EXHIBIT 1.1
7,000,000 Shares of Common Stock
QUICKSILVER RESOURCES INC.
UNDERWRITING AGREEMENT
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_________ __, 1999
BEAR, XXXXXXX & CO. INC.
Xxxx Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxxx & Company, Inc.
as Representatives of the several Underwriters
Named in Schedule I hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Dear Sirs:
Quicksilver Resources Inc., a corporation organized and existing under the
laws of Delaware (the "Company"), proposes, subject to the terms and conditions
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stated herein, to issue and sell to the several underwriters named in Schedule I
hereto (the "Underwriters"), acting severally and not jointly, an aggregate of
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7,000,000 shares (the "Firm Shares") of the Company's common stock, par value
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$.01 per share (the "Common Stock"). The Company also proposes to issue and
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sell to the several Underwriters, for the sole purpose of covering over-
allotments in connection with the sale of the Firm Shares, and at the option of
the Underwriters, up to an additional 1,050,000 shares (the "Additional Shares")
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of Common Stock. The Firm Shares and the Additional Shares are referred to
herein collectively as the "Shares." The Shares are more fully described in the
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Registration Statement referred to below.
1. Representations and Warranties of the Company. The Company
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represents and warrants to, and agrees with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, and may have filed an amendment or
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amendments thereto, on Form S-1 (Registration No. 333-_______), and related
preliminary prospectuses, as amended, for the registration under the Securities
Act of 1933, as amended (the "Securities Act"), of 8,050,000 shares (including
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the Additional Shares) of Common Stock, which registration statement, as so
amended, has been declared effective by the Commission on the date hereof and
copies of which have heretofore been delivered to the Underwriters. The
registration statement, as amended at the time it became effective, including
the exhibits and information (if any) deemed to be a part of the registration
statement at the time of effectiveness pursuant to paragraph (b) of Rule 430A or
Rule
434 of the rules and regulations of the Commission under the Securities Act
(the "Securities Act Regulations"), and any post-effective amendments thereto
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under Rule 462(d) through the Closing Date (as defined below) is hereinafter
called the "Registration Statement." If the Company has filed or is required
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pursuant to the terms hereof to file a registration statement pursuant to Rule
462(b) under the Securities Act Regulations registering additional shares of
Common Stock (a "Rule 462(b) Registration Statement"), then, and unless
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otherwise specified, any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462(b) Registration Statement. Other than
a Rule 462(b) Registration Statement, if any, which became effective upon
filing, no other document with respect to the Registration Statement has
heretofore been filed with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the Securities Act Regulations, each in the form
heretofore delivered to the Underwriters). No stop order suspending the
effectiveness of the Registration Statement (including any Rule 462(b)
Registration Statement) has been issued and no proceeding for that purpose has
been initiated or, to the Company's knowledge, threatened by the Commission.
The prospectus relating to the Shares, in the form in which it is to be filed
with the Commission pursuant to Rule 424(b) of the Securities Act Regulations,
is hereinafter referred to as the "Prospectus," except that, subject to Sections
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4(a) and 4(b) below, if any revised prospectus or prospectus supplement shall be
provided to the Underwriters by the Company for use in connection with the
offering and sale of the Shares (the "Offering") which differs from the
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Prospectus (whether or not such revised prospectus or prospectus supplement is
required to be filed by the Company pursuant to Rule 424(b) of the Securities
Act Regulations), the term "Prospectus" shall refer to such revised prospectus
or prospectus supplement, as the case may be, from and after the time it is
first provided to the Underwriters for such use. Any preliminary prospectus or
prospectus subject to completion included in the Registration Statement or filed
with the Commission as described in Rule 430A or Rule 424 of the Securities Act
is hereafter called a "Preliminary Prospectus." All references in this
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Agreement to the Registration Statement, the Rule 462(b) Registration Statement,
a Preliminary Prospectus and the Prospectus, or any amendments or supplements to
any of the foregoing, shall be deemed to include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System ("XXXXX").
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(b) The Registration Statement and the Prospectus, and any amendments
thereof or supplements thereto, at the time the Registration Statement became
effective, at the time any post-effective amendment to the Registration
Statement is filed with the Commission, at the time the Prospectus is first
filed with the Commission, at the time any supplement or amendment to the
Prospectus is filed with the Commission and as of the Closing Date, and
Additional Closing Date, if any (as hereinafter respectively defined), and the
Preliminary Prospectus, and any amendments thereof or supplements thereto, as of
the date thereof, complied and comply in all material respects with the
requirements of the Securities Act and the Securities Act Regulations, and did
not and as of the Closing Date, and Additional Closing Date, if any, 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
not misleading. The Prospectus, as of the date hereof (unless the term
"Prospectus" refers to a prospectus which has been provided to the Underwriters
by the Company for use in connection with the offering of the Shares which
differs from the Prospectus filed with the Commission pursuant to Rule 424(b) of
the Securities Act Regulations, in which case at the time it
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is first provided to the Underwriters for such use) and on the Closing Date, and
Additional Closing Date, if any, does not and will not include any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations and warranties
in this Section (1)(b) shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing
by any Underwriter expressly for use in the Registration Statement or the
Prospectus. Each Preliminary Prospectus and Prospectus filed as part of the
Registration Statement, as part of any amendment thereto or pursuant to Rule 424
under the Securities Act Regulations, if filed by electronic transmission
pursuant to Regulation S-T under the Securities Act, was identical to the copy
thereof delivered to the Underwriters for use in connection with the offer and
sales of the Shares (except as may be permitted by Regulation S-T under the
Securities Act). There are no contracts or other documents required to be
described in the Prospectus or to be filed as exhibits to the Registration
Statement under the Securities Act that have not been described or filed therein
as required, and there are no business relationships or related-party
transactions directly or indirectly involving the Company or any other person
required to be described in the Prospectus that have not been described therein
as required.
(c) Deloitte & Touche LLP, who has certified certain financial
statements of the Company and has delivered its report with respect to the
Company's audited financial statements included in the Registration Statement,
the Prospectus and any Preliminary Prospectus, are independent public
accountants as required by the Securities Act and the Securities Act
Regulations. Xxxxxx & Xxxxxxx, L.L.P., who has certified certain financial
statements of predecessors of the Company, Mercury Exploration, Michigan Gas
Partners Limited Partnership and predecessor company acquisitions and who has
delivered its report with respect to such predecessor companies' audited
financial statements included in the Registration Statement, the Prospectus and
any Preliminary Prospectuses, are independent public accountants as required by
the Securities Act Regulations.
(d) Holditch-Reservoir Technologies Consulting Services ("Holditch"),
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petroleum engineers from whose reserve reports information is set forth in the
Registration Statement, the Prospectus and each Preliminary Prospectus, are
independent petroleum engineers with respect to the Company. The factual
information underlying the estimates of the reserves of the Company which was
provided by the Company to Holditch for purposes of preparing the reserve
information referenced in the Registration Statement, the Prospectus and each
Preliminary Prospectus (the "Reserve Information") including, without
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limitation, production, volumes, sales prices for production, contractual
pricing provisions under gas sales or marketing contracts, hedging arrangements,
incurred costs of operations and development, and working interest and net
revenue information relating to the Company's ownership interests in properties,
was true and correct in all material respects on the date such information was
furnished to Holditch and as of the date hereof; the estimates of future capital
expenditures and other future exploration and development costs supplied to
Holditch were prepared in good faith and with a reasonable basis. The
information provided to Holditch for purposes of preparing the Reserve
Information was prepared in accordance with customary industry practices.
Except as described in the Prospectus, the Company is not aware
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of any facts or circumstances that would result in a material adverse change in
its reserves in the aggregate, or the aggregate present value of estimated
future net revenues or the standardized measure of discounted future net cash
flows therefrom, as described in the Prospectus and reflected in the Reserve
Information. Estimates of the reserves and the present value of the estimated
future net revenues and the discounted future net cash flows derived therefrom
as described in the Prospectus and reflected in the Reserve Information comply
in all material respects to the applicable requirements of Regulation S-X of the
Securities Act Regulations and Industry Guide 2 under the Securities Act.
(e) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has been no material
adverse change or any development involving a prospective material adverse
change in the business, prospects, properties, operations, condition (financial
or otherwise) affairs or management of the Company, whether or not arising from
transactions in the ordinary course of business, and since the date of the
latest balance sheet presented in the Registration Statement and the Prospectus,
the Company has not incurred or undertaken any liabilities or obligations,
direct or contingent, which are material to the Company, except for liabilities
or obligations which are reflected in the Registration Statement and the
Prospectus.
(f) The Company (i) has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, (ii) has
all requisite corporate power and authority, and all necessary consents,
approvals, authorizations, orders, registrations, qualifications, licenses and
permits of and from all public, regulatory or governmental agencies and bodies,
to carry on its business as it is currently being conducted and as described in
the Registration Statement and the Prospectus and to own, lease and operate its
properties, (iii) other than MGV Energy, Inc. (the "Subsidiary") has no
subsidiaries and (iv) is duly qualified and in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification except, with respect to clauses (i) (as it relates to good
standing) and (iv), where the failure to be in good standing or so qualified
does not and could not reasonably be expected to (x) individually or in the
aggregate, result in a material adverse effect on the business, prospects,
properties, operations, condition (financial or otherwise), affairs or
management of the Company, (y) interfere with or adversely affect the issuance
or marketability of the Shares pursuant hereto or (z) in any manner draw into
question the validity of this Agreement or the transactions described in the
Prospectus under the caption "Use of Proceeds" (any of the events set forth in
clauses (x), (y) or (z), being referred to as a "Material Adverse Effect").
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(g) The Subsidiary (i) has been duly organized and is validly existing as
a corporation in good standing under the laws of the Province of Alberta,
Canada, (ii) has all requisite corporate power and authority, and all necessary
consents, approvals, authorizations, orders, registrations, qualifications,
licenses and permits of and from all public, regulatory or governmental agencies
and bodies, to carry on its business as it is currently being conducted and as
described in the Registration Statement and the Prospectus and to own, lease and
operate its properties, (iii) the Subsidiary has no subsidiaries and (iv) is
duly qualified and in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property
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requires such qualification except, with respect to clauses (i) (as it relates
to good standing) and (iv), where the failure to be in good standing or so
qualified does not and could not reasonably be expected to (x) individually or
in the aggregate, result in a material adverse effect on the business,
prospects, properties, operations, condition (financial or otherwise), affairs
or management of the Subsidiary, (y) interfere with or adversely affect the
issuance or marketability of the Shares pursuant hereto or (z) in any manner
draw into question the validity of this Agreement or the transactions described
in the Prospectus under the caption "Use of Proceeds" (any of the events set
forth in clauses (x), (y) or (z), being referred to as a "Material Adverse
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Effect").
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(h) This Agreement and the transactions contemplated hereby have been
duly and validly authorized by the Company. This Agreement has been duly and
validly executed and delivered by the Company, and is the legal, valid, binding
agreement of the Company.
(i) The execution, delivery, and performance of this Agreement, the
issuance, offering and sale of the Shares, and the consummation of the
transactions contemplated hereby and in the Prospectus do not and will not (i)
violate, conflict with or constitute a breach of any of the terms and provisions
of, or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) or require consent under, or result in the
creation or imposition of any lien, charge or encumbrance upon any properties or
assets of the Company, or result in an acceleration of any indebtedness of the
Company pursuant to (A) the Restated Certificate of Incorporation or By-Laws of
the Company, (B) any bond, debenture, note, indenture, mortgage, deed of trust,
contract or other agreement or instrument to which the Company or any subsidiary
is a party or by which the Company or any of its subsidiaries or their
respective properties or assets are or may be bound, (C) any statute, rule or
regulation applicable to the Company or any of its subsidiaries or any of their
respective properties or assets (D) any judgment, order or decree of any court
or governmental agency or authority having jurisdiction over the Company or any
of its subsidiaries or any of their respective properties or assets. No
consent, approval, authorization, order, registration, filing, qualification,
license or permit of or with (i) any court or any governmental agency or
authority having jurisdiction over the Company or any of its subsidiaries or any
of their respective properties or assets or (ii) any other person is required
for (A) the execution, delivery and performance by the Company of this
Agreement, (B) the issuance, sale and delivery of the Shares to be issued, sold
and delivered by the Company hereunder and the consummation of the transactions
contemplated hereby, except such as have been obtained under the Securities Act
and such consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the Shares
by the Underwriters.
(j) All of the outstanding shares of Common Stock under this Agreement,
are duly authorized and validly issued, and are fully paid and nonassessable and
were not issued and are not now in violation of or subject to any preemptive or
similar rights. The Shares being sold by the Company under this Agreement are
duly authorized, and, when issued, delivered and paid for in accordance with
this Agreement, will be validly issued, and fully paid and nonassessable, and
will not have been issued in violation of or be subject to any preemptive or
similar rights. As of June 30,
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1999, after giving effect to the issuance and sale of the Shares pursuant hereto
and the application of the net proceeds from the sale thereof, the Company had
the pro forma capitalization as set forth in the Prospectus under the caption
"Capitalization." The capital stock of the Company conforms to the description
thereof contained in the Prospectus, or if the Prospectus is not in existence,
the most recent Preliminary Prospectus.
(k) Except as disclosed in the Prospectus, there are not currently, and
will not be as a result of the Offering, any outstanding subscriptions, rights,
warrants, calls, commitments of sale or options to acquire or instruments
convertible into or exchangeable for, any capital stock or other equity interest
of the Company or any of its subsidiaries (other than options issued pursuant to
the Company's stock option plans).
(l) There is (i) no action, suit or proceeding before or by any court,
arbitrator or governmental agency, body or official, domestic or foreign, now
pending or, to the best knowledge of the Company, threatened or contemplated to
which the Company is a party or to which the business or property of the Company
is subject, (ii) no statute, rule, regulation or order that has been enacted,
adopted or issued by any governmental agency or that has been proposed by any
governmental body and (iii) no injunction, restraining order or order of any
nature by a federal or state court or foreign court of competent jurisdiction to
which the Company or any of its subsidiaries is or may be subject or to which
the business, assets, or property of the Company or any of its subsidiaries are
or may be subject, that, in the case of clauses (i), (ii) and (iii) above, is
required to be disclosed in the Registration Statement and the Prospectus and
which could, individually or in the aggregate, result in a Material Adverse
Effect.
(m) The Company has not directly or indirectly (a) taken (other than
through the actions, if any, of the Underwriters) any action designed to, or
that might reasonably be expected to, cause or result in or which constitutes or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares or (b) since the filing of the Preliminary Prospectus
(i) sold, bid for, purchased or paid any person any compensation for soliciting
purchases of, shares of Common Stock or (ii) paid or agreed to pay to any person
any compensation for soliciting another to purchase any other securities of the
Company.
(n) The financial statements, together with the related notes, included
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) present fairly in all material respects the financial
position, results of operations, cash flows, and changes in stockholders' equity
of the Company and its predecessors as of and at the dates indicated and for the
periods specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved, and comply with Regulation S-X of the
Securities Act Regulations. The financial data set forth in the Prospectus
under the captions "Prospectus Summary--Summary Consolidated Financial Data,"
"Selected Consolidated Financial Data" and "Capitalization" fairly present the
information set forth therein on a basis consistent with that of the audited
financial statements contained in the Prospectus.
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(o) There are no holders of securities of the Company who, by reason of
the execution by the Company of this Agreement or the consummation by the
Company of the transactions contemplated hereby, have the right to request or
demand that the Company register under the Securities Act or analogous foreign
laws and regulations securities held by them, other than such that have been
duly exercised or waived.
(p) The Company is not, and upon consummation of the transactions
contemplated hereby will not be, (i) an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), or be subject to
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registration under the Investment Company Act, or (ii) a "holding company" or a
"subsidiary company" or an "affiliate" of a holding company within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
(q) The Common Stock is registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and is listed
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for quotation on the American Stock Exchange, and the Company has taken no
action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting the Common
Stock from the American Stock Exchange, nor has the Company received any
notification that the Commission or the American Stock Exchange is contemplating
terminating such registration or listing.
(r) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby, including, without limitation,
the corporate power and authority to issue, sell and deliver the Shares as
provided herein and the corporate power to effect the use of proceeds from the
Offering as described in the Prospectus.
(s) The Company is not (i) in violation of its Restated Certificate of
Incorporation or By-Laws, (ii) in breach or default (nor does any condition
exist that, with notice, the passage of time or both, would constitute a breach
or default) in the performance of any obligation, agreement or condition
contained in any bond, debenture, note, indenture, mortgage, deed of trust or
other agreement or instrument to which it is a party or by which it is bound or
to which any of its properties is subject, or (iii) in violation of any local,
state or federal law, statute, ordinance, rule, regulation, requirement,
judgment or court decree applicable to the Company or any of its subsidiaries or
any of their respective assets or properties (whether owned or leased).
(t) No action has been taken and no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental agency that prevents the
issuance of the Shares or prevents or suspends the use of the Prospectus; no
injunction, restraining order or order of any kind by a federal or state court
of competent jurisdiction has been issued that prevents the issuance of the
Shares, prevents or suspends the sale of the Shares in any jurisdiction or that
could adversely affect the consummation of the transactions contemplated by this
Agreement or the Prospectus; and every request of any securities authority or
agency of any jurisdiction for additional information has been
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complied with in all material respects.
(u) There is (i) no significant unfair labor practice complaint pending
against the Company nor, to the best knowledge of the Company, threatened
against it, before the National Labor Relations Board, any state or local labor
relations board or any foreign labor relations board, and no significant
grievance or significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company nor, to the
best knowledge of the Company, threatened against it, (ii) no strike, labor
dispute, slowdown or stoppage pending against the Company nor, to the best
knowledge of the Company, threatened against it and (iii) to the best knowledge
of the Company, no union representation question existing with respect to the
employees of the Company. To the best knowledge of the Company, no collective
bargaining organizing activities are taking place with respect to the Company.
The Company has not violated (A) any federal, state or local law or foreign law
relating to discrimination in hiring, promotion or pay of employees, (B) any
applicable wage or hour laws or (C) any provision of the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA").
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(v) The Company is not in violation of any federal or state law or
regulation relating to occupational safety and health or to the storage,
handling or transportation of hazardous or toxic materials ("Environmental
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Laws") and the Company has received all permits, licenses and other approvals
required of them under applicable federal and state occupational safety and
health and environmental laws and regulations to conduct its business, and the
Company is in compliance with all terms and conditions of any such permit,
license or approval, except any such violation of law or regulation, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals which would not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect. There has been no storage, disposal, generation,
transportation, handling or treatment of hazardous substances or solid wastes by
the Company (or to the knowledge of the Company any of its predecessors in
interest) at, upon or from any of the property now or previously owned or leased
by the Company in violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit which would require remedial action by the
Company under any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit except for those which have already been remedied, have been
assumed by a third party, or which would not result in, or which would not be
reasonably likely to result, individually or in the aggregate, in a Material
Adverse Effect. There has been no spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any solid wastes or hazardous
substances due to or caused by the Company, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release which has
already been remedied, has been assumed by a third party, or which would not
result, or which would not be reasonably expected to result, individually or in
the aggregate, in a Material Adverse Effect. The terms "hazardous substances"
and "solid wastes" shall have the meanings set forth in any currently applicable
local, state, and federal laws or regulations with respect to environmental
protection.
(w) The Company has (i) good and marketable title in fee simple to all
items of real
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property and marketable title to all personal property owned by it, free and
clear of all security interests, liens, charges, encumbrances, equities,
restrictions, claims and other defects, except such as are described in the
Prospectus or as would not have a Material Adverse Effect, and (ii) peaceful and
undisturbed possession of its properties under all material leases to which it
is a party as lessee. The Company has good and defensible title (i) to its oil
and gas properties, including its xxxxx and its leasehold interest therein, and
(ii) to its net revenue interests therein in accordance with such leases, free
and clear of all security interests, liens, charges, encumbrances, equities,
restrictions, claims and other defects, except such as are described in the
Prospectus or as would not have a Material Adverse Effect. The working interests
in oil and gas leases held by the Company reflect in all material respects the
right of the Company to explore or receive production from such underlying
leases, and the care taken by the Company with respect to acquiring or otherwise
procuring such leases was generally consistent with standard industry practices
for acquiring or procuring such leases. All material leases to which the Company
is a party are valid and binding, and no default by the Company has occurred and
is continuing thereunder and, to the best knowledge of the Company, no material
defaults by the landlord are existing under any such lease that could result in
a Material Adverse Effect.
(x) Except as described in the Prospectus (i) all royalties, rentals,
deposits and other amounts due on the oil and gas properties of the Company have
been properly and timely paid, and no proceeds from the sale or production
attributable to the oil and gas properties of the Company are currently being
held in suspense by any purchaser thereof, and (ii) there are no claims under
take-or-pay contracts pursuant to which natural gas purchasers have any make-up
rights affecting the interests of the Company in its oil and gas properties.
(y) As of the date hereof, the aggregate undiscounted monetary liability
of the Company for oil or natural gas taken or received under any operating or
other agreement relating to its oil and gas properties that permits any person
to receive any portion of the interest of the Company in oil and natural gas or
to receive cash or other payments to balance any disproportionate allocation of
oil or natural gas could not have a Material Adverse Effect.
(z) The Company has (i) all licenses, certificates, permits,
authorizations, approvals, franchises and other rights from, and has made all
declarations and filings with, all federal, state and local authorities, all
self-regulatory authorities and all courts and other tribunals (each an
"Authorization") necessary to engage in the business conducted by it in the
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manner described in the Prospectus, except as described in the Prospectus or
where failure to hold such Authorizations would not, individually or in the
aggregate, have a Material Adverse Effect and (ii) no reason to believe that any
governmental body or agency is considering limiting, suspending or revoking any
such Authorization. Except where the failure to be in full force and effect
would not have a Material Adverse Effect, all such Authorizations are valid and
in full force and effect, and the Company is in compliance in all material
respects with the terms and conditions of all such Authorizations and with the
rules and regulations of the regulatory authorities having jurisdiction with
respect thereto.
(aa) Neither the Company nor, to the best knowledge of the Company, any
of its officers, directors, partners, employees, agents or affiliates or any
other person acting on behalf of the
9
Company, has, directly or indirectly, given or agreed to give any money, gift or
similar benefit (other than legal price concessions to customers in the ordinary
course of business) to any customer, supplier, employee or agent of a customer
or supplier, official or employee of any governmental agency (domestic or
foreign), instrumentality of any government (domestic or foreign) or any
political party or candidate for office (domestic or foreign) or other person
who was, is or may be in a position to help or hinder the business of the
Company (or assist the Company in connection with any actual or proposed
transaction), which (i) might subject the Company, or any other individual or
entity, to any damage or penalty in any civil, criminal or governmental
litigation or proceeding (domestic or foreign), (ii) if not given in the past,
might have had a Material Adverse Effect or (iii) if not continued in the
future, might have a Material Adverse Effect.
(bb) All material tax returns required to be filed by the Company in all
jurisdictions have been so filed. All taxes, including withholding taxes,
penalties and interest, assessments, fees and other charges due or claimed to be
due from such entities or that are due and payable have been paid, other than
those being contested in good faith through appropriate proceedings diligently
pursued and for which adequate reserves have been provided or those currently
payable without penalty or interest. To the knowledge of the Company, there are
no material proposed additional tax assessments against the Company or the
assets or property of the Company. The Company has made adequate (in the
opinion of the Company) charges, accruals and reserves in the applicable
financial statements included in the Prospectus in respect of all federal, state
and foreign income and franchise taxes for all periods presented therein as to
which the tax liability of the Company has not been finally determined.
(cc) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance 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 authorization and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences thereto.
(dd) The Company maintains insurance covering its properties,
operations, personnel and businesses with institutions it believes to be
financially responsible. Such insurance insures against such losses and risks as
are adequate in accordance with customary industry practice to protect the
Company and its business. The Company has not received notice from any insurer
or agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance. All such
insurance is outstanding and duly in force on the date hereof, subject only to
changes made in the ordinary course of business, consistent with past practice,
which do not, either individually or in the aggregate, materially alter the
coverage thereunder or the risks covered thereby. The Company has no reason to
believe that it will not be able (a) to renew its existing insurance coverage as
and when such policies expire or (b) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business as now
conducted or as presently contemplated and at a cost that would not result in a
Material Adverse Effect.
10
(ee) The Company and any "employee benefit plan" (as defined under ERISA)
established or maintained by the Company or its "ERISA Affiliates" (as defined
below) are in compliance in all material respects with ERISA. "ERISA Affiliate"
---------------
means, with respect to the Company, any member of any group of organizations
described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of
1986, as amended, and the regulations and published interpretations thereunder
(the "Code") of which the Company is a member. No "reportable event" (as
----
defined under ERISA) has occurred or is reasonably expected to occur with
respect to any "employee benefit plan" established or maintained by the Company
or any of its ERISA Affiliates. No "employee benefit plan" established or
maintained by the Company or any of its ERISA Affiliates, if such "employee
benefit plan" were terminated, would have any "amount of unfunded benefit
liabilities" (as defined under ERISA). Neither the Company nor any of its ERISA
Affiliates has incurred or reasonably expects to incur any liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from, any
"employee benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of the Code.
Each "employee benefit plan" established or maintained by the Company or any of
its ERISA Affiliates that is intended to be qualified under Section 401(a) of
the Code is so qualified and nothing has occurred, whether by action or failure
to act, which would cause the loss of such qualification.
(ff) Subsequent to the respective dates as of which information is given
in the Prospectus and up to the Closing Date, except as set forth in the
Prospectus, (i) the Company has not incurred any liabilities or obligations,
direct or contingent, that are or will be material, either individually or in
the aggregate, to the Company and its subsidiaries taken as a whole, nor entered
into any transaction not in the ordinary course of business, (ii) there has not
been, either individually or in the aggregate, any change or development that
could reasonably be expected to result in a Material Adverse Effect; (iii) the
Company has not purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any kind on its capital
stock; and (iv) there has been no [material] change in the capital stock, short-
term debt or long-term debt of the Company, except in each case as described in
the Prospectus, or if the Prospectus is not in existence the most recent
Preliminary Prospectus.
(gg) Except pursuant to this Agreement, there are no contracts, agreements
or understandings between the Company and any other person that would give rise
to a valid claim against the Company or any of the Underwriters for a brokerage
commission, finder's fee or like payment in connection with the issuance,
purchase and sale of the Shares.
(hh) The statements (including the assumptions described therein) included
in the Prospectus (i) are within the coverage of Rule 175(b) under the
Securities Act to the extent such data constitute forward looking statements as
defined in Rule 175(c) and (ii) were made by the Company with a reasonable basis
and reflect the Company's good faith estimate of the matters described therein.
(ii) The Company has implemented Year 2000 compliance programs designed to
ensure that its computer systems and applications will function properly beyond
1999. The Company believes that adequate resources have been allocated for this
purpose and expects the Company's Year 2000 date programs to be completed on a
timely basis, except as could not have a Material Adverse
11
Effect.
(jj) The Company does not have any debt securities or preferred stock
which is rated by any "nationally recognized statistical rating organization" as
defined for purposes of Rule 436(g) under the Securities Act.
(kk) The Company has the power to submit, and pursuant to this Agreement
has legally, validly, effectively and irrevocably submitted, to the jurisdiction
of any federal or state court in the State of New York, County of New York, and
has the power to designate, appoint and empower and pursuant to this Agreement
has legally, validly, effectively and irrevocably designated, appointed and
empowered an agent for service of process in any suit or proceeding based on or
arising under this Agreement in any federal or state court in the State of New
York, County of New York, as provided in Section 13 hereof.
(ll) Each certificate signed by any officer of the Company and delivered
to the Underwriters or counsel for the Underwriters pursuant to this Agreement
shall be deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
The Company acknowledges that each of the Underwriters and, for purposes of
the opinions to be delivered to the Underwriters pursuant to Sections 6(b) and
6(c) hereof, counsel to the Company and counsel to the Underwriters, will rely
upon the accuracy and truth of the foregoing representations and hereby consents
to such reliance.
2. Purchase, Sale and Delivery of the Shares.
-----------------------------------------
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, (i) the Company agrees to issue and sell [7,000,000] of the Firm Shares
to the Underwriters and the Underwriters, severally and not jointly, agree to
purchase from the Company, at a purchase price per share of $_______, the number
of Firm Shares set forth opposite the respective names of the Underwriters in
Schedule I hereto plus any additional number of Shares which such Underwriter
may become obligated to purchase pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of certificates for,
the Shares shall be made at the office of Jenkens & Xxxxxxxxx, a Professional
Corporation, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, 00000, or at such
other place as shall be agreed upon by you and the Company, at 10:00 A.M. on the
third or fourth business day (as permitted by Rule 15c6-1 under the Exchange
Act) (unless postponed in accordance with the provisions of Section 10 hereof)
following the date of the effectiveness of the Registration Statement (or, if
the Company has elected to rely upon Rule 430A of the Securities Act
Regulations, the third or fourth business day (as permitted by Rule 15c6-1 under
the Exchange Act) after the determination of the public offering price of the
Shares), or such other time not later than ten business days after such date as
shall be agreed upon by you and the Company (such time and date of payment and
delivery being herein called the "Closing Date"). Payment shall
------------
12
be made to the Company by wire transfer in same day funds, against delivery to
you for the respective accounts of the Underwriters of certificates for the
Shares to be purchased by them. Certificates for the Shares shall be registered
in such name or names and in such authorized denominations as you may request in
writing at least two full business days prior to the Closing Date. The Company
will permit you to examine and package such certificates for delivery at least
one full business day prior to the Closing Date.
(c) In addition, the Company hereby grants to the Underwriters the option
to purchase up to 1,050,000 Additional Shares at the same purchase price per
share to be paid by the Underwriters to the Company for the Firm Shares as set
forth in Section 2(a) hereof, for the sole purpose of covering over-allotments,
if any, in the sale of Firm Shares by the Underwriters. This option may be
exercised at any time, in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by written notice to the Company from
Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") on behalf of the Underwriters. Such
------------
notice shall set forth the aggregate number of Additional Shares as to which the
option is being exercised and the date and time, as reasonably determined by
Bear Xxxxxxx on behalf of the Underwriters, when the Additional Shares are to be
delivered (such date and time being herein sometimes referred to as the
"Additional Closing Date"); provided, however, that the Additional Closing Date
------------------------ -------- -------
shall not be earlier than the Closing Date or, if thereafter, earlier than the
second full business day after the date on which the option shall have been
exercised nor later than the eighth full business day after the date on which
the option shall have been exercised (unless such time and date are postponed in
accordance with the provisions of Section 10 hereof). Certificates for the
Additional Shares shall be registered in such name or names and in such
authorized denominations as you may request in writing at least two full
business days prior to the Additional Closing Date. The Company will permit you
to examine and package such certificates for delivery at least one full business
day prior to the Additional Closing Date.
The number of Additional Shares to be sold to each Underwriter shall be the
number which bears the same ratio to the aggregate number of Additional Shares
being purchased as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 11 hereof) bears to 7,000,000 subject, however, to such adjustments to
eliminate any fractional shares as Bear Xxxxxxx on behalf of the Underwriters in
its sole discretion shall make.
Payment for the Additional Shares shall be made by wire transfer in same
day funds at the offices of Jenkens & Xxxxxxxxx, a Professional Corporation,
0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, 00000, or such other location as
may be agreed upon between you and the Company, upon delivery of the
certificates for the Additional Shares to you for the respective accounts of the
Underwriters.
3. Offering. Upon your authorization of the release of the Firm Shares,
--------
the Underwriters propose to offer the Firm Shares for sale to the public upon
the terms set forth in the Prospectus.
13
4. Covenants of the Company. The Company covenants and agrees with the
------------------------
Underwriters that:
(a) If the Registration Statement has not yet been declared effective on
the date of this Agreement, the Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become effective as
promptly as possible, and if Rule 430A is used or the filing of the Prospectus
is otherwise required under Rule 424(b) or Rule 434, the Company will file the
Prospectus (properly completed if Rule 430A has been used) pursuant to Rule
424(b) or Rule 434 within the prescribed time period and will provide evidence
satisfactory to you of such timely filing. If the Company elects to rely on Rule
434, the Company will prepare and file a term sheet that complies with the
requirements of Rule 434.
The Company will notify you immediately (and, if requested by you, will
confirm such notice in writing) (i) when the Registration Statement and any
amendments thereto become effective, (ii) of any request by the Commission for
any amendment of or supplement to the Registration Statement or the Prospectus
or for any additional information, (iii) of the mailing or the delivery to the
Commission for filing of any amendment of or supplement to the Registration
Statement or the Prospectus, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any post-
effective amendment thereto or of the initiation, or the threatening, of any
proceedings therefor, (v) of the receipt of any comments from the Commission and
(vi) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction or
the initiation or threatening of any proceeding for that purpose. If the
Commission shall propose or enter a stop order at any time, the Company will use
its best efforts to prevent the issuance of any such stop order and, if issued,
to obtain the lifting of such order as soon as possible. The Company will not
file any amendment to the Registration Statement or any amendment of or
supplement to the Prospectus (including the prospectus required to be filed
pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at
the time of the effectiveness of the Registration Statement before or after the
effective date of the Registration Statement to which you shall reasonably
object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required
to be delivered under the Securities Act any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would, in the
judgment of the Underwriters or the Company, include an 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, or if it shall be necessary at any
time to amend or supplement the Prospectus or Registration Statement to comply
with the Securities Act or the Securities Act Regulations, the Company will
notify you promptly and prepare and file with the Commission an appropriate
amendment or supplement (in form and substance satisfactory to you) which will
correct such statement or omission and will use its best efforts to have any
amendment to the Registration Statement declared effective as soon as possible.
14
(c) The Company will promptly deliver to you two signed copies of the
Registration Statement, including exhibits and all amendments thereto, and the
Company will promptly deliver to each of the Underwriters such number of copies
of any preliminary prospectus, the Prospectus, the Registration Statement, and
all amendments of and supplements to such documents, if any, as you may
reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at
or prior to the time of effectiveness of the Registration Statement, to qualify
the Shares for offering and sale under the securities laws relating to the
offering or sale of the Shares of such jurisdictions as you may designate and to
maintain such qualification in effect for so long as required for the
distribution thereof; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation or to execute a general
consent to service of process.
(e) The Company will make generally available (within the meaning of
Section 11(a) of the Securities Act) to its security holders and to you as soon
as practicable, but not later than 45 days after the end of its fiscal quarter
in which the first anniversary date of the effective date of the Registration
Statement occurs, an earnings statement (in form complying with the provisions
of Rule 158 of the Securities Act Regulations) covering a period of at least
twelve consecutive months beginning after the effective date of the Registration
Statement.
(f) During the period of 180 days from the date hereof, the Company will
not, and will not permit any of its affiliates, directly or indirectly, to
issue, sell, offer or agree to sell, grant any option for the sale of, pledge,
make any short sale or maintain any short position, establish or maintain a "put
equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange
Act), enter into any swap, derivative transaction or other arrangement that the
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock (whether any such transaction is to be settled by
delivery of Common Stock, other securities, cash or other consideration) or
otherwise dispose of, any Common Stock (or any securities convertible into,
exercisable for or exchangeable for Common Stock) or any interest therein or
announce any intention to do any of the foregoing without the prior written
consent of Bear Xxxxxxx. The Company will obtain the undertaking of each of its
officers and directors and such of its stockholders as have been heretofore
designated by you and listed on Schedule II attached hereto not to engage in any
of the aforementioned transactions or to announce their intention to do any of
the foregoing on their own behalf, other than the Company's sale of Shares
hereunder and the Company's issuance of Common Stock pursuant to any existing
employee benefit plans or upon the exercise, conversion or exchange of any
currently outstanding stock options or warrants.
(g) During a period of three years from the effective date of the
Registration Statement, the Company will furnish to you copies of (i) all
reports to its stockholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the Commission or any
national securities exchange.
15
(h) The Company will apply its net proceeds from the sale of the Shares
as set forth under the caption "Use of Proceeds" in the Prospectus.
(i) The Company will use its best efforts to cause the Shares to be
listed on the American Stock Exchange.
(j) The Company will report the use of its net proceeds from the Offering
to the extent required pursuant to Rule 463 of the Securities Act Regulations.
5. Payment of Expenses. Whether or not the transactions contemplated in
-------------------
this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in connection with (i)
preparing, printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereof (including all
exhibits thereto), any Preliminary Prospectus, the Prospectus and any amendments
or supplements thereto (including, without limitation, fees and expenses of the
Company's accountants and counsel), the underwriting documents (including this
Agreement) and all other documents related to the public offering of the Shares
(including those supplied to the Underwriters in quantities as herein above
stated), (ii) the issuance, transfer and delivery of the shares to the
underwriters, including any transfer or other taxes payable thereon, (iii) the
qualification of the shares under state or foreign securities or blue sky laws,
including the costs of printing and mailing a preliminary and final "Blue Sky
Survey" and the fees of counsel for the Underwriters and such counsel's
disbursements in relation thereto, (iv) listing the shares on the American Stock
Exchange, (v) filing fees of the Commission and the National Association of
Securities Dealers, Inc. (the "NASD"), (vi) the cost of printing certificates
representing the Shares and (vii) the cost and charges of any transfer agent or
registrar for the common stock.
6. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company herein contained, as of the date hereof and as of the
Closing Date (for purposes of this Section 6 "Closing Date" shall refer to the
Closing Date for the Firm Shares and any Additional Closing Date, if different,
for the Additional Shares), to the absence from any certificates, opinions,
written statements or letters furnished to you or to Jenkens & Xxxxxxxxx
("Underwriters' Counsel") pursuant to this Section 6 of any misstatement or
omission, to the performance by the Company of its obligations hereunder, and to
the following additional conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 p.m., New York time, on the date of this Agreement, or at such later
time and date as shall have been consented to in writing by you; if the Company
shall have elected to rely upon Rule 430A or Rule 434 of the Securities Act
Regulations, the Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 4(a) hereof; and, at or prior to the
closing date no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof
16
shall have been issued and no proceedings therefor shall have been initiated or
threatened by the Commission.
(b) At the Closing Date you shall have received the opinion of Xxxxxx &
Hanger LLP, counsel for the Company, dated the Closing Date addressed to the
Underwriters and in form and substance satisfactory to Underwriters' Counsel, to
the effect that:
(i) The Company and each of its subsidiaries has been duly
organized and is validly existing as a corporation in good standing under the
laws of the state of incorporation. The Company and each of is subsidiaries is
duly qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its properties (owned, leased
or licensed) or the nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good standing
which will not in the aggregate have a Material Adverse Effect. The Company and
each of its subsidiaries has all requisite corporate authority to own, lease and
license their respective properties and conduct its business as now being
conducted and as described in the Registration Statement and the Prospectus.
Except as disclosed in the Prospectus, all of the outstanding shares of capital
stock of the Company's subsidiaries are owned beneficially and of record by the
Company and have been validly authorized and issued and are fully paid and
nonassessable and, except as described in the Prospectus, there are no other
equity securities of any subsidiary or any securities convertible into capital
stock of any subsidiary, or are there any options, warrants, or other rights to
acquire capital stock or other equity securities of any subsidiary of the
Company.
(ii) The Company has an authorized capital stock as set forth in the
Registration Statement and the Prospectus. All of the outstanding shares of
Common Stock are duly and validly authorized and issued, are fully paid and
nonassessable and were not issued in violation of or subject to any preemptive
rights, and no preemptive rights of stockholders exist with respect to any of
the Company's Common Stock. The Shares to be delivered by the Company on the
Closing Date have been duly and validly authorized and, when delivered by the
Company against payment therefor in accordance with this Agreement, will be duly
and validly issued, fully paid and nonassessable and will not have been issued
in violation of or subject to any preemptive or similar rights. The
certificates for the Common Stock are in due and proper form. The Common Stock,
the Firm Shares and the Additional Shares conform to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(iii) The shares of Common Stock currently outstanding are listed,
and the Shares (including the Additional Shares) have been approved for listing,
on the American Stock Exchange, subject only to notice of issuance.
(iv) This Agreement has been duly and validly authorized, executed
and delivered by the Company.
17
(v) There is no litigation or governmental or other action, suit,
proceeding or investigation before any court or before or by any public,
regulatory or governmental agency or body pending or to the best of such
counsel's knowledge, threatened against, or involving the properties or business
of, the Company, which is of a character required to be disclosed in the
Registration Statement and the Prospectus which has not been properly disclosed
therein.
(vi) The execution, delivery, and performance of this Agreement,
the issuance, offering and sale of the Shares and the consummation of the
transactions contemplated hereby by the Company do not and will not violate,
conflict with or constitute a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of time, or both,
would constitute a default), or result in the creation or imposition of any
lien, charge or encumbrance upon any properties or assets of the Company or any
of its subsidiaries or result in any acceleration of any indebtedness of the
Company pursuant to (A) any bond, debenture, note, indenture, mortgage, deed of
trust, contract or other agreement known to such counsel to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective properties or assets are or may be bound (B)
any statute, rule or regulation applicable to the Company or any of its
subsidiaries or any of their respective properties or assets or (C) to the best
knowledge of such counsel, any judgment, order or decree of any court or
governmental agency or authority having jurisdiction over the Company or any of
its subsidiaries or any of their respective properties or assets. No consent,
approval, authorization, order, registration, filing, qualification, license or
permit of or with any court or any governmental agency or authority having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets is required for the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, except for (1) such as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters (as to which such counsel need express no
opinion) and (2) such as have been made or obtained under the Securities Act.
(vii) The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the financial statements
and other financial data included therein, as to which no opinion need be
rendered) comply as to form in all material respects with the requirements of
the Securities Act and the Securities Act Regulations.
(viii) The Registration Statement is effective under the Securities
Act, and, to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof has been issued and no proceedings therefor have been initiated or
threatened by the Commission and all filings required by Rule 424(b) of the
Securities Act Regulations have been made.
(ix) There are no holders of securities of the Company who, by
reason of the execution by the Company of this Agreement or the consummation by
the Company of the transactions contemplated hereby, have the right to request
or demand that the Company register under the Securities Act or analogous
foreign laws and regulations securities held by them, other than those such that
have been duly exercised or waived.
18
(x) The statements in the Prospectus which purport to summarize
the provisions of statutes, regulations, contracts, and other documents, insofar
as such statements constitute a summary of documents referred to therein or
matters of law, are, in all material respects, accurate summaries and fairly and
correctly present the information required to be shown with respect to such
matters and documents.
(xi) Such counsel does not know of any contracts or documents
required to be filed as exhibits to the Registration Statement or described in
the Registration Statement or Prospectus which are not so filed or described as
required.
(xii) The Company has all approvals, licenses and permits required
to conduct its business lawfully, except where the failure to so possess would
not have a Material Adverse Effect.
In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Underwriters at which the contents and the Prospectus and related
matters were discussed and, no facts have come to the attention of such counsel
which would lead such counsel to believe that either the Registration Statement
at the time it became effective (including the information deemed to be part of
the Registration Statement at the time of effectiveness pursuant to Rule 430A(b)
or Rule 434, if applicable), or any amendment thereof made prior to the Closing
Date as of the date of such amendment, contained an 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, or that the
Prospectus as of its date (or any amendment thereof or supplement thereto made
prior to the Closing Date as of the date of such amendment or supplement) and as
of the Closing Date contained or contains an untrue statement of a material fact
or omitted or omits 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 (it being understood that such counsel need
express no belief or opinion with respect to the financial statements and other
financial data included therein).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the federal laws of the United
States and jurisdictions in which they are admitted, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters'
Counsel, familiar with the applicable laws; (B) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the Company
and certificates or other written statements of officers of departments of
various jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company and its subsidiaries, provided that
copies of any such statements or certificates shall be delivered to
Underwriters' Counsel. The opinion of such counsel for the Company shall state
that the opinion of any such other counsel is in form satisfactory to such
counsel and, in their opinion, you and they are justified in relying thereon.
19
(c) All proceedings taken in connection with the sale of the Firm Shares
and the Additional Shares as herein contemplated shall be satisfactory in form
and substance to you and to Underwriters' Counsel, and the Underwriters shall
have received from said Underwriters' Counsel a favorable opinion, dated as of
the Closing Date with respect to the issuance and sale of the Shares, the
Registration Statement and the Prospectus and such other related matters as you
may reasonably require, and the Company shall have furnished to Underwriters'
Counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(d) At the Closing Date you shall have received a certificate of the
President and Chief Executive Officer and the Chief Financial Officer of the
Company, dated the Closing Date to the effect that (i) the condition set forth
in subsection (a) of this Section 6 has been satisfied, (ii) as of the date
hereof and as of the Closing Date the representations and warranties of the
Company set forth in Section 1 hereof are accurate, (iii) as of the Closing Date
the obligations of the Company to be performed hereunder on or prior thereto
have been duly performed and (iv) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Company has not sustained any material loss or interference with its business or
properties from fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any labor dispute or any legal or governmental
proceeding, and there has not been any material adverse change, or any
development involving a material adverse change, in the business, prospects,
properties, operations, condition (financial or otherwise), affairs or
management of the Company, except in each case as described in or contemplated
by the Prospectus.
(e) At the time this Agreement is executed and at the Closing Date, you
shall have received a letter from Deloitte & Touche LLP, independent public
accountants for the Company, dated, respectively, as of the date of this
Agreement and as of the Closing Date addressed to the Underwriters and in form
and substance satisfactory to you, stating that, among other things: (i) they
are independent certified public accountants with respect to the Company within
the meaning of the Securities Act and the Securities Act Regulations and stating
that the information provided in response to Item 10 of the Registration
Statement is correct insofar as it relates to them; (ii) in their opinion, the
financial statements and schedules of the Company included in the Registration
Statement and the Prospectus and covered by their opinion therein comply as to
form in all material respects with the applicable accounting requirements of the
Securities Act and the applicable published rules and regulations of the
Commission thereunder; (iii) on the basis of procedures consisting of a reading
of the latest available unaudited interim financial statements of the Company, a
reading of the minutes of meetings and consents of the stockholders and Board of
Directors of the Company and the committees of such Board of Directors
subsequent to December 31, 1998, inquiries of officers and other employees of
the Company who have responsibility for financial and accounting matters of the
Company with respect to transactions and events subsequent to December 31, 1998,
a review of interim financial information in accordance with the standards
established by the American Institute of Certified Public Accountants in
Statement of Auditing Standards No. 71, Interim Financial Information with
respect to the [nine]-month period ended [September]30, 1999 and other specified
procedures and inquiries to a date not more than five days prior to the date of
such letter, nothing has come to their attention that would cause them to
believe that: (A) the unaudited financial statements
20
and schedules of the Company presented in the Registration Statement and the
Prospectus, including the quarterly information set forth under the caption
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and, if applicable, the
Exchange Act and the applicable published rules and regulations of the
Commission thereunder or that such unaudited consolidated financial statements
are not fairly presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
financial statements included in the Registration Statement and the Prospectus;
(B) with respect to the period subsequent to June 30, 1999, there were, as of
the date of the most recently available monthly consolidated financial
statements of the Company, if any, and as of a specified date not more than five
days prior to the date of such letter, any changes in the capital stock or long-
term indebtedness of the Company or any decrease in the net current assets or
shareholders' equity of the Company, in each case as compared with the amounts
shown in the most recent balance sheet presented in the Registration Statement
and the Prospectus, except for changes or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur or which are
set forth in such letter; (C) that during the period from July 1, 1999 to the
date of the most recent available monthly financial statements of the Company,
if any, and to a specified date not more than five days prior to the date of
such letter, there was any decrease, as compared with the corresponding period
in the prior fiscal year, in total revenues, or total or per share net income,
except for decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur or which are set forth in such letter; (D)
the unaudited pro forma income statements and balance sheets presented in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act and, if applicable, the Exchange Act and the applicable published rules and
regulations of the Commission thereunder, that such unaudited pro forma income
statements and balance sheets are not fairly presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in the
Registration Statement and the Prospectus or that the pro forma adjustments have
not been properly applied to the historical amounts in the compilation of those
statements; or (E) any other unaudited pro forma income statement data or
balance sheet items included in the Registration Statement or Prospectus do not
agree with the corresponding amounts in the pro forma income statements or
balance sheets included in the Registration Statement and Prospectus; and (iv)
they have compared specific dollar amounts, numbers of shares, percentages of
revenues and earnings, and other financial information pertaining to the Company
set forth in the Registration Statement and the Prospectus, which have been
specified by you prior to the date of this Agreement, to the extent that such
amounts, numbers, percentages, and information may be derived from the general
accounting and financial records of the Company or from schedules furnished by
the Company, and excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of specified readings,
inquiries, and other appropriate procedures specified by you set forth in such
letter, and found them to be in agreement.
(f) At the time this Agreement is executed and at the Closing Date, you
shall have received a letter from Xxxxxx & Xxxxxxx, L.L.P., independent
accountants for predecessor entities to the Company, including Mercury
Exploration Company and Michigan Gas Partners Limited
21
Partnership and certain acquired properties (collectively, the "Predecessor
Entities"), dated, respectively, as of the date of this Agreement and as of the
Closing Date addressed to the Underwriters and in form and substance
satisfactory to you, stating that, among other things: (i) they are independent
certified public accountants with respect to the Predecessor Entities within the
meaning of the Securities Act and the Securities Act Regulations and stating
that the information provided in response to Item 10 of the Registration
Statement is correct insofar as it relates to them; (ii) in their opinion, the
financial statements and schedules of the Predecessor Entities included in the
Registration Statement and the Prospectus and covered by their opinion therein
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the applicable published rules and
regulations of the Commission thereunder; and (iii) they have compared specific
dollar amounts, number of shares, percentages of revenues and earnings, and
other information pertaining to the Predecessor Entities set forth in the
Registration Statement and the Prospectus, which have been specified by you
prior to the date of this Agreement, to the extent such amounts, numbers,
percentages and information may be derived from the general accounting records
of the Company or the Predecessor Entities from schedules furnished by the
Company, and excluding any questions requiring an interpretation by legal
counsel, and other appropriate procedures specified by you set forth in such
letter, and found them to be in agreement.
(g) Prior to the Closing Date the Company shall have furnished to you
such further information, certificates and documents as you may reasonably
request.
(h) You shall have received from each person who is a director or officer
of the Company or such stockholder as have been heretofore designated by you and
listed on Schedule II hereto a 180 day lock-up agreement, in form and substance
satisfactory to the Underwriters and Underwriters' Counsel.
(i) At the Closing Date, all of the Shares (including the Additional
Shares) shall have been approved for listing on the American Stock Exchange,
subject only to notice of issuance.
(j) You shall have received from Holditch a letter, dated as of the
Closing Date, addressed to the Underwriters and in form and substance
satisfactory to you, stating, among other things (i) they are independent
petroleum engineers with respect to the Company, and (ii) nothing has come to
their attention that would lead them to conclude that the Reserve Information
referenced in the Registration Statement or the Prospectus is inaccurate or
incomplete in any material respect.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to you or to Underwriters'
Counsel pursuant to this Section 6 shall not be in all [material] respects
reasonably satisfactory in form and substance to you and to Underwriters'
Counsel, all obligations of the Underwriters hereunder may be canceled by you
at, or at any time prior to, the Closing Date and the obligations of the
Underwriters to purchase the Additional Shares may be canceled by you at, or at
any time prior to, the Additional Closing Date. Notice of such cancellation
shall be given to the Company in writing, or by telephone, telex or telegraph,
confirmed in writing.
22
7. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against
any and all losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), jointly or severally, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Shares, as originally filed
or any amendment thereof, or any related Preliminary Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the Company will not be liable in any
-------- -------
such case to the extent but only to the extent that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information referred to
in Section 9(c) furnished to the Company by or on behalf of any Underwriter
through you expressly for use therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have, including under
this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to indemnify and
hold harmless the Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the Registration Statement and
each other person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against
any and all losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), jointly or severally, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Shares, as originally filed
or any amendment thereof, or any related Preliminary Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that any
such loss, liability, claim, damage or expense arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
you expressly for use therein; provided, however, that in no case shall any
-------- -------
Underwriter be liable or responsible for any amount in excess of
23
the underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have, including under this Agreement. The Company
acknowledges that the statements set forth in the ___________, ____________ and
___________ paragraphs under the caption "Underwriting" in the Prospectus
constitute the only information furnished in writing by or on behalf of any
Underwriter expressly for use in the Registration Statement relating to the
Shares as originally filed or in any amendment thereof, any related Preliminary
Prospectus or the Prospectus or in any amendment thereof or supplement thereto,
as the case may be.
(c) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything in
this subsection to the contrary notwithstanding, an indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent; provided, however, that such consent was not unreasonably withheld. No
-------- -------
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
or claims that are the subject matter of such proceeding.
8. Contribution. In order to provide for contribution in
------------
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses
24
of the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company any contribution received by
the Company from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange Act,
officers of the Company who signed the Registration Statement and directors of
the Company) as incurred to which the Company and one or more of the
Underwriters may be subject, in such proportions as is appropriate to reflect
the relative benefits received by the Company and the Underwriters from the
offering of the Shares or, if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Underwriters shall be deemed to be in the same proportion as (x) the
total proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Company and (y) the underwriting
discounts and commissions received by the Underwriters, respectively, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company and of the Underwriters 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 Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 8, (i) in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder, and (ii) 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. Notwithstanding the provisions of this Section 8 and the
preceding sentence, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) of
this Section 8. Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for
25
contribution may be made against another party or parties, notify each party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 8 or
otherwise. No party shall be liable for contribution with respect to any action
or claim settled without its consent; provided, however, that such consent was
-------- -------
not unreasonably withheld.
9. Default by an Underwriter.
-------------------------
(a) If any Underwriter or Underwriters shall default in its or their
obligation to purchase Firm Shares or Additional Shares hereunder, and if the
Firm Shares or Additional Shares with respect to which such default relates do
not (after giving effect to arrangements, if any, made by you pursuant to
subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares
or Additional Shares, to which the default relates shall be purchased by the
non-defaulting Underwriters in proportion to the respective proportions which
the numbers of Firm Shares set forth opposite their respective names in Schedule
I hereto bear to the aggregate number of Firm Shares set forth opposite the
names of the non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of the Firm
Shares or Additional Shares, as the case may be, you may in your discretion
arrange for yourself or for another party or parties (including any non-
defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Additional Shares, as the case may be, to which such default relates
on the terms contained herein. In the event that within five calendar days
after such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 9, this Agreement or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company to sell the Additional Shares shall thereupon terminate, without
liability on the part of the Company with respect thereto (except in each case
as provided in Sections 5, 7 and 8 hereof) or the Underwriters, but nothing in
this Agreement shall relieve a defaulting Underwriter or Underwriters of its or
their liability, if any, to the other Underwriters and the Company for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to which the
default relates are to be purchased by the non-defaulting Underwriters, or are
to be purchased by another party or parties as aforesaid, you or the Company
shall have the right to postpone the Closing Date or Additional Closing Date, as
the case may be for a period, not exceeding five business days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus or in any other documents and arrangements, and the
Company agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the opinion of Underwriters' Counsel, may
thereby be made necessary or advisable. The term "Underwriter" as used in this
Agreement shall include any party substituted under this Section 9 with like
effect as if it had originally been a party to this Agreement with respect to
such Firm Shares and Additional Shares.
26
10. Survival of Representations and Agreements. All representations
------------------------------------------
and warranties, covenants and agreements of the Underwriters and the Company
contained in this Agreement, including representations of the Company in Section
1, the agreements contained in Section 5, the indemnity agreements contained in
Section 7, the contribution agreements contained in Section 8 and the agreements
contained in Section 13, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof and shall survive
delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Section 1 and the agreements contained in Sections
5, 7, 8, 11(d) and 13 hereof shall survive the termination of this Agreement,
including termination pursuant to Sections 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
----------------------------------------
(a) This Agreement shall become effective, upon the later of when (i)
you and the Company shall have received notification of the effectiveness of the
Registration Statement or (ii) the execution of this Agreement. If either the
initial public offering price or the purchase price per Share has not been
agreed upon prior to 5:00 P.M., New York time, on the fifth full business day
after the Registration Statement shall have become effective, this Agreement
shall thereupon terminate without liability to the Company or the Underwriters
except as herein expressly provided. Until this Agreement becomes effective as
aforesaid, it may be terminated by the Company by notifying you or by you
notifying the Company. Notwithstanding the foregoing, the provisions of this
Section 11 and of Sections 1, 5, 7, 8 and 13 hereof shall at all times be in
full force and effect.
(b) You shall have the right to terminate this Agreement at any time
prior to the Closing Date or the obligations of the Underwriters to purchase the
Additional Shares at any time prior to the Additional Closing Date, as the case
may be, if (A) any domestic or international event or act or occurrence has
materially disrupted, or in your opinion will in the immediate future materially
disrupt, the market for the Company's securities or securities in general; or
(B) if trading on the New York or American Stock Exchanges shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, on the New
York or American Stock Exchanges by the New York or American Stock Exchanges or
by order of the Commission or any other governmental authority having
jurisdiction; or (C) if a banking moratorium has been declared by a state or
federal authority or if any new restriction materially adversely affecting the
distribution of the Firm Shares or the Additional Shares, as the case may be,
shall have become effective; or (D) if the United States becomes engaged in
hostilities or there is an escalation of hostilities involving the United States
or there is a declaration of a national emergency or war by the United States or
(ii) if there shall have been such change in political, financial or economic
conditions if the effect of any such event in (i) or (ii) as in your judgment
makes it impracticable or inadvisable to proceed with the offering, sale and
delivery of the Firm Shares or the Additional Shares, as the case may be, on the
terms contemplated by the Prospectus.
27
(c) Any notice of termination pursuant to this Section 11 shall be by
telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by you, reimburse the Underwriters for all
reasonable out-of-pocket expenses (including the reasonable fees and expenses of
their counsel), incurred by the Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be
-------
otherwise specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and confirmed
in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Xxxx Xxxx, with a copy to: Jenkens & Xxxxxxxxx, a
Professional Corporation, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
Attention: L. Xxxxxx Xxxxxx; if sent to the Company, shall be mailed, delivered,
or telegraphed and confirmed in writing to the Company, 0000 Xxxxxxxxxxxx
Xxxxxx, Xxxx Xxxxx, Xxxxx 00000, Attention: Chief Financial Officer, with a
copy to Xxxxxx & Hanger, LLP, 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx
00000, Attention: Xxxxx Xxxxx.
13. Consent to Jurisdiction; Waiver of Immunities; Appointment of
-------------------------------------------------------------
Agent for Service.
-----------------
(a) The Company:
(i) irrevocably submits to the nonexclusive jurisdiction of any New
York State or federal court sitting in the State of New York, County of New York
and any appellate court from any thereof in any action, suit or proceeding
arising out of or relating to this Agreement or any other document delivered in
connection herewith and irrevocably waives any immunity from such action or
proceeding it may otherwise enjoy in the aforementioned courts;
(ii) irrevocably agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State court or
in such federal court;
(iii) irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding; and
28
(iv) irrevocably designates, appoints and empowers CT Corporation
System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its designee, appointee and
authorized agent to receive for and on its behalf service of any and all legal
process, summons, notices and documents that may be served in any action, suit
or proceeding brought against it, with respect to its obligations, liabilities
or any other matter arising out of or relating to this Agreement or any other
document delivered in connection herewith and that such service may be made on
such designee, appointee and authorized agent in accordance with legal
procedures prescribed for such courts, and it being understood that the
designation and appointment of CT Corporation System as such authorized agent
shall become effective immediately without any further action; and each further
agrees that to the extent permitted by law, proper service of process upon CT
Corporation System (or its successors as agent for service of process), shall be
deemed in every respect effective service of process upon it in any such action,
suit or proceeding.
(b) Nothing in this Section 13 shall affect the right of any person to
serve legal process in any other manner permitted by law or affect the right of
any person to bring any action or proceeding against the Company or its
properties in the courts of other jurisdictions.
(c) The provisions of this Section 13 shall survive any termination of
this Agreement, in whole or in part.
14. Parties. This Agreement shall insure solely to the benefit of, and
-------
shall be binding upon, the Underwriters, the Company and the controlling
persons, directors, officers and others referred to in Sections 7 and 8, and
their respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of Shares from any of the Underwriters.
15. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York for contracts made and to
be fully performed in such state without regard to principles of conflicts of
law.
16. Counterparts. This Agreement may be executed and delivered
------------
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
29
If the foregoing correctly sets forth the understanding between you and the
Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among us.
Very truly yours,
QUICKSILVER RESOURCES INC.
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
Xxxx Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxxx & Company, Inc.
as representatives of the several Underwriters
Named in Schedule I hereto
c/o Bear Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
By: Bear, Xxxxxxx & Co. Inc.
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
30
SCHEDULE I
Total Number of Firm
Total Number of Firm
Name of Underwriter Shares to be Purchased
------------------- ----------------------
Bear, Xxxxxxx & Co. Inc......................
Xxxx Xxxxxxxx Xxxxxxx........................
Xxxxxx Xxxxxx & Company, Inc.................
Total......................... [7,000,000]
31
SCHEDULE II
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Houston Xxxxxxxxx
Xxxxxxx Xxxxxx
Xxxx Van Naerssen
Xxxxx Xxxxxx
Xxxxxx X. Xxxxxx
X. Xxxxxxx Xxxx
X. Xxxxxxx Xxxxxx, III
Xxxx Xxxxxx
Xxxx Xxxxxx Self
Mercury Exploration Company
Quicksilver Energy L.C.
Joint Energy Development Investments Limited Partnership
32
