore approved by you.
(g) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued by the Commission and no
proceedings for that purpose shall be pending or, to the knowledge of the
Company, shall be threatened or contemplated by the Commission at or prior to
the Closing Date or Additional Closing Date, as the case may be; (ii) no order
suspending the effectiveness of the Registration Statement or the qualification
or registration of the Shares under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending or, to the knowledge of the Company, threatened or contemplated by the
authorities of any jurisdiction; (iii) any request for additional information on
the part of the staff of the Commission or any such authorities shall have been
complied with to the satisfaction of the staff of the Commission or such
authorities; (iv) after the date hereof, no amendment or supplement to the
Registration Statement or the Prospectus shall have been filed unless a copy
thereof was first submitted to you and you did not
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object thereto in good faith; and (v) all of the representations and warranties
of the Company contained in this Agreement shall be true and correct in all
material respects (except for such representations and warranties qualified by
materiality, which representations and warranties shall be true and correct in
all respects) on and as of the date hereof and on and as of the Closing Date or
Additional Closing Date, as the case may be, as if made on and as of the Closing
Date or Additional Closing Date, as the case may be, and you shall have received
a certificate, dated the Closing Date and signed by the chief executive officer
and the chief financial officer of the Company (or such other officers as are
acceptable to you) to the effect set forth in this Section 9(g) and in Sections
9(b) and 9(i) hereof.
(h) The Company shall not have failed in any material respect at or
prior to the Closing Date or the Additional Closing Date, as the case may be, to
have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date or Additional Closing Date, as the case may be.
(i) The Company shall have furnished or caused to have been
furnished to you such further certificates and documents as you shall have
reasonably requested.
(j) At or prior to the Closing Date, you shall have received the
Lock-Up Agreements from each of the Company's officers and directors, the
Selling Stockholders and Xxxxxxxx Resources, Inc. not to directly or indirectly
(i) sell, offer or contract to sell or otherwise dispose of or transfer any
shares of Company Securities, whether now owned or acquired after the date of
the Prospectus or with respect to which the power of disposition is acquired
after the date of the Prospectus, or file any registration statement under the
Act with respect to the foregoing or (ii) enter into any swap or other agreement
or any other agreement that transfers, in whole or in part, directly or
indirectly, the economic consequences of ownership of Company Securities whether
any such swap or transaction is to be settled by delivery of Company Securities,
in cash or otherwise; other than as provided in such written commitment before
the expiration of 180 days from the Closing Date, without the prior written
consent of Xxxxxxx Xxxxx & Associates, Inc.
(k) At or prior to the effective date of the Registration Statement,
you shall have received a letter from the Corporate Financing Department of the
NASD confirming that such Department has determined to raise no objections with
respect to the fairness or reasonableness of the underwriting terms and
arrangements of the offering contemplated hereby.
(l) You shall be satisfied that, and you shall have received a
certificate dated the Closing Date from each Selling Stockholder to the effect
that, as of the Closing Date: (i) the representations and warranties made by
such Selling Stockholders herein are true and correct in all material respects
on the Closing Date and (ii) such Selling Stockholder has complied with all
obligations and satisfied all conditions that are required to be performed or
satisfied on his or its part at or prior to the Closing Date.
(m) The Company shall have completed its conversion from a Nevada
limited
-33-
liability company into a Nevada corporation, and all transactions described in
the Prospectus under the heading "Certain Relationships and Related Party
Transactions - Conversion Transactions" shall have been completed in the manner
described therein.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the satisfaction on and as of the Additional Closing
Date of the conditions set forth in this Section 9, except that, if the
Additional Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in this Section 9 shall be dated as of the
Additional Closing Date and the opinions called for by paragraphs (c) and (e)
shall be revised to reflect the sale of Additional Shares.
If any of the conditions hereinabove provided for in this Section 9 shall
not have been satisfied when and as required by this Agreement, this Agreement
may be terminated by you by notifying the Company of such termination in writing
or by telegram at or prior to such Closing Date, but you shall be entitled to
waive any of such conditions.
10. Effective Date of Agreement. This Agreement shall become effective
upon the later of (a) the execution and delivery hereof by the parties hereto
and (b) release of notification of the effectiveness of the Registration
Statement by the Commission; provided, however, that the provisions of Sections
7 and 8 shall at all times be effective.
11. Defaulting Underwriters. If any one or more of the Underwriters shall
fail or refuse to purchase Firm Shares that it or they have agreed to purchase
hereunder, and the aggregate number of Firm Shares that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Firm Shares, each non-defaulting
Underwriter shall be obligated, severally, in the proportion in which the number
of Firm Shares set forth opposite its name in Schedule I hereto bears to the
aggregate number of Firm Shares set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
the Agreement Among Underwriters, to purchase the Firm Shares that such
defaulting Underwriter or Underwriters agreed, but failed or refused to
purchase. If any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares and
arrangements satisfactory to you and the Company for the purchase of such Firm
Shares are not made within 48 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case that does not result in termination of this Agreement,
either you or the Company shall have the right to postpone the Closing Date, but
in no event for longer than seven (7) days, in order that the required changes,
if any, in the Registration Statement and the Prospectus or any other documents
or arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any such default
of any such Underwriter under this Agreement.
-34-
12. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company by notice to the Company, if prior to the Closing
Date or the Additional Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, in your sole judgment,
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the NYSE, (ii) trading in securities generally on the NYSE shall
have been suspended or materially limited, or minimum or maximum prices shall
have been generally established on such exchange, or additional material
governmental restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by any such exchange or
by order of the Commission or any court or other governmental authority, (iii) a
general moratorium on commercial banking activities shall have been declared by
either federal or New York State authorities, (iv) any downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, (v) any such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities or (vi) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions or other material event the effect
of which on the financial markets of the United States is such as to make it, in
your reasonable judgment, impracticable or inadvisable to market the Shares or
to enforce contracts for the sale of the Shares. Notice of such cancellation
shall be promptly given to the Company and its counsel by telegraph, telecopy or
telephone and shall be subsequently confirmed by letter.
13. Failure of One or More of the Selling Stockholders to Sell and Deliver
the Shares. If one or more of the Selling Stockholders shall fail to sell and
deliver to the Underwriters the Firm Shares to be sold and delivered by such
Selling Stockholders at the Closing Date pursuant to this Agreement, then the
Underwriters may at their option, by written notice from the Representatives to
the Company and the Selling Stockholders, either (i) terminate this Agreement
without any liability on the part of any Underwriter or, except as provided in
Sections 7 and 8 hereof, the Company or the Selling Stockholders or (ii)
purchase the Shares that the Company and other Selling Stockholders have agreed
to sell and deliver in accordance with the terms hereof. If one or more of the
Selling Stockholders shall fail to sell and deliver to the Underwriters the Firm
Shares to be sold and delivered by such Selling Stockholders pursuant to this
Agreement at the Closing Date, then the Underwriters shall have the right, by
written notice from the Representatives to the Company and the Selling
Stockholders, to postpone the Closing Date, but in no event for longer than
seven days in order that the required changes, if any, to the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected.
14. Information Furnished by the Underwriters. The Company acknowledges
that the third, tenth through fourteenth, sixteenth, seventeenth, twentieth and
twenty-first paragraphs under the caption "Underwriting" in any Preliminary
Prospectus and the Prospectus, constitute the only information furnished by or
on behalf of the Underwriters through you or on your behalf
-35-
as such information is referred to in Sections 6.1(a), 6.1(b) and 8 hereof.
15. Miscellaneous. Except as otherwise provided in Sections 5 and 12
hereof, notice given pursuant to any of the provisions of this Agreement shall
be in writing and shall be delivered
(i) to the Company
Bois d'Arc Energy, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
with a copy to
Xxxx X. Xxxxxxxx
Xxxxx Liddell & Xxxx LLP
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000-0000
(ii) to the Underwriters
Xxxxxxx Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: [_________________]
with a copy to
Xxxxxxxx X. Xxxxxxx
Xxxxx Xxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000-0000
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company and its directors and officers and the Selling
Stockholders.
16. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without reference
to choice of law principles thereunder.
This Agreement may be signed in various counterparts, which together shall
constitute one and the same instrument.
-36-
This Agreement shall be effective when, but only when, at least one
counterpart hereof shall have been executed on behalf of each party hereto.
The Company, the Selling Stockholders and the Underwriters each hereby
irrevocably waive any right they may have to a trial by jury in respect to any
claim based upon or arising out of this Agreement or the transactions
contemplated hereby.
17. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
-37-
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
Bois d'Arc Energy, LLC
By: __________________________________________
Name: ________________________________________
Title: _______________________________________
The Selling Stockholders named in Schedule II
hereto, acting severally
By: ________________________________
Attorney-in-Fact
CONFIRMED as of the date first
above mentioned, on behalf of the
Representatives and the other
several Underwriters named in
Schedule I hereto.
XXXXXXX XXXXX & ASSOCIATES, INC.
By: ______________________________
Authorized Representative
SCHEDULE I
Number of
Name Firm Shares
---- -----------
Xxxxxxx Xxxxx & Associates, Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
Xxxxxxx Xxxx & Company L.L.C.
Xxxxxx Xxxxxxx Corp.
Xxxxxx Xxxxxxx & Co., Inc.
Calyon Securities (USA) Inc.
Hibernia Southcoast Capital, Inc.
KeyBanc Capital Markets, a Division of McDonald Investments Inc.
-----------
TOTAL: 13,540,000
===========
SCHEDULE II
Schedule of Selling Stockholders
Number of
Firm Shares
Stockholder to be Sold
----------- -----------
Xxxxx Xxxxxxx 1,500,000
Xxx Petroleum of LA, LLC 40,000
EXHIBIT A
_______, 2005
BOIS D'ARC ENERGY, LLC
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representative of the Several Underwriters
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
RE: BOIS D'ARC ENERGY, INC. (THE "COMPANY") - RESTRICTION ON STOCK SALES
Dear Sirs:
This letter is delivered to you pursuant to the Underwriting Agreement
(the "Underwriting Agreement") to be entered into by the Company, as issuer, the
selling stockholders named therein and Xxxxxxx Xxxxx & Associates, Inc., the
representative (the "Representative") of certain underwriters (the
"Underwriters") to be named therein. Upon the terms and subject to the
conditions of the Underwriting Agreement, the Underwriters intend to effect a
public offering of Common Stock, par value $0.01 per share, of the Company (the
"Shares"), as described in and contemplated by the registration statement of the
Company on Form S-1, File No. 333-119511 (the "Registration Statement"), as
originally filed with the Securities and Exchange Commission on October 4, 2004
(the "Offering").
On or prior to the closing of the Offering, pursuant to the filing of
articles of conversion and articles of incorporation with the Secretary of State
of the State of Nevada, Bois d'Arc Energy, LLC, a Nevada limited liability
company ("Bois d'Arc LLC"), will convert into Bois d'Arc Energy, Inc., a Nevada
corporation ("Bois d'Arc Inc."). As used in this letter, prior to the
consummation of such conversion, references to the "Company" shall be deemed to
be references to Bois d'Arc LLC, and after the consummation of such conversion,
references to the "Company" shall be deemed to be references to Bois d'Arc Inc.
The undersigned recognizes that it is in the best financial interests of
the undersigned, as an officer or director, or an owner of stock, options,
warrants or other securities of the Company (the "Company Securities"), that the
Company complete the proposed Offering.
The undersigned further recognizes that the Company Securities held by the
undersigned
A-1
are, or may be, subject to certain restrictions on transferability, including
those imposed by United States federal securities laws. Notwithstanding these
restrictions, the undersigned has agreed to enter into this letter agreement to
further assure the Underwriters that the Company Securities of the undersigned,
now held or hereafter acquired, will not enter the public market at a time that
might impair the underwriting effort.
Therefore, as an inducement to the Underwriters to execute the
Underwriting Agreement, the undersigned hereby acknowledges and agrees that the
undersigned will not (i) offer, sell, contract to sell, pledge, grant any option
to purchase or otherwise dispose of (collectively, a "Disposition") any Company
Securities, or any securities convertible into or exercisable or exchangeable
for, or any rights to purchase or otherwise acquire, any Company Securities held
by the undersigned or acquired by the undersigned after the date hereof, or that
may be deemed to be beneficially owned by the undersigned (collectively, the
"Lock-Up Shares"), pursuant to the Rules and Regulations promulgated under the
Securities Act of 1933, as amended (the "Act"), and the Securities Exchange Act
of 1934, as amended, for a period commencing on the date hereof and ending 180
days after the date of the Company's Prospectus first filed pursuant to Rule
424(b) under the Act, inclusive (the "Lock-Up Period"), without the prior
written consent of Xxxxxxx Xxxxx & Associates, Inc. or (ii) exercise or seek to
exercise or effectuate in any manner any rights of any nature that the
undersigned has or may have hereafter to require the Company to register under
the Act the undersigned's sale, transfer or other disposition of any of the
Lock-Up Shares or other securities of the Company held by the undersigned, or to
otherwise participate as a selling securityholder in any manner in any
registration effected by the Company under the Act, including under the
Registration Statement, during the Lock-Up Period. The foregoing restrictions
are expressly agreed to preclude the undersigned from engaging in any hedging,
collar (whether or not for any consideration) or other transaction that is
designed to or reasonably expected to lead or result in a Disposition of Lock-Up
Shares during the Lock-Up Period, even if such Lock-Up Shares would be disposed
of by someone other than such holder. Such prohibited hedging or other
transactions would include any short sale or any purchase, sale or grant of any
right (including any put or call option or reversal or cancellation thereof)
with respect to any Lock-Up Shares or with respect to any security (other than a
broad-based market basket or index) that includes, relates to or derives any
significant part of its value from Lock-Up Shares.
Notwithstanding the agreement not to make any Disposition during the
Lock-Up Period, you have agreed that the foregoing restrictions shall not apply
to:
(1) the Company Securities being offered in the prospectus included in
the Registration Statement; or
(2) any grant or exercise of options pursuant to the Company's stock
option plans.
It is understood that, if the Underwriting Agreement (other than the
provisions thereof that survive termination) shall terminate or be terminated
prior to payment for and delivery of the Shares, you will release the
undersigned from the obligations under this letter agreement.
A-2
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of Lock-Up
Shares if such transfer would constitute a violation or breach of this letter.
This letter shall be binding on the undersigned and the respective successors,
heirs, personal representatives and assigns of the undersigned. Capitalized
terms used but not defined herein have the respective meanings assigned to such
terms in the Underwriting Agreement.
Very truly yours,
Signature of Securityholder
A-3
