Exhibit 1.1
8,750,000
XXXXXX XXXXXXX HALTER, INC.
Common Stock
UNDERWRITING AGREEMENT
June 22, 2000
RBC DOMINION SECURITIES CORPORATION
XXXXXXXXX & COMPANY, INC.
c/o RBC Dominion Securities Corporation
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. Xxxxxx Xxxxxxx Halter, Inc., a Mississippi corporation
(the "Company"), proposes to sell, pursuant to the terms of this Agreement, to
the several underwriters named in Schedule A hereto (the "Underwriters," or,
each, an "Underwriter"), an aggregate of 8,750,000 shares of Common Stock, $.01
par value (the "Common Stock"), of Xxxxxx Xxxxxxx Halter, Inc., a Mississippi
corporation (the "Company"). The aggregate of 8,750,000 shares so proposed to be
sold is hereinafter referred to as the "Stock".
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-39308) in
respect of various debt securities, equity securities, depository shares
and warrants of the Company, including the Stock, has been filed with the
Securities and Exchange Commission (the "Commission") pursuant to Rule 415
under the Securities Act of 1933, as amended (the "Securities Act"); such
registration statement and any post-effective amendment thereto, each in
the form heretofore delivered to you, excluding exhibits thereto, but
including all documents incorporated by reference in the base prospectus
included in such registration statement, have been declared effective by
the Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission (other
than prospectuses filed pursuant to Rule 424(b) of the Securities Act and
the rules and regulations (the "Rules and Regulations") of the Commission
thereunder; and no stop order suspending the effectiveness of the
registration statement has been issued and no proceeding for that purpose
has been initiated or, to the knowledge of the Company, threatened by the
Commission (the various parts of the registration statement, including all
exhibits thereto and including (i) the information contained in the form of
base prospectus included in the registration statement, as supplemented to
reflect the final terms of the offering of the Stock, filed with the
Commission pursuant to Rule 424(b) under the Securities Act and (ii) the
documents incorporated by reference in such base prospectus at the time
such part of the registration statement became effective, each as amended
at the time such part of the registration
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statement became effective are hereinafter collectively called the
"Registration Statement"; the base prospectus, as supplemented to reflect
the final terms of the offering of the Stock in the form first filed
pursuant to Rule 424(b) under the Securities Act, being hereinafter called
the "Prospectus"; any reference herein to the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Securities Act, as of the date of
the Prospectus; any reference to any amendment or supplement to the
Prospectus shall be deemed to refer to and include any documents filed
after the date of the Prospectus under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and incorporated by reference in the
Prospectus; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the Company
filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement); and no document has been or will
be prepared or distributed in reliance on Rule 434 under the Securities
Act.;
(b) The Registration Statement conforms, and the Prospectus and any
amendments or supplements to the Registration Statement or the Prospectus,
when they become effective or are filed with the Commission, as the case
may be, will conform, in all material respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will not, as of
the applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) 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 not
misleading (in the case of the Prospectus, in light of the circumstances in
which such statements were made); provided, however, that the foregoing
representations and warranties shall not apply to information contained in
or omitted from the Registration Statement or the Prospectus or any such
amendment or supplement thereto in reliance upon, and in conformity with,
written information furnished to the Company by the Underwriters
specifically for inclusion therein.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents become
effective or are filed with Commission, as the case may be, will conform in
all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not 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 light of the
circumstances under which they were made, not misleading.
(d) The Company and each of its significant subsidiaries (as defined
in Section 1-02(w) of Regulation S-X under the Securities Act) (each a
"Subsidiary" and collectively, the "Subsidiaries") have been duly
incorporated and are validly existing as
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corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and are
in good standing as foreign corporations in each jurisdiction in which
their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged, except where the failure
to so qualify or have such power or authority would not have, singularly or
in the aggregate, a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
The only Subsidiaries of the Company are Xxxxxx Xxxxxxx Offshore, Inc.
and Halter Marine, Inc.
(e) This Agreement has been duly authorized executed and delivered by
the Company.
(f) The Stock to be issued and sold by the Company to the
Underwriters hereunder has been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and nonassessable and free of any
preemptive or similar rights and will conform to the description thereof
contained in the Prospectus.
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company,
have been duly and validly authorized and issued, are fully paid and non-
assessable and conform to the description thereof contained in the
Prospectus.
(h) All the outstanding shares of capital stock of each Subsidiary of
the Company have been duly authorized and validly issued, are fully paid
and nonassessable and, except to the extent set forth in the Prospectus,
are owned by the Company directly or indirectly through one or more wholly-
owned subsidiaries, free and clear of any claim, lien, encumbrance,
security interest, restriction upon voting or transfer or any other claim
of any third party.
(i) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound or to which any of the property or assets
of the Company or any of its Subsidiaries is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws of the
Company or any of its Subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its Subsidiaries or any of their properties or
assets.
(j) Except for the registration of the Stock under the Securities Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required
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under the Exchange Act and applicable state securities laws in connection
with the purchase and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement by the Company and
the consummation of the transactions contemplated hereby.
(k) Both Ernst & Young, LLP and Xxxxxx Xxxxxxxx, LLP, who have
expressed their opinions on the audited financial statements and related
schedules included or incorporated by reference in the Registration
Statement and the Prospectus are independent public accountants as required
by the Securities Act and the Rules and Regulations.
(l) The financial statements, together with the related notes and
schedules, included or incorporation by reference in the Prospectus and in
the Registration Statement fairly present the financial position and the
results of operations and changes in financial position of the Company and
its consolidated subsidiaries at the respective dates or for the respective
periods therein specified. Such statements and related notes and schedules
have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis except as may be set forth in the
Prospectus.
(m) Neither the Company nor any of its Subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since such date, there has not been
any change in the capital stock or long-term debt of the Company or any of
its Subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
business, general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole, otherwise than as set forth or contemplated in the Prospectus.
(n) Except as set forth in the Prospectus, there is no legal or
governmental proceeding pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company
or any of its subsidiaries is the subject which, singularly or in the
aggregate, if determined adversely to the Company or any of its
subsidiaries, might have a Material Adverse Effect or would prevent or
adversely affect the ability of the Company to perform its obligations
under this Agreement; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(o) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any respect, and
no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is a
party or by which it is bound or to which any of its property or assets is
subject or (iii) is in violation in any respect of any law, ordinance,
governmental rule, regulation or court decree to
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which it or its property or assets may be subject, except any violations or
defaults which, singularly or in the aggregate, in the case of any of (i),
(ii) and (iii), would not have a Material Adverse Effect.
(p) The Company and each of its subsidiaries possess all licenses,
approvals, orders, certificates, rights-of-way, operating rights,
easements, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate state, federal or foreign
regulatory agencies or bodies which are necessary or desirable for the
ownership of their respective properties or the conduct of their respective
businesses as described in the Prospectus ("Permits") except where any
failures to possess or make the same, singularly or in the aggregate, would
not have a Material Adverse Effect; and the Company and each of its
subsidiaries have fulfilled and performed all current material obligations
with respect to such Permits and no event has occurred that allows, or
after notice or lapse of time, or both, would allow, revocation or
termination thereof or result in any other material impairment or
restrictions that are materially burdensome to the Company and its
subsidiaries taken as a whole.
(q) Neither the Company nor any of its Subsidiaries is or, after
giving effect to the offering of the Stock and the application of the
proceeds thereof as described in the Prospectus will become an "investment
company" within the meaning of the U. S. Investment Company Act of 1940, as
amended and the rules and regulations of the Commission thereunder.
(r) Neither the Company nor any of its officers, directors or
affiliates has taken or will take, directly or indirectly, any action
designed or intended to stabilize or manipulate the price of any security
of the Company, or which caused or resulted in, or which might in the
future reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company.
(s) The Company and its Subsidiaries own or possess the right to use
all patents, trademarks, trademark registrations, service marks, service
xxxx registrations, trade names, copyrights, licenses, inventions, trade
secrets and rights described in the Prospectus as being owned by them for
the conduct of their respective businesses, and the Company is not aware of
any claim to the contrary or any challenge by any other person to the
rights of the Company and its Subsidiaries with respect to the foregoing.
The Company's business as now conducted and as proposed to be conducted
does not and will not infringe or conflict with any patents, trademarks,
service marks, trade names, copyrights, trade secrets, licenses or other
intellectual property or franchise right of any person. Except as described
in the Prospectus, no claim has been made against the Company alleging the
infringement by the Company of any patent, trademark, service xxxx, trade
name, copyright, trade secret, license in or other intellectual property
right or franchise right of any person that may result in a Material
Adverse Effect.
(t) The Company and each of its subsidiaries have good and marketable
title to, or have valid rights to lease or otherwise use, all items of real
or personal property which are material to the business of the Company and
its subsidiaries taken as a whole, in each case free and clear of all
liens, encumbrances, claims and defects that may result in a Material
Adverse Effect.
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(u) No labor disturbance by the employees of the Company or any of
its subsidiaries exists or, to the best of the Company's knowledge, is
imminent which might be expected to have a Material Adverse Effect. The
Company is not aware that any key employee or significant group of
employees of the Company or any subsidiary plans to terminate employment
with the Company or any such subsidiary.
(v) No "prohibited transaction" (as defined in Section 406 of the U.
S. Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"), or
Section 4975 of the U. S. Internal Revenue Code of 1986, as amended from
time to time (the "Code")) or "accumulated funding deficiency" (as defined
in Section 302 of ERISA or Section 412 of the Code) or any of the events
set forth in Section 4043(c) of ERISA (other than events with respect to
which the 30-day notice requirement under Section 4043 of ERISA has been
waived) has occurred with respect to any employee benefit plan which could
have a Material Adverse Effect; each employee benefit plan is in compliance
in all material respects with applicable law, including ERISA and the Code;
the Company has not incurred and does not expect to incur liability under
Title IV of ERISA with respect to the termination of, or withdrawal from,
any "pension plan" (as defined in ERISA) which could have a Material
Adverse Effect; and each "pension plan" for which the Company would have
any liability that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which could cause the loss of such
qualification.
(w) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind of
toxic or other wastes or other hazardous substances by, due to, or caused
by the Company or any of its subsidiaries (or, to the best of the Company's
knowledge, any other entity for whose acts or omissions the Company or any
of its subsidiaries is or may be liable) upon any of the property now or
previously owned or leased by the Company or any of its subsidiaries, or
upon any other property, in violation of any statute or any ordinance,
rule, regulation, order, judgment, decree or permit or which would, under
any statute or any ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to any liability,
except for any violation or liability which would not have, singularly or
in the aggregate with all such violations and liabilities, a Material
Adverse Effect; there has been no disposal, discharge, emission or other
release of any kind onto such property or into the environment surrounding
such property of any toxic or other wastes or other hazardous substances
with respect to which the Company or any of its subsidiaries have
knowledge, except for any such disposal, discharge, emission, or other
release of any kind which would not have, singularly or in the aggregate
with all such discharges and other releases, a Material Adverse Effect.
(x) The Company and its Subsidiaries each (i) have filed all
necessary federal, state, local and foreign income and franchise tax
returns, (ii) have paid all federal, state, local and foreign taxes due and
payable for which it is liable, and (iii) do not have any tax deficiency or
claims outstanding or assessed or, to the best of the Company's knowledge,
proposed against it which could reasonably be expected to have a Material
Adverse Effect.
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(y) The Company and each of its Subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is reasonably
adequate for the conduct of their respective businesses and the value of
their respective properties and as is customary for companies engaged in
similar businesses in similar industries.
(z) The Company and each of its Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in 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 authorization; 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.
(aa) The minute books of the Company and each of its Subsidiaries have
been made available to the Underwriters and counsel for the Underwriters,
and such books (i) contain a complete summary of all meetings and actions
of the directors and shareholders of the Company and each of its
Subsidiaries since the time of its respective incorporation through the
date of the latest meeting and action, and (ii) accurately in all material
respects reflect all transactions referred to in such minutes.
(bb) There is no franchise, lease, contract, agreement or document
required by the Securities Act or by the Rules and Regulations to be
described in the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed therein as required;
and all descriptions of any such franchises, leases, contracts, agreements
or documents contained in the Registration Statement are accurate and
complete descriptions of such documents in all material respects.
(cc) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is required
to be described in the Prospectus and which is not so described.
(dd) No person or entity has the right to require registration of
shares of Common Stock or other securities of the Company because of the
filing or effectiveness of the Registration Statement or otherwise, except
for persons and entities who have expressly waived such right or who have
been given proper notice and have failed to exercise such right within the
time or times required under the terms and conditions of such right.
(ee) Except with respect to this Agreement, neither the Company nor
any of its subsidiaries is a party to any contract, agreement or
understanding with any person that would give rise to a valid claim against
the Company or the Underwriters for a brokerage commission, finder's fee or
like payment in connection with the offering and sale of the Stock.
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(ff) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in the
Prospectus has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(gg) None of the Company or any of its subsidiaries does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Florida Statutes Section 517.075.
3. Purchase Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters the Stock, and each Underwriter agrees, severally and not jointly,
to purchase from the Company that number of shares of Stock set forth opposite
the name of such Underwriter in Schedule A hereto.
The purchase price per share to be paid by the Underwriters to Xxxxxx
Xxxxxxx Halter, Inc. for the Stock will be $7.96 per share (the "Purchase
Price").
Xxxxxx Xxxxxxx Halter, Inc. will deliver the Stock to the Underwriters for
the respective accounts of the several Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the Underwriters
may direct by notice in writing to the Company given at or prior to 12:00 Noon,
New York time, on the second full business day preceding the Closing Date (as
defined below), unless RBC Dominion shall direct the Stock will be issued in
book-entry form), against payment of the aggregate Purchase Price therefor by
wire transfer to an account at a bank acceptable to RBC Dominion, payable to the
order of Xxxxxx Xxxxxxx Halter, Inc., all at the offices of Xxxxxxx & Xxxxx
L.L.P, 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligations of each Underwriter hereunder. The
time and date of the delivery and closing shall be at 10:00 A.M., New York time,
on June 27, 2000, in accordance with Rule 15c6-1 of the Exchange Act. The time
and date of such payment and delivery are herein referred to as the "Closing
Date". The Closing Date and the location of delivery of, and the form of payment
for, the Stock may be varied by agreement between the Company and RBC Dominion.
Xxxxxx Xxxxxxx Halter, Inc. shall make the certificates for the Stock
available to the Underwriters for examination in New York, New York at least
twenty-four hours prior to the Closing Date. If the Stock will be issued in
book-entry form, the Company shall deposit the global certificate representing
the Stock with the Depository Trust Company ("DTC") or its designated custodian
at the Closing Date, and the Company will deliver such global certificate to the
Underwriters by causing DTC to credit the Stock to the account of RBC Dominion
Securities Corporation at DTC.
The several Underwriters propose to offer the Stock for sale upon the terms
and conditions set forth in the Prospectus.
4. Further Agreements of the Company. The Company agrees with the several
Underwriters that:
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(a) The Company will prepare the Prospectus in a form approved by the
Underwriters and file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the second business day following the
execution and delivery of this Agreement; make no further amendment or any
supplement to the Registration Statement or to the Prospectus prior to the
Closing Date to which the Underwriters shall reasonably object by notice to
the Company after a reasonable period to review; advise the Underwriters,
promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Underwriters with copies thereof; file promptly all reports
and any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Stock; advise the Underwriters, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of the Prospectus,
of the suspension of the qualification of the Stock for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of the Prospectus or
suspending any such qualification, use promptly its best efforts to obtain
its withdrawal.
(b) If at any time prior to the expiration of three months after the
effective date of the Registration Statement when a prospectus relating to
the Stock is required to be delivered any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact, or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend
the Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus to comply with the Securities Act or the
Exchange Act, the Company will promptly notify the Underwriters thereof and
upon their request will prepare an amended or supplemented Prospectus or
make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act
which will correct such statement or omission or effect such compliance.
The Company will furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Underwriters may from time to
time reasonably request of such amended or supplemented Prospectus; and in
case any Underwriter is required to deliver a prospectus relating to the
Stock three months or more after the effective date of the Registration
Statement, the Company upon the request of the Underwriters and at the
expense of such Underwriter will prepare promptly an amended or
supplemented Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Securities Act.
(c) To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
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(d) To deliver promptly to the Underwriters in New York City such
number of the following documents as the Underwriters shall reasonably
request: (i) conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto (in each case
excluding exhibits), (ii) the Prospectus (not later than 5:00 P.M., New
York time, on the business day following the execution and delivery of this
Agreement) and any amended or supplemented Prospectus (not later than 10:00
A.M., New York City time, on the business day following the date of such
amendment or supplement) and (iii) any document incorporated by reference
in the Prospectus (excluding exhibits thereto).
(e) To make generally available to its shareholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Securities Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act and the Rules and Regulations (including, at the option
of the Company, Rule 158).
(f) The Company will promptly take from time to time such actions as
the Underwriters may reasonably request to qualify the Stock for offering
and sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriters may designate and to continue such qualifications in effect
for so long as required for the distribution of the Stock; provided that
the Company and its subsidiaries shall not be obligated to qualify as
foreign corporations in any jurisdiction in which they are not so qualified
or to file a general consent to service of process in any jurisdiction;
(g) During the period of two years from the date hereof, the Company
will deliver to the Underwriters (i) as soon as they are available, copies
of all reports or other communications furnished to shareholders and (i) as
soon as they are available, copies of any reports and financial statements
furnished or filed with the Commission pursuant to the Exchange Act or any
national securities exchange or automatic quotation system on which the
Stock is listed or quoted.
(h) The Company will not directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of any shares of
Common Stock or securities convertible into or exercisable or exchangeable
for Common Stock, or enter into any derivative transaction with similar
effect as a sale of such Common Stock, for a period of 90 days from the
date of the Prospectus without the prior written consent of RBC Dominion
other than the Company's sale of the Stock hereunder and the issuance of
shares pursuant to employee benefit plans, qualified stock option plans or
other employee compensation plans existing on the date hereof or pursuant
to currently outstanding options, warrants or rights.
(i) The Company will supply the Underwriters with copies of all
correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Stock under the
Securities Act.
(j) Prior to the Closing Date, the Company will not issue any press
release or other communication directly or indirectly or hold any press
conference with respect to
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the Company, its condition, financial or other, or earnings, business
affairs or business prospects (except for routine oral marketing
communications in the ordinary course of business and consistent with the
past practices of the Company and of which the Underwriters are notified),
without the prior written consent of the Underwriters, unless in the
judgment of the Company and its counsel, and after notification to the
Underwriters, such press release or communication is required by law.
(k) In connection with the offering of the Stock, until RBC Dominion
shall have notified the Company of the completion of the resale of the
Stock, the Company will not, and will cause its affiliated purchasers (as
defined in Regulation M under the Exchange Act) not to, either alone or
with one or more other persons, bid for or purchase, for any account in
which it or any of its affiliated purchasers has a beneficial interest, any
Stock, or attempt to induce any person to purchase any Stock; and not to,
and to cause its affiliated purchasers not to, make bids or purchase for
the purpose of creating actual, or apparent, active trading in or of
raising the price of the Stock.
(l) The Company will not take any action prior to the Closing Date
which would require the Prospectus to be amended or supplemented pursuant
to Section 4(b).
(m) The Company will apply the net proceeds from the sale of the
Stock as set forth in the Prospectus under the heading "Use of Proceeds".
(n) The Company will use its best efforts to list, subject to notice
of issuance, the Stock on The New York Stock Exchange.
(o) The Company will use its best efforts to deliver within four
business days after the Closing Date, the written agreements, substantially
in the form of Exhibit I hereto, of the directors and shareholders of the
Company listed in Schedule B to this Agreement.
5. Payment of Expenses. The Company agrees with the Underwriter to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Stock and any taxes payable in that connection; (b) the costs
incident to the registration of the Stock under the Securities Act; (c) the
costs incident to the preparation, printing and distribution of the Registration
Statement, Prospectus, any amendments and exhibits thereto or any document
incorporated by reference therein and the costs of printing, reproducing and
distributing this Agreement by mail, telex or other means of communications; (d)
the fees and expenses (including related fees and expenses of counsel for the
Underwriters) incurred in connection with filings made with the National
Association of Securities Dealers; (e) any applicable New York Stock Exchange
listing fees and related fees; (f) the fees and expenses of qualifying the Stock
under the securities laws of the several jurisdictions as provided in Section
4(f) and of preparing, printing and distributing any Blue Sky Memoranda and
related surveys (including related fees and expenses of counsel to the
Underwriters); (g) all fees and expenses of the registrar and transfer agent of
the Stock; and (h) all other costs and expenses incident to the performance of
the obligations of the Company under this Agreement (including, without
limitation, the fees and expenses of the Company's counsel and the Company's
independent accountants); provided that, except as otherwise provided in this
Section 5 and in Section 9, the Underwriters shall pay their own costs and
expenses, including the fees and expenses of their counsel, any transfer taxes
on
11
the Stock which they may sell and the expenses of advertising any offering of
the Stock made by the Underwriters.
6. Conditions of Underwriters' Obligations. The respective obligations of
the several Underwriters hereunder are subject to the accuracy, when made and on
the Closing Date, of the representations and warranties of the Company contained
herein, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of their obligations hereunder, and to each of the following additional
terms and conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been initiated or threatened by the Commission, and any request for
additional information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been
complied with to the reasonable satisfaction of the Underwriters. The
Prospectus shall have been timely filed with the Commission in accordance
with Section 4(a).
(b) None of the Underwriters shall have discovered and disclosed to
the Company on or prior to the Closing Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel for the Underwriters,
is material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of this Agreement, the Stock, the
Registration Statement and the Prospectus and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall
be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) Xxxxxxx & Eager PLLC shall have furnished to the Underwriters
such counsel's written opinion, as local counsel to the Company, addressed
to the Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriters, to the effect that:
(i) Each of the Company and Xxxxxx Xxxxxxx Offshore, Inc. is duly
incorporated and validly existing as a corporation in good
standing under the laws of the State of Mississippi, is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its respective
ownership or lease of property or the conduct of its respective
businesses requires such qualification, and has all corporate
power and authority necessary to own or hold its respective
properties and to conduct the businesses in which it is engaged,
except where the failure to so qualify or have such power or
authority would not have, singularly or in the aggregate, a
Material Adverse Effect.
12
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the shares of Stock being delivered
on the Closing Date, have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the
description thereof contained in the Prospectus.
(iii) All the outstanding shares of capital stock of Xxxxxx Xxxxxxx
Offshore, Inc. have been duly authorized and validly issued,
are fully paid and nonassessable and, except to the extent set
forth in the Prospectus, are owned by the Company directly (or
indirectly through one or more wholly-owned subsidiaries), and
to the best of such counsel's knowledge, free and clear of any
claim, lien, encumbrance, security interest, restriction upon
voting or transfer or any other claim of any third party.
(iv) This Agreement has been duly authorized, executed and delivered
by the Company, and the Company has full corporate power and
authority to enter into this Agreement.
(v) To such counsel's knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property or asset of the Company or any
of its subsidiaries is the subject which, singularly or in the
aggregate, if determined adversely to the Company or any of its
subsidiaries, might have a Material Adverse Effect or would
prevent or adversely affect the ability of the Company to
perform its obligations under this Agreement;
(e) Lionel, Xxxxxx & Xxxxxxx shall have furnished to the
Underwriters such counsel's written opinion, as local counsel to the
Company, addressed to the Underwriters and dated the Closing Date, in form
and substance reasonably satisfactory to the Underwriters, to the effect
that:
(i) Halter Marine, Inc. has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Nevada and has all corporate power and authority necessary to
own or hold its properties and to conduct the businesses in
which it is engaged.
(iii) All the outstanding shares of capital stock of Halter Marine,
Inc. have been duly authorized and validly issued, are fully
paid and nonassessable and, except to the extent set forth in
the Prospectus, are owned by the Company directly (or
indirectly through one or more wholly-owned subsidiaries), and
to the best of such counsel's knowledge, free and clear of any
claim, lien, encumbrance, security interest, restriction upon
voting or transfer or any other claim of any third party.
(f) Xxxxxxx & Xxxxx, LLP shall have furnished to the Underwriters
such counsel's written opinion, as counsel to the Company, addressed to the
Underwriters and
13
dated the Closing Date, in form and substance reasonably satisfactory to
the Underwriters, to the effect that:
(i) Except as described in the Prospectus or for the documents
filed as exhibits to the Registration Statement, to such
counsel's knowledge, there are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any shares of the Stock pursuant to the
Company's charter or by-laws or any agreement or other
instrument known to such counsel.
(ii) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will
not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under any
agreement which is filed as an exhibit to the Company's Annual
Report on Form 10-K for the year ended December 31, 1999, nor
will such actions result in any violation of the Charter or by-
laws of the Company or of any of its Subsidiaries or, to such
counsel's knowledge, any statute or any order, rule or
regulation of any court or governmental agency or body or court
having jurisdiction over the Company or any of its subsidiaries
or any of their properties or assets.
(iii) Except for the registration of the Stock under the Securities
Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the
purchase and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of
this Agreement by the Company and the consummation of the
transactions contemplated hereby.
(iv) The statements in the Prospectus under the headings
"Description of Debt Securities," "Description of Equity
Securities" and "Description of Warrants," to the extent that
they constitute summaries of matters of law or regulation or
legal conclusions, have been reviewed by such counsel and
fairly summarize the matters described therein in all material
respects.
(v) To such counsel's knowledge, there are no statutes, legal or
governmental proceedings, contracts or other documents of a
character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described or filed as
required.
(vi) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such
opinion, the Prospectus was filed with the Commission pursuant
to the subparagraph of Rule 424(b)
14
of the Rules and Regulations specified in such opinion on the
date specified therein and no stop order suspending the
effectiveness of the Registration Statement has been issued
and, to the knowledge of such counsel, no proceeding for that
purpose is pending or threatened by the Commission.
(vii) The Registration Statement, as of its effective date, and the
Prospectus, as of its date, and any further amendments or
supplements thereto, as of their respective dates, made by the
Company prior to the Closing Date (other than the financial
statements and other financial data contained therein, as to
which such counsel need express no opinion) complied as to form
in all material respects with the requirements of the
Securities Act and the Rules and Regulations; and the documents
incorporated by reference in the Prospectus and any further
amendment or supplement to any such incorporated document made
by the Company prior to the Closing Date (other than the
financial statements and related schedules therein, as to which
such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder.
(viii) To such counsel's knowledge, no person or entity has the right
to require registration of shares of Common Stock or other
securities of the Company because of the filing or
effectiveness of the Registration Statement or otherwise,
except for persons and entities who have expressly waived such
right or who have been given proper notice and have failed to
exercise such right within the time or times required under the
terms and conditions of such right.
(ix) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment
Company Act and the rules and regulations of the Commission
thereunder.
Such counsel shall also have furnished to the Underwriters a
written statement, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that (x) such counsel has acted as
counsel to the Company in connection with the preparation of
the Registration Statement (y) based on such counsel's
examination of the Registration Statement and such counsel's
investigations made in connection with the preparation of the
Registration Statement and "conferences with certain officers
and employees of and with auditors for and counsel to the
Company", such counsel has no reason to believe that (I) the
Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus contains any
untrue statement of a material fact or omits to state any
material fact
15
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading or (II) any document
incorporated by reference in the Prospectus or any further
amendment or supplement to any such incorporated document made
by the Company prior to the Closing Date, when they were filed
with the Commission contained, in the case of a registration
statement which became effective under the Securities Act, any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or, in the
case of other documents which were filed under the Exchange Act
with the Commission, any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading; it being understood that
such counsel need express no opinion as to the financial
statements, and the notes thereto and the related schedules or
other financial, numerical or statistical data contained in the
Registration Statement or the Prospectus.
The foregoing opinion and statement may be qualified by a statement to
the effect that such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus and takes no responsibility therefor except to
the extent set forth in the opinion described in clause (iv) above.
In rendering their opinions set forth in Section 6(f) above, such
counsel may rely, to the extent deemed advisable by such counsel, as to the
laws of any jurisdiction other than the United States and jurisdictions in
which they are admitted, on opinions of counsel (provided, however, that
you shall have received a copy of each of such opinions which shall be
dated the Closing Date, addressed to you or otherwise authorizing you to
rely thereon, and Xxxxxxx & Xxxxx, in its opinion to you delivered pursuant
to this subsection, shall state that such counsel are satisfactory to them
and Xxxxxxx & Xxxxx has no reason to believe that the Underwriters and they
are not justified to so rely).
(g) The Underwriters shall have received from Xxxxxx & Xxxxxx L.L.P.,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters as the Underwriters may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for enabling them to pass upon such matters.
(h) At the time of the execution of this Agreement, the Underwriters
shall have received from each of Ernst & Young, LLP and Xxxxxx Xxxxxxxx,
LLP, addressed to the Underwriters and dated such date, in form and
substance satisfactory to the Underwriters (i) confirming that they are
independent certified public accountants with respect to the Company and
its subsidiaries within the meaning of the Securities Act and the Rules and
Regulations and (ii) stating the conclusions and findings of such firm with
respect to the financial statements and certain financial information
contained or incorporated by reference in the Prospectus.
16
(i) On the Closing Date, the Underwriters shall have received a
letter (the "bring-down letter") from Ernst & Young, LLP addressed to the
Underwriters and dated the Closing Date confirming, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus as of a date not more than three
business days prior to the date of the bring-down letter), the conclusions
and findings of such firm with respect to the financial information and
other matters covered by its letter delivered to the Underwriters
concurrently with the execution of this Agreement.
(j) The Company shall have furnished to the Underwriters a
certificate, dated the Closing Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that
(i) such officers have carefully examined the Registration Statement and
the Prospectus and, in their opinion, the Registration Statement as of its
effective date and the Prospectus, as of each such effective date and as of
its date, did not include any untrue statement of a material fact and did
not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (in the case of the
Prospectus, in light of the circumstances in which such statements were
made), (ii) since the effective date of the Registration Statement no event
has occurred which should have been set forth in a supplement or amendment
to the Registration Statement or the Prospectus, (iii) to their knowledge
after reasonable investigation, as of the Closing Date, the representations
and warranties of the Company in this Agreement are true and correct and
the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the
Closing Date, and (iv) subsequent to the date of the most recent financial
statements included or incorporated by reference in the Prospectus, there
has been no change in the financial position or results of operation of the
Company and its subsidiaries, or any change, or any development including a
prospective change, in or affecting the condition (financial or otherwise),
results of operations, business or prospects of the Company and its
subsidiaries that would have a Material Adverse Effect, except as set forth
in the Prospectus.
(k) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus or (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the business, general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus, the effect of which,
in any such case described in clause (i) or (ii), is, in the judgment of
the Underwriters, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Stock on the terms
and in the manner contemplated in the Prospectus.
17
(l) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or
sale of the Stock; and no injunction, restraining order or order of any
other nature by any federal or state court of competent jurisdiction shall
have been issued as of the Closing Date which would prevent the issuance or
sale of the Stock.
(m) Subsequent to the execution and delivery of this Agreement (i) no
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) of
the Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its
rating of any of the Company's debt securities.
(n) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or in
the Nasdaq National Market, or trading in any securities of the Company on
any exchange or in the over-the-counter market, shall have been suspended
or minimum prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or New York State authorities, (iii)
the United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Underwriters,
impracticable or inadvisable to proceed with the sale or delivery of the
Stock on the terms and in the manner contemplated in the Prospectus.
(o) The New York Stock Exchange, Inc. shall have approved the Stock
for listing, subject only to official notice of issuance.
(p) RBC Dominion shall have received the written agreements,
substantially in the form of Exhibit I hereto, of the officers, director
and shareholders of the Company listed in Schedule C to this Agreement.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. Indemnification and Contribution. (a) The Company and each Subsidiary,
jointly and severally, shall indemnify and hold harmless each Underwriter, its
officers, employees, representatives and agents and each person, if any, who
controls any Underwriter within the meaning of the Securities Act (collectively
the "Underwriter Indemnified Parties" and, each an "Underwriter Indemnified
Party") against any loss, claim, damage or liability, joint or
18
several, or any action in respect thereof, to which that Underwriter Indemnified
Party may become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state in the Registration
Statement or the Prospectus or in any amendment or supplement thereto a material
fact required to be stated therein or necessary to make the statements therein
not misleading (in the case of the Prospectus, in light of the circumstances in
which such statements were made) and shall reimburse each Underwriter
Indemnified Party promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter Indemnified Party in connection with
investigating or preparing to defend or defending against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Company and
the Subsidiaries shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon (i)
an untrue statement or alleged untrue statement in or omission or alleged
omission from the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company through the Underwriters by or on behalf of any
Underwriter specifically for use therein, which information the parties hereto
agree is limited to the Underwriter's Information (as defined in Section 15).
(b) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company its officers, employees, representatives and agents, each
of its directors and each person, if any, who controls the Company within the
meaning of the Securities Act (collectively the "Company Indemnified Parties"
and each a "Company Indemnified Party") against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company Indemnified Parties may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company through the Underwriters by or on behalf of that Underwriter
specifically for use therein, and shall reimburse the Company Indemnified
Parties for any legal or other expenses reasonably incurred by such parties in
connection with investigating or preparing to defend or defending against or
appearing as third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided that the
parties hereto hereby agree that such written information provided by the
Underwriters consists solely of the Underwriter's Information. This indemnity
agreement is not exclusive and will be in addition to any liability which the
Underwriters might otherwise have and shall not limit any rights or remedies
which may otherwise be available at law or in equity to the Company Indemnified
Parties.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability
19
which it may have under this Section 7 except to the extent it has been
materially prejudiced by such failure; and, provided, further, that the failure
to notify the indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under this Section 7. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by RBC Dominion, if the
indemnified parties under this Section 7 consist of any Underwriter Indemnified
Party, or by the Company if the indemnified parties under this Section 7 consist
of any Company Indemnified Parties. Each indemnified party, as a condition of
the indemnity agreements contained in Section 7(a) and 7(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. Subject to the provisions of Section 7(e) below, no
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by this Section 7 effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the request for reimbursement, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
20
(e) If the indemnification provided for in this Section 7 is unavailable
or insufficient to hold harmless an indemnified party under Section 7(a) or
7(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company and the Subsidiaries on the one hand and the
Underwriters on the other from the offering of the Stock or if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Subsidiaries on the one hand and the Underwriters on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Subsidiaries on the one hand and the Underwriters on the other with respect to
such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Stock purchased under this Agreement (before
deducting expenses) received by the Company and the Subsidiaries bear to the
total underwriting discounts and commissions received by the Underwriters with
respect to the Stock purchased under this Agreement, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the
Subsidiaries on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission; provided that the parties
hereto agree that the written information furnished to the Company through the
Underwriters by or on behalf of the Underwriters for use in the Registration
Statement or the Prospectus consists solely of the Underwriter's Information.
The Company, the Subsidiaries and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 7(e) were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
7(e) shall be deemed to include, for purposes of this Section 7(e), 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 7(e), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Stock
underwritten by it and distributed to the public were offered to the public less
the amount of any damages which such Underwriter has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The Underwriters' obligations to contribute as provided in this Section
7(e) are several in proportion to their respective underwriting obligations and
not joint.
8. Termination. The obligations of the Underwriters hereunder may be
terminated by RBC Dominion, in its absolute discretion by notice given to and
received by the Company prior to delivery of and payment for the Stock if, prior
to that time, any of the events described in
21
Sections 6(k), 6(m) or 6(n) have occurred or if the Underwriters shall decline
to purchase the Stock for any reason permitted under this Agreement.
9. Reimbursement of Underwriters' Expenses. If (a) this Agreement shall
have been terminated pursuant to Section 8 or (b) the Company shall fail to
tender the Stock for delivery to the Underwriters for any reason permitted under
this Agreement, the Company shall reimburse the Underwriters for the fees and
expenses of their counsel and for such other out-of-pocket expenses as shall
have been reasonably incurred by them in connection with this Agreement and the
proposed purchase of the Stock, and upon demand the Company shall pay the full
amount thereof to the RBC Dominion. If this Agreement is terminated pursuant to
Section 10 by reason of the default of one or more Underwriters, the Company
shall not be obligated to reimburse any defaulting Underwriter on account of
those expenses.
10. Successors; Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the several Underwriters, the
Company and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the Underwriter Indemnified Parties, and the
indemnities of the several Underwriters shall also be for the benefit of the
Company Indemnified Parties.
11. Survival of Indemnities, Representations, Warranties, Etc. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by them respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, the Company or any person controlling any of them and
shall survive delivery of and payment for the Stock.
12. Notices. All statements, requests, notices and agreements hereunder
shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to RBC Dominion Securities Corporation Attention:
Xxxxx Xxxxxxxx (000) 000-0000 (Fax: (000) 000-0000);
(b) if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to Xxxxxx Xxxxxxx Halter, Inc. Attention: Xxxxxxx
O'Xxxxxx Xxxxxxxx (Fax: (000) 000-0000);
13. DEFINITION OF CERTAIN TERMS. For purposes of this Agreement, (a)
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the
Rules and Regulations.
22
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
15. Underwriters' Information. The parties hereto acknowledge and agree
that, for all purposes of this Agreement, the Underwriters' Information consists
solely of the following information in the Prospectus: (i) the last paragraph on
the front cover page concerning the terms of the offering by the Underwriters;
and (ii) the statements concerning the Underwriters contained in paragraphs 1, 2
and 6 under the heading "Underwriting."
16. Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
17. General. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. In this Agreement, the masculine, feminine and neuter
genders and the singular and the plural include one another. The section
headings in this Agreement are for the convenience of the parties only and will
not affect the construction or interpretation of this Agreement. This Agreement
may be amended or modified, and the observance of any term of this Agreement may
be waived, only by a writing signed by the Company.
18. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
23
If the foregoing is in accordance with your understanding of the agreement
between the Company and the several Underwriters, kindly indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
XXXXXX XXXXXXX HALTER, INC.
By: /s/ Xxxx X. Xxxxxx
_________________________________
Name: Xxxx X. Xxxxxx
Title: President and Chief
Operating Officer
Accepted as of
the date first above written:
RBC DOMINION SECURITIES CORPORATION
By: /s/ Xxxx X. Xxxxxxx, Xx.
____________________________________
Name: Xxxx X. Xxxxxxx, Xx.
Title: Managing Director
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxx X. Courage
____________________________________
Name: Xxx X. Courage
Title: Senior Managing Director
24
SCHEDULE A
Number of Firm
Shares to be
Name Purchased
----- --------------
RBC Dominion Securities Corporation.................. 4,375,000
---------
Xxxxxxxxx & Company, Inc............................. 4,375,000
---------
Total................................................ 8,750,000
=========
SCHEDULE B
List of Directors and Shareholders Subject to Section 4(o)
-----------------------------------------------------------
Xxxx X. Xxxxx
T. Xxx Xxxxxxx
Xxxxx X. Xxxxxx, XX
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxx
Xxxxxxx X. Xxxxx
SCHEDULE C
List of Officers, Director and Shareholders Subject to Section 6(p)
-------------------------------------------------------------------
X.X. Xxxxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxx
Xxxxxxx O'Xxxxxx Xxxxxxxx
Exhibit I
[Form of Lock-Up Agreement]
June ___, 2000
RBC Dominion Securities Corporation
Xxxxxxxxx & Company, Inc.
c/o RBC Dominion Securities Corporation
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxxx Xxxxxxx Halter, Inc. ! Shares of Common Stock
Dear Sirs:
In order to induce RBC Dominion Securities Corporation ("RBC Dominion") and
Xxxxxxxxx & Company, Inc. (together with RBC Dominion, the "Underwriters"), to
enter in to a certain underwriting agreement with Xxxxxx Xxxxxxx Halter, Inc., a
Mississippi corporation (the "Company"), with respect to the public offering of
shares of the Company's Common Stock, par value $.01 per share ("Common Stock"),
the undersigned hereby agrees that for a period of 90 days following the date of
the final prospectus supplement filed by the Company with the U. S. Securities
and Exchange Commission in connection with such public offering, the undersigned
will not, without the prior written consent of RBC Dominion, directly or
indirectly, offer, sell, assign, transfer, pledge, contract to sell, or
otherwise dispose of, any shares of Common Stock (including, without limitation,
Common Stock which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations promulgated under the U. S. Securities
Act of 1933, as the same may be amended or supplemented from time to time (such
shares, the "Beneficially Owned Shares")), or securities convertible into or
exercisable or exchangeable for Common Stock or enter into any derivative
transaction with similar effect as a sale of such Common Stock.
Anything contained herein to the contrary notwithstanding, any person to
whom shares of Common Stock or Beneficially Owned Shares are transferred from
the undersigned shall be bound by the terms of this Agreement.
[Signatory]
By:__________________________________
Name:
Title:
