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EXHIBIT 1.1
4,000,000 Shares
LOMAK PETROLEUM, INC.
Common Stock
UNDERWRITING AGREEMENT
_________ __, 1997
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
X.X. XXXXXXX & SONS, INC.
XXXXXXXX & COMPANY SECURITIES, INC.
As Representatives of the several Underwriters
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. Lomak Petroleum, Inc., a Delaware
corporation (the "Company") proposes to issue and sell, pursuant to the terms
of this Agreement, to the several Underwriters named in Schedule A hereto (the
"Underwriters" which term also shall include any underwriter substituted as
hereinafter provided in Section 11) an aggregate of 4,000,000 shares of Common
Stock, par value $.01 per share (the "Common Stock") of the Company. The
aggregate of 4,000,000 shares so proposed to be sold by the Company is herein
called the "Firm Stock". The Company also proposes to sell severally to the
Underwriters, on a pro rata basis, at the option of the Underwriters, an
aggregate of not more than 600,000 additional shares of Common Stock as
provided in Section 3 of this Agreement. The aggregate of 600,000 shares so
proposed to be sold is herein called the "Optional Stock". The Firm Stock and
the Optional Stock are collectively referred to herein as the "Stock". Xxxxxx
Xxxxxxx & Co. Incorporated, PaineWebber Incorporated, Xxxxx Xxxxxx Inc., X.X.
Xxxxxxx & Sons, Inc. and XxXxxxxx & Company Securities, Inc. are acting as
representatives of the several Underwriters and in such capacity are
hereinafter referred to as the "Representatives".
It is understood by all parties that the Company is concurrently
entering into an agreement, dated the date hereof (the "Debt Underwriting
Agreement") providing for the sale by the Company of $100,000,000 principal
amount of its __% Senior Subordinated Notes due 2007 to Chase Securities Inc.,
NationsBanc Capital Markets, Inc., Bear, Xxxxxxx & Co. Inc. and Credit Suisse
First Boston Corporation, as underwriters.
Before the purchase and public offering of the Stock by the
several Underwriters, the Company and the Representatives,
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acting on behalf of the several Underwriters, shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company and the Representatives and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Stock will be governed by this Agreement, as supplemented by
the Pricing Agreement. From and after the date of the execution and delivery
of the Pricing Agreement, this Agreement shall be deemed to incorporate the
Pricing Agreement.
2. (a) Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, the several Underwriters,
as of the date hereof and as of the date of the Pricing Agreement (such later
date being hereinafter referred to as the "Representation Date"), that:
(i) A registration statement on Form S-3 (File No.
333-_______) with respect to the Stock, a copy of which has heretofore been
delivered to you, has been carefully prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Act"), and the
published rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") under the Act, and has been filed
with the Commission under the Act; and the Company has so prepared and proposes
so to file prior to the effective date of such registration statement an
amendment to such registration statement including the final form of prospectus
(which may omit such information as permitted by Rule 430A of the Rules and
Regulations). Such registration statement as amended and the prospectus
constituting a part thereof (including in each case all documents incorporated
by reference therein, as from time to time amended or supplemented pursuant to
the Act, the Securities Exchange Act of 1934 (the "Exchange Act") or otherwise
and the information, if any, deemed to be a part thereof pursuant to Rule
430A(b) or Rule 434 of the Rules and Regulations) are hereinafter referred to
as the "Registration Statement" and the "Prospectus", respectively, except that
if any revised prospectus shall be provided to the Underwriters by the Company
for use in connection with the offering of the Stock which differs from the
prospectus on file at the Commission at the time the Registration Statement
becomes effective (whether or not such prospectus is required to be filed by
the Company pursuant to Rule 424(b) of the Rules and Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Underwriters for such use. If the Company elects to
rely on Rule 434 under the Rules and Regulations, all references to the
Prospectus shall be deemed to include, without limitation, the form of
prospectus and the abbreviated term sheet, taken together, provided to the
Underwriters by the Company in reliance on Rule 434 under Rules and Regulations
(the "Rule 434 Prospectus"). If the Company files a registration statement to
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register a portion of the Securities and relies on Rule 462(b) for such
registration statement to become effective upon filing with the Commission (the
"Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be to both the registration statement
referred to above (No. 333-__) and the Rule 462 Registration Statement, as each
such registration statement may be amended pursuant to the Act.
(ii) When the Registration Statement becomes effective and as
of the Representation Date, the Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act and the Rules
and Regulations. At the time the Registration Statement becomes effective and
at the Representation Date, the Registration Statement will not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, at the time the Registration Statement becomes
effective and as of the Representation Date (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 Stock which differs from
the prospectus on file at the Commission at the time the Registration Statement
becomes effective, in which case at the time it is first provided to the
Underwriters for such use) and at the Closing Date (as hereinafter defined),
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that the foregoing representations, warranties and agreements shall
not apply to information relating to the Underwriters contained in or omitted
from the Registration Statement or the Prospectus in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf
of any Underwriter, directly or through the Representatives, specifically for
use in the preparation thereof.
(iii) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the published rules and
regulations of the Commission thereunder (the "Exchange Act Regulations"), and
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and incorporated
by reference, when they are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act and the published
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or
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necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Company and the transactions
contemplated by this Agreement meet the requirements for use of Form S-3 under
the Act.
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus, (A) neither
the Company nor any of its subsidiaries has incurred any liabilities or
obligations (indirect, direct or contingent) or entered into any oral or
written agreements or other transactions not in the ordinary course of business
that, singly or in the aggregate, could reasonably be expected to be material
to the Company and its subsidiaries considered as a whole or that could
reasonably be expected to result in a material reduction in the earnings of the
Company and its subsidiaries considered as a whole, (B) neither the Company nor
any of its subsidiaries has sustained any loss or interference with its
business or properties from strike, fire, flood, windstorm, accident or other
calamity (whether or not covered by insurance) that, singly or in the
aggregate, could reasonably be expected to be material to the Company and its
subsidiaries considered as a whole, (C) there has been no material change in
the indebtedness of the Company, no change in the capital stock of the Company
and, except for regular quarterly dividends, no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital stock,
and (D) there has not been any material adverse change, nor any development
that could, singly or in the aggregate, result in a material adverse change in
the condition (financial or other), business, prospects or results of
operations of the Company and its subsidiaries considered as a whole, whether
or not arising in the ordinary course of business.
(v) The financial statements, together with the related
notes and schedules, set forth or incorporated by reference in the Prospectus
and elsewhere in the Registration Statement, fairly present, on the basis
stated in the Registration Statement, the financial position and the results of
operations and changes in financial position of the Company and its
consolidated subsidiaries at the respective dates or for the respective periods
therein specified. Such financial statements and related notes and schedules
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis except as may be set forth in the Prospectus.
The selected financial data set forth in the Prospectus under the caption
"Selected Consolidated Financial Data" and in the Company's Annual Report on
Form 10-K for the fiscal-year ended [December 31, 1995], incorporated by
reference in the Prospectus fairly presents, on the basis stated in the
Registration Statement and such Annual Report, the information set forth
therein.
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(vi) The pro forma financial statements and other pro forma
information and data of the Company and the related notes thereto included in
the Registration Statement and the Prospectus have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma financial
statements, present fairly in all material respects the information shown
therein and have been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(vii) Xxxxxx Xxxxxxxx LLP, Xxxxx & Xxxxx LLP, Coopers &
Xxxxxxx L.L.P. and KPMG Peat Marwick LLP, who have expressed their opinions on
the audited financial statements and related schedules included or incorporated
by reference in the Registration Statement, are independent public accountants
as required by the Act and the Rules and Regulations.
(viii) The Company and each of its subsidiaries have been duly
organized and are validly existing and in good standing as corporations or
limited partnerships under the laws of their respective jurisdictions of
organization, with power and authority (corporate and other) to own, lease and
operate their properties and to conduct their businesses as described in the
Registration Statement and Prospectus; the Company and each of its subsidiaries
are in possession of and operating in compliance with all franchises, grants,
authorizations, licenses, permits, easements, consents, certificates and orders
required for the conduct of its business, all of which are valid and in full
force and effect, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or modification
of any such franchise, grant, authorization, license, permit, easement,
consent, certificate or order which, singly or in the aggregate, if the subject
of an unfavorable decision, would result in a materially adverse change in the
condition (financial or otherwise), business, prospects or results of
operations of the Company and its subsidiaries considered as a whole; and the
Company and each of such subsidiaries are duly qualified to do business and in
good standing as foreign corporations or limited partnerships in all other
jurisdictions where their ownership or leasing of properties or the conduct of
their businesses requires such qualification.
(ix) The Company has authorized, issued and outstanding
capital stock as set forth under the heading "Capitalization" in the Prospectus
(except for subsequent issuances, if any, pursuant to reservations or
agreements referred to in the Prospectus); the issued and outstanding shares of
Common Stock of the Company conform to the description thereof in the
Prospectus and have been duly authorized and validly
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issued and are fully paid and nonassessable and are listed on the New York
Stock Exchange; the stockholders of the Company have no preemptive rights with
respect to any shares of capital stock of the Company and all outstanding
shares of capital stock of each corporate subsidiary have been duly authorized
and validly issued, and are fully paid and nonassessable and are owned directly
by the Company or by another subsidiary of the Company free and clear of any
liens, encumbrances, equities or claims.
(x) The Stock to be issued and sold by the Company to the
Underwriters hereunder has been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein and in the Pricing
Agreement, will be duly and validly issued and fully paid and nonassessable and
will conform to the description thereof in the Prospectus.
(xi) There are no contracts, agreements or understandings
between the Company or its subsidiaries and any third party (whether acting in
an individual, fiduciary or other capacity) granting such third party the right
to require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such third
party or to require the Company to include such securities in the securities
registered pursuant to the registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company
under the Act.
(xii) There are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the registration Statement that
are not described or filed as required. The contracts so described in the
Registration Statement and the Prospectus are in full force and effect and
neither the Company or any of its subsidiaries nor, to the best knowledge of
the Company, any other party is in breach of or default under any such
contracts.
(xiii) The oil and gas reserve estimates of the Company and its
subsidiaries contained in the Registration Statement and the Prospectus have
been prepared primarily by independent petroleum consultants listed in the
Prospectus in accordance with Commission guidelines applied on a consistent
basis throughout the periods involved, and neither of the Company nor any of
its subsidiaries has any reason to believe that such estimates do not fairly
reflect oil and gas reserves of the Company and its subsidiaries at the dates
indicated.
(xiv) Except as disclosed in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
subsidiary is the subject, that are required
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to be disclosed in the Registration Statement (other than as described
therein), or which, if determined adversely to the Company or any subsidiary,
would individually or in the aggregate result in a material adverse change in
the condition (financial or otherwise), business, prospects or results of
operations of the Company and its subsidiaries considered as a whole or which
might materially and adversely affect the consummation of this Agreement; and
to the best of the Company's knowledge no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(xv) The Company is not or with the giving of notice or
passage of time or both would be, in breach or violation of any of the terms or
provisions of or in default under (A) any statute, rule or regulation
applicable to the Company or any of its subsidiaries, (B) any indenture,
contract, lease, mortgage, deed of trust, note or other agreement or instrument
to which the Company or such subsidiary is a party or by which it may be bound,
(C) its certificate of incorporation, partnership agreement, by-laws or other
organizational documents, and (D) any order, decree or judgment of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries. The performance of this Agreement and the Agreement dated
December 31, 1996, between the Company and American Cometra, Inc. ("Cometra")
(the "Cometra Acquisition Agreement") and the consummation of the transactions
herein contemplated will not, with the giving of notice or passage of time or
both, result in a breach or violation of any of the terms or provisions of or
constitute a default under (W) any statute, rule or regulation applicable to
the Company or any of its subsidiaries, (X) any indenture, contract, mortgage,
lease, deed of trust, note or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it is bound, (Y) the
Company's or any such subsidiary's certificate of incorporation, partnership
agreements, by-laws or other organizational documents, or (Z) any order, decree
judgment of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their respective properties.
(xvi) No labor dispute with the employees of the Company or
any of its subsidiaries exists or is imminent; and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors which might be expected to
result in any material adverse change in the condition (financial or
otherwise), or in the earnings, affairs or business prospects of the Company
and its subsidiaries considered as a whole.
(xvii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is
required for the issuance and sale
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of the Stock by the Company or for the consummation by the Company of the
transactions contemplated by this Agreement, including, without limitation, the
use of the proceeds from the sale of the Stock to be sold by the Company in the
manner contemplated in the Prospectus under the caption "Use of Proceeds,"
except such as may be required by the National Association of Securities
Dealers, Inc. (the "NASD") or under the Act or the securities or Blue Sky laws
of any jurisdiction in connection with the purchase and distribution of the
Stock by the Underwriters.
(xviii) This Agreement has been and the Pricing Agreement will
be duly authorized, executed and delivered by the Company.
(xix) The Company and its subsidiaries own or have obtained
valid licenses for all trademarks, trademark registrations, service marks,
service xxxx registrations, trade names and copyrights described in the
Prospectus as being owned, licensed or used by the Company or any of its
subsidiaries or that are necessary for the conduct of their respective
businesses as described in the Prospectus (collectively, "Intellectual
Property") and neither the Company nor any of its subsidiaries is aware of any
claim (or of any facts that would form a reasonable basis for any claim) to the
contrary or any challenge by any third party to the rights of the Company or
any of its subsidiaries with respect to any such Intellectual Property or to
the validity or scope of any such Intellectual Property and neither the Company
nor any of its subsidiaries has any claim against a third party with respect to
the infringement by such third party of any such Intellectual Property, which
claims or challenges, if adversely determined, could, singly or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), business prospects or results of operations of the Company and its
subsidiaries considered as a whole. The Company has a good faith belief in the
distinctiveness and enforceability of all trademarks, service marks and trade
names comprising the Intellectual Property.
(xx) The Company and its subsidiaries have such certificates,
permits, licenses, franchises, consents, approvals, authorizations and
clearances as are necessary to own, lease or operate their respective
properties and to conduct their respective businesses in the manner described
in the Prospectus ("Licenses") and all such Licenses are valid and in full
force and effect. The Company and each of its subsidiaries are in compliance
in all material respects with their respective obligations under such Licenses
and no event has occurred that allows, or after notice or lapse of time or both
would allow, revocation, suspension or termination of any such License or a
material violation of any such laws or regulations. No such License contains a
burdensome restriction on the Company or any
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of its subsidiaries that is not adequately disclosed in the Registration
Statement and the Prospectus.
(xxi) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(xxii) The Company and each of its subsidiaries has (i) good
and defensible title to all its interests in its oil and gas properties, title
investigations having been carried out by or on behalf of the Company or such
subsidiary in accordance with good practice in the oil and gas industry in the
areas in which it operates and (ii) good and marketable title to, or has valid
rights to lease or otherwise use, all items of other real or personal property
which are material to the business of the Company and its subsidiaries taken as
a whole, in each case free and clear of all liens, encumbrances, claims and
defects that may materially interfere with the condition (financial or
otherwise), results of operations, business or prospects of the Company and its
subsidiaries taken as a whole.
(xxiii) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission, or other release of any
kind of toxic or other wastes or other hazardous substances, including, but not
limited to, brine, crude oil, natural gas liquids and other petroleum
materials, by, due to, or caused by the Company or any of their subsidiaries
(or, to the best of the Company's knowledge, any other entity for whose acts or
omissions, the Company or any of its subsidiaries is or may be liable) upon any
of the property now or previously owned or leased by the Company or any of its
subsidiaries, or upon any other property, in violation of any statute or any
ordinance, rule, regulation, order, judgment decree or permit or which would,
under any statute or any ordinance, judgment rule (including rule of common
law), regulation, order, decree or permit, give rise to any liability, except
for any violation or liability which would not have, singularly or in the
aggregate with all such violations and liabilities, a material adverse effect
on the condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole; there has been
no disposal, discharge, emission or other release of any kind onto such
property or into the environment surrounding such property of any toxic or
other wastes or other hazardous substances with respect to which the Company or
any of its subsidiaries has knowledge, except for any such disposal, discharge,
emission, or other release of any kind which would not have, singularly or in
the aggregate with all such discharges and other releases, a material adverse
effect on the condition (financial or otherwise), results of operations,
business or prospects of the Company and its subsidiaries taken as a whole.
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(xxiv) The Company and its subsidiaries carry or are entitled
to the benefits of insurance in such amounts and covering such risks as is
generally maintained by or on behalf of companies of established repute engaged
in the same of similar business, and all such insurance is in full force and
effect.
(xxv) As of the date hereof, (1) all royalties, rentals,
deposits and other amounts due on the oil and gas properties of the Company and
its subsidiaries have been properly and timely paid, and no proceeds form the
sale or production attributable to the oil and gas properties of the Company
and its subsidiaries are currently being held in suspense by any purchaser
thereof, except where such amounts due could not, singly or in the aggregate,
have a material adverse effect on the condition (financial or otherwise),
business, prospects or results of operation of the Company and its subsidiaries
taken as a whole and (2) there are no claims under take-or-pay contracts
pursuant to which natural gas purchasers have any make-up rights affecting the
interest of the Company and its subsidiaries in its oil and gas properties,
except where such claims could not, singly or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), business, prospects
or results of operation of the Company and its subsidiaries taken as a whole;
(xxvi) As of date hereof, the aggregate undiscounted monetary
liability of the Company and its subsidiaries for petroleum taken or received
under any operating or gas balancing and storage agreement relating to its oil
and gas properties that permits any person to receive any portion of the
interest of the Company and its subsidiaries in any petroleum or to receive
cash or other payments to balance any disproportionate allocations of petroleum
could not, singly or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), business, prospects or results of operation
of the Company and its subsidiaries taken as a whole;
(xxvii) Each "employee benefit plan" within the meaning of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), in which
employees of the Company or any of its subsidiaries are eligible to participate
is in compliance in all material respects with the applicable provisions of
ERISA and the Internal Revenue Code of 1986, as amended. Neither the Company
nor any of its subsidiaries has any has any liability under Title IV of ERISA,
nor does the Company or any of its subsidiaries expect that any such liability
will be incurred, that could singly or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), business, prospects
or results of operations of the Company and its subsidiaries considered as a
whole;
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(xxviii) The Company and its subsidiaries make and keep accurate
books, records and accounts reflecting their respective assets and maintain
internal accounting controls which provide reasonable assurance that (A)
transactions are executed with management's authorization, (B) transactions are
recorded as necessary to permit preparation of financial statements and to
maintain accountability for assets, (C) access to assets is permitted only in
accordance with management's authorization and (D) the reported accountability
of assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxix) The Company and its subsidiaries have filed all federal,
state, local and foreign tax returns required to be filed, such returns are
complete and accurate in all material respects, and all taxes shown by such
returns or otherwise assessed that are due or payable have been paid, except
such taxes as are being contested in good faith and as to which adequate
reserves have been provided. The charges, accruals and reserves on the books
of the Company and its subsidiaries in respect of any tax liability for any
year not finally determined are adequate to meet any assessments or
reassessments for additional taxes; and there has been no tax deficiency
asserted and, to the best knowledge of the Company, no tax deficiency might be
asserted or threatened against the Company or any of its subsidiaries that
could, singly or in the aggregate, have a material adverse effect on the
financial (financial or otherwise), business, prospects or results of
operations of the Company and its subsidiaries considered as a whole.
(xxx) No transaction has occurred between or among the
Company, its subsidiaries and any of their respective officers, directors or
affiliates or, the best of the Company's knowledge, any affiliate of any such
officer or director, that is required to be described in the Registration
Statement that is not so described.
(xxxi) The Company has not taken and will not take, directly or
indirectly, any action designed to or that could reasonably be expected to
cause or result in the stabilization or manipulation of the price of the Common
Stock and the Company has not distributed and will not distribute any offering
material in connection with the offering and sale of the Stock other than any
preliminary prospectus filed with the Commission or the Prospectus or other
materials, if any, permitted by the Act or the Rules or Regulations.
(xxxii) No forward looking statement within the meaning to
Section 27A of the Act and Section 21E of the Exchange Act contained in the
Registration Statement has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.
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(xxxiii) Neither the Company nor any of its subsidiaries has, at
anytime during the last five years, (A) made any unlawful contribution to any
candidate for foreign office or failed to disclose fully any contributions in
violation of law or (B) made any payment to any federal, state or local
governmental officer or official or other person charged with similar public or
quasi-public duties, other than payments required or permitted by the laws of
the United States or any jurisdiction thereof.
(b) Any certificate signed by an officer of the Company and
delivered to the Representatives or counsel for the Underwriters shall be
deemed a representation and warranty of the Company to each Underwriter as to
the matters covered thereby.
3. Purchase by and Sale and Delivery to Underwriters; Closing
Date. On the basis of the representations, warranties, covenants and
agreements herein contained, and subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters the Firm Stock, and
subject to the terms and conditions herein set forth, the Underwriters agree,
severally and not jointly, to purchase from the Company, at the price per share
set forth in the Pricing Agreement, the number of shares of Firm Stock set
forth opposite their names in Schedule A (except as otherwise provided in the
Pricing Agreement), subject to adjustment in accordance with Section 11 hereof.
If the Company has elected not to rely upon Rule 430A under the
Rules and Regulations, the initial public offering price and the purchase price
per share to be paid by the several Underwriters for the Firm Stock each have
been determined and set forth in the Pricing Agreement, dated the date hereof,
and an amendment to the Registration Statement and the Prospectus will be filed
before the Registration Statement becomes effective.
If the Company has elected to rely upon Rule 430A under the Rules
and Regulations, the purchase price per share to be paid by the several
Underwriters for the Firm Stock shall be an amount equal to the initial public
offering price, less an amount per share to be determined by agreement between
the Representatives and the Company. The initial public offering price per
share of the Firm Stock shall be a fixed price to be determined by agreement
between the Representatives and the Company. The initial public offering price
per share of the Firm Stock shall not be higher than the last reported sale
price (regular way) or the last reported asked price, whichever is higher, of
the Common Stock on the New York Stock Exchange immediately prior to
determination of the initial public offering price. The initial public
offering price and the purchase price, when so determined, shall be set forth
in the Pricing Agreement. In the event that such prices have not been agreed
upon and the Pricing Agreement has not been executed and delivered by all
parties thereto by the close of business on the fourteenth
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business day following the date of this Agreement, this Agreement shall
terminate forthwith, without liability of any party to any other party, unless
otherwise agreed to by the Company and the Representatives.
The Company will deliver the Firm Stock to the Representatives
for the respective accounts of the several Underwriters (in the form of
definitive certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given at or
prior to 12:00 Noon, New York Time, on the business day preceding the Closing
Date or, if no such direction is received, in the names of the respective
Underwriters in the amount set forth opposite each Underwriter's name on
Schedule A hereto), against payment of the purchase price therefor in
immediately available funds, all at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000. The time and date of delivery and
closing shall be at 10:00 A.M., on the third (or, if pricing is determined
after 4:30 p.m. New York time, the fourth) full business day after the
Registration Statement becomes effective (or, if the Company has elected to
rely upon Rule 430A, the third (or, if pricing is determined after 4:30 p.m.
New York time, the fourth) full business day after execution of the Pricing
Agreement); provided, however, that such date and time may be accelerated or
extended by agreement between the Company and the Representatives or postponed
pursuant to the provisions of Section 11 hereof. The time and date of such
payment and delivery are herein referred to as the "Closing Date". The Company
shall make the certificates for the Stock available to the Representatives for
examination on behalf of the Underwriters not later than 3:00 P.M., New York
Time, on the business day preceding the Closing Date.
In addition, for the purpose of covering any over-allotments in
connection with the distribution and sale of the Firm Stock as contemplated by
the Prospectus, the Company hereby grants the Underwriters an option to
purchase, severally and not jointly, up to 600,000 shares in the aggregate of
the Optional Stock. The purchase price per share to be paid for the Optional
Stock shall be the same price per share as for the Firm Stock, less the amount
of any dividend declared by the Company and payable on any Optional Stock and
as to which the record date has occurred after the date of the Pricing
Agreement. The option granted hereby may be exercised as to all or any part of
the Optional Stock at any time not more than 30 days subsequent to the
effective date of this Agreement. No Optional Stock shall be sold and
delivered unless the Firm Stock previously has been, or simultaneously is, sold
and delivered. The right to purchase the Optional Stock or any portion thereof
may be surrendered and terminated at any time upon notice by the
Representatives to the Company.
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The option granted hereby may be exercised by the Representatives
on behalf of the Underwriters by giving written notice to the Company setting
forth the number of shares of the Optional Stock to be purchased by them and
the date and time for delivery of and payment for the Optional Stock. Such
date and time for delivery of and payment for the Optional Stock (which may be
the Closing Date) is herein called the "Option Closing Date" and shall not be
later than three days after written notice is given. Optional Stock shall be
purchased for the account of each Underwriter in the same proportion as the
number of shares of Firm Stock set forth opposite such Underwriter's name in
Schedule A hereto bears to the total number of shares of Firm Stock (subject to
adjustment by the Representatives to eliminate odd lots). Upon exercise of the
option by the Representatives, the Company agrees to sell to the Underwriters
the number of shares of Optional Stock set forth in the written notice of
exercise and the Underwriters agree, severally and not jointly, subject to the
terms and conditions herein set forth, to purchase such shares of Optional
Stock.
The Company will deliver the Optional Stock to the
Representatives for the respective accounts of the several Underwriters (in the
form of definitive certificates, issued in such names and in such denominations
as the Representatives may direct by notice in writing to the Company given at
or prior to 12:00 Noon, New York Time, on the business day preceding the Option
Closing Date or, if no such direction is received, in the names of the
respective Underwriters), against payment of the purchase price therefor in
immediately available funds, all at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000. The Company shall make the
certificates for the Optional Stock available to the Representatives for
examination on behalf of the Underwriters not later than 3:00 P.M., New York
Time, on the business day preceding the Option Closing Date.
It is understood that Xxxxxx Xxxxxxx & Co. Incorporated,
PaineWebber Incorporated, Xxxxx Xxxxxx Inc., X.X. Xxxxxxx & Sons, Inc. or
XxXxxxxx & Company Securities, Inc., individually and not as Representatives of
the several Underwriters, may (but shall not be obligated to) make payment to
the Company on behalf of any Underwriter or Underwriters, for the Stock to be
purchased by such Underwriter or Underwriters. Any such payment by Xxxxxx
Xxxxxxx & Co. Incorporated, PaineWebber Incorporated, Xxxxx Xxxxxx Inc., X.X.
Xxxxxxx & Sons, Inc. or XxXxxxxx & Company Securities, Inc. shall not relieve
such Underwriter or Underwriters from any of its or their other obligations
hereunder.
After the Registration Statement becomes effective, the several
Underwriters propose to make an initial public offering of the Stock at the
initial public offering price. The
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Representatives shall promptly advise the Company of the commencement of the
initial public offering.
4. Covenants and Agreements of the Company. The Company
covenants and agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective under the Act, will advise
the Representatives promptly as to the time at which the Registration
Statement becomes effective, will advise the Representatives promptly of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution of any
proceedings for that purpose, and will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible
the lifting thereof, if issued. If the Company elects to rely on Rule
434 under the Rules and Regulations, the Company will prepare an
"abbreviated term sheet" that complies with the requirements of Rule 434
under the Rules and Regulations. If the Company elects not to rely on
Rule 434, the Company will provide the Underwriters with copies of the
form of Prospectus, in such number as the Underwriters may reasonably
request, and file or transmit for filing with the Commission such
Prospectus in accordance with Rule 424(b) of the Rules and Regulations
by the close of business in New York on the business day immediately
succeeding the date of the Pricing Agreement. If the Company elects to
rely on Rule 434, the Company will provide the Underwriters with copies
of the form of Rule 434 Prospectus, in such number as the Underwriters
may reasonably request, and file or transmit for filing with the
Commission the form of Rule 434 Prospectus complying with Rule 434(c)(2)
of the Act in accordance with Rule 424(b) of the Act by the close of
business in New York on the business day immediately succeeding the date
of the Pricing Agreement.
(b) The Company will advise the Representatives promptly of any
request by the Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or for additional information,
and will not at any time file any amendment to the Registration
Statement or supplement to the Prospectus which shall not previously
have been submitted to the Representatives a reasonable time prior to
the proposed filings thereof or to which the Representatives shall
reasonably object in writing or which is not in compliance with the Act
and the Rules and Regulations.
(c) The Company will prepare and file with the Commission,
promptly upon the request of the Representatives, any amendments or
supplements to the
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Registration Statement or the Prospectus (including any revised
prospectus which the Company proposes for use by the Underwriters in
connection with the offering of the Stock which differs from the
prospectus on file at the Commission at the time the Registration
Statement becomes effective, whether or not such revised prospectus is
required to be filed pursuant to Rule 424 of the Rules and Regulations
or any abbreviated term sheet prepared in reliance on Rule 434 of the
Rules and Regulations) which in the opinion of the Representatives may
be necessary to enable the several Underwriters to continue the
distribution of the Stock and will use its best efforts to cause the
same to become effective as promptly as possible. The Company will
promptly file all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery
of a prospectus is required in connection with the offering or sale of
the Stock.
(d) If at any time after the effective date of the Registration
Statement when a prospectus relating to the Stock is required to be
delivered under the Act any event relating to or affecting the Company
or any of its subsidiaries occurs or has occurred as a result of which
the Prospectus would include an untrue statement of a material fact, or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary, at any time to amend the
Prospectus to comply with the Act, the Company will promptly notify the
Representatives thereof and will prepare an amended or supplemented
prospectus (in form and substance satisfactory to counsel to the
Underwriters) or, with the consent of counsel to the Underwriters, make
an appropriate filing pursuant to Section 13 or 14 of the Exchange Act
which will correct such statement or omission; and, in case any
Underwriter is required to deliver a prospectus relating to the Stock
nine months or more after the effective date of the Registration
Statement, the Company upon the request of the Representatives and at
the expense of such Underwriter will prepare promptly such prospectus or
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act.
(e) The Company will deliver to the Representatives, at or
before the Closing Date, signed copies of the Registration Statement and
all amendments thereto including all financial statements and exhibits
thereto and all documents theretofore incorporated by reference therein,
and will deliver to the Representatives such number of copies of
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the Registration Statement, including such financial statements and all
documents theretofore incorporated by reference therein but without
exhibits, and of all amendments thereto, as the Representatives may
reasonably request. The Company will deliver or mail to or upon the
order of the Representatives on the date of the initial public offering,
and thereafter from time to time during the period when delivery of a
prospectus relating to the Stock is required under the Act, as many
copies of the Prospectus, in final form or as thereafter amended or
supplemented as the Representatives may reasonably request.
(f) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 60 days
after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 under the Act) which will
be in reasonable detail (but which need not be audited) and which will
comply with Section 11(a) of the Act, covering a period of at least
twelve months beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in Rule
158) of the Registration Statement.
(g) The Company will furnish to its shareholders annual reports
containing financial statements certified by independent public
accountants and shall also furnish quarterly summary financial
information in reasonable detail which may be unaudited. During the
period of five years from the date hereof, the Company will deliver to
the Representatives and, upon request, to each of the other
Underwriters, copies of each annual report of the Company and each other
report furnished by the Company to its shareholders; and will deliver to
the Representatives, as soon as they are available, copies of any other
reports (financial or other) which the Company shall publish or
otherwise make available to any of its security holders as such, and as
soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange or the NASD.
(h) The Company will use its best efforts to effect the listing
of the Stock on the New York Stock Exchange.
(i) The Company will use the net proceeds received by it from
the sale of the Stock in the manner specified in the Prospectus under
"Use of Proceeds".
(j) During a period of ___ days from the date of the Pricing
Agreement, the Company will not, without prior written consent of Xxxxxx
Xxxxxxx & Co. Incorporated,
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directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of or enter into any agreement to sell,
any Common Stock or any security convertible into Common Stock.
(k) At the time this Agreement is executed, the Company shall
have furnished to the Representatives a letter from each officer and
director of the Company, in which each such person agrees that, during a
period of _____ days from the date of the Pricing Agreement, such person
will not, without the prior written consent of Xxxxxx Xxxxxxx & Co.
Incorporated, directly or indirectly, (i) sell, offer to sell, grant any
option for the sale of, or otherwise dispose of or transfer, any shares
of Common Stock or any securities convertible into or exchangeable or
exercisable for such Common Stock, or file any registration statement
under the Act with respect to any of the foregoing or (ii) enter into
any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of
ownership of the Common Stock, whether any such swap or transaction is
to be settled by delivery of Common Stock or other securities, in cash
or otherwise.
5. Payment of Expenses. The Company will pay (directly or by
reimbursement) all expenses incident to the performance of its obligations
under this Agreement, including but not limited to all expenses and taxes
incident to delivery of the Stock to the Representatives, all expenses incident
to the registration of the Stock under the Act and the printing of copies of
the Registration Statement, each Preliminary Prospectus, the Prospectus, any
amendments or supplements thereto including any abbreviated terms sheet
delivered by the Company pursuant to Rule 434 of the Rules and Regulations, the
"Blue Sky" memorandum, the Agreement Among Underwriters, Underwriters'
Questionnaire and this Agreement and furnishing the same to the Underwriters
and dealers except as otherwise provided in Sections 4(d) and 4(e), the fees
and disbursements of the Company's counsel and accountants, all filing and
printing fees and expenses (including legal fees and disbursements of counsel
for the Underwriters) incurred in connection with qualification of the Stock
for sale and determination of its eligibility for investment under the laws of
such jurisdictions as the Representatives may designate, all fees and expenses
(including legal fees and disbursements of counsel for the Underwriters) paid
or incurred in connection with filings made with the National Association of
Securities Dealers, Inc. (the "NASD"), the fees and expenses incurred in
connection with the listing of the Stock on the New York Stock Exchange, the
costs of preparing stock certificates, the costs and fees of any registrar or
transfer agent and all other costs and expenses incident to the
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performance of its obligations hereunder which are not otherwise specifically
provided for in this Section.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 3 or Section 8 hereof, the Company
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the fees and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for
the Underwriters.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the
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Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraph (a) or (b) of this Section 6,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act and
(ii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either such Section, and that all such fees and expenses shall
be reimbursed as they are incurred. In the case of any such separate firm for
the Underwriters and such control persons of any Underwriters, such firm shall
be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated. In the case of
any such separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this
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paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. 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 on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand from the offering of the
Stock or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Stock shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Stock
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate
initial public offering price of the Stock. The relative fault of the Company
on the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to
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this Section 6 are several in proportion to the respective number of Stock they
have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 6 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) of this Section 6.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Stock underwritten by it and distributed to the public were
offered to the public 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. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Stock.
7. Survival of Indemnities, Representations, Warranties, etc.
The respective indemnities, covenants, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by them respectively, pursuant to this Agreement,
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter, the Company or any of its officers or
directors or any controlling person, and shall survive delivery of and payment
for the Stock.
8. Conditions of Underwriters' Obligations. The respective
obligations of the several Underwriters hereunder
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shall be subject to the accuracy, at and (except as otherwise stated herein) as
of the date hereof, the Representation Date and the Closing Date or the Option
Closing Date, as the case may be, of the representations and warranties made
herein by the Company, to the accuracy of the statements of the Company's
officers or directors in any certificate furnished pursuant to the provisions
hereof, to compliance at and as of such Closing Date by the Company with its
covenants and agreements herein contained and other provisions hereof to be
satisfied at or prior to such Closing Date, and to the following additional
conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the
Stock on the terms and in the manner contemplated in the
Prospectus.
(b) The Registration Statement shall become effective not later
than 3:00 P.M., New York City time, on the date hereof or, with the
consent of the Representatives, at a later time and date, not later,
however, than 5:30 P.M., New York City time on the first business day
following the date hereof, or at such later date as may be approved by a
majority in interest of the Underwriters, and at such Closing Date (i)
no stop order suspending the effectiveness thereof shall have been
issued and no proceedings for that purpose shall have been initiated or,
to the knowledge of the Company or the Representatives, threatened by
the Commission, and any request for additional information on the part
of the Commission (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the reasonable
satisfaction of the Representatives, and (ii) there shall not have come
to
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the attention of the Representatives any facts that would cause them to
believe that the Prospectus, at the time it was required to be delivered
to a purchaser of the Stock, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. If the Company has elected to
rely upon Rule 430A of the Rules and Regulations, the price of the Stock
and any price related information previously omitted from the effective
Registration Statement pursuant to Rule 430A shall have been transmitted
to the Commission for filing pursuant to Rule 424(b) of the Rules and
Regulations within the prescribed time period, and before the Closing
Date the Company shall have provided evidence satisfactory to the
Representatives of such timely filing, or a post-effective amendment
providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A of the Rules
and Regulations.
(c) At the time of execution of this Agreement, the
Representatives shall have received from Xxxxxx Xxxxxxxx LLP a letter,
dated the date of such execution, in form and substance previously
approved by the Representatives, and to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the Rules and Regulations.
(ii) In their opinion, the financial statements and
supporting schedule(s) examined by them and included in the Registration
Statement comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published Rules and
Regulations thereunder and with the Exchange Act and the Exchange Act
Regulations and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified Public
Accountants of the unaudited consolidated interim financial statements,
selected financial data, pro forma financial information, prospective
financial statements and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been furnished to the Representatives;
(iii) The unaudited selected financial information with
respect to the consolidated results of operations and financial position
of the Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual
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Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for the five such fiscal years
which were included or incorporated by reference in the Company's Annual
Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and
its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the Act or the Exchange Act as it applies to Form 10-Q and the
related published rules and regulations thereunder, or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with the basis for the
audited consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
in the Prospectus or incorporated by reference in the Company's
Annual Report on Form 10-K for the most recent fiscal year;
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(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included in the
Prospectus or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than three days prior
to the date of such letter, there has been any change in the
consolidated capital stock of the Company (other than issuances
of capital stock upon exercise of options, upon earn-outs of
performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of
the latest balance sheet included or incorporated by reference in
the Prospectus) or any increase in the consolidated long-term
debt of the Company and consolidated subsidiaries, any decrease
in the consolidated net current assets, net assets or other items
specified by the Representatives, or any change in any other
items specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E) there
was any decrease in consolidated net revenues or operating profit
or the total or per share amounts of consolidated net income or
other items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
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Representatives, except in each case for increases or decreases
which the Prospectus discloses have occurred or may occur; and
(v) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above, they have
carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear in
the Prospectus or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
(vi) On the basis of a reading of the unaudited consolidated
condensed pro forma financial statements included in the Registration
Statement and the Prospectus, carrying out certain specified procedures
and inquiries of certain officials of the Company and its consolidated
subsidiaries who have responsibility for financial and accounting
matters, and proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the unaudited
consolidated condensed pro forma financial statements, nothing came to
their attention that caused them to believe that the unaudited
consolidated condensed pro forma financial statements do not comply as
to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of such statements.
(d) The Representatives shall have received from Xxxxxx Xxxxxxxx
LLP a letter, dated the Closing Date, to the effect that such
accountants reaffirm, as of such Closing Date, and as through made on
such Closing Date, the statements made in the letter furnished by such
accountants pursuant to paragraph (c) of this Section 8, except that the
specified date will be a date not more than three business days prior to
the Closing Date.
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(e) At the time of execution of this Agreement, the
Representatives shall have received from Coopers & Xxxxxxx L.L.P. a
letter, dated the date of such execution, in form and substance
previously approved by the Representatives, and to the effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of the Act and the Rules and Regulations.
(ii) In their opinion, the financial statements and
supporting schedule(s) of Cometra examined by them and included
or incorporated by reference in the Registration Statement comply
as to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations thereunder and with the Exchange Act and
the Exchange Act Regulations and, if applicable, they have made a
review in accordance with standards established by the American
Institute of Certified Public Accountants of the selected
financial data and/or condensed financial statements derived from
audited financial statements of Cometra for the periods specified
in such letter, as indicated in their reports thereon, copies of
which have been furnished to the Representatives;
(iii) On the basis of limited procedures, not
constituting an examination in accordance with generally accepted
auditing standards, consisting of a reading of the unaudited
financial statements and other information referred to below, a
reading of the latest available interim financial statements of
Cometra, inspection of the minute books of Cometra since the date
of the latest audited financial statements included in the
Prospectus, inquiries of officials of Cometra responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that with respect to
Cometra:
(A) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows of Cometra included
in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of
the Act and the related published rules and regulations
thereunder, or are not in conformity with generally
accepted accounting principles applied
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on a basis substantially consistent with the basis for the
audited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included in the Prospectus for the most recent fiscal
year;
(B) any other unaudited income statement data and
balance sheet items of Cometra included in the Prospectus
do not agree with the corresponding items in the unaudited
consolidated financial statements from which such data and
items were derived, and any such unaudited data and items
were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the
audited consolidated financial statements included in the
Prospectus for the most recent fiscal year;
(C) the unaudited financial statements of Cometra
which were not included in the Prospectus but from which
were derived the unaudited condensed financial statements
referred to in clause (A) and any unaudited income
statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not
determined on a basis substantially consistent with the
basis for the audited financial statements included in the
Prospectus for the most recent fiscal year;
(D) as of a specified date not more than three
days prior to the date of such letter, there has been any
increase in the consolidated long-term debt, any decrease
in the consolidated net current assets, net assets or
other items specified by the Representatives, or any
change in any other items specified by the
Representatives, in each case as compared with amounts
shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or
may occur; and
(E) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in Clause (D) there was any
decrease in consolidated net revenues or operating profit
or the total or per share amounts of consolidated net
income or other items specified by the Representatives, or
any increases in any items specified by the
Representatives, in each case as compared with the
comparable period of the preceding year and with
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any other period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or
may occur; and
(iv) In addition to the examination referred to in
their report(s) included in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above, they
have carried out certain specified procedures, not constituting
an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are
derived from the general accounting records of Cometra, which
appear in the Prospectus, and have compared certain of such
amounts, percentages and financial information with the
accounting records of Cometra and have found them to be in
agreement.
(f) The Representatives shall have received from Coopers &
Xxxxxxx L.L.P. a letter, dated the Closing Date, to the effect that such
accountants reaffirm, as of such Closing Date, and as through made on
such Closing Date, the statements made in the letter furnished by such
accountants pursuant to paragraph (e) of this Section 8, except that the
specified date will be a date not more than three business days prior to
the Closing Date.
(g) At the time of execution of this Agreement, the
Representatives shall have received from each of Ernst & Young LLP and
KPMG Peat Marwick LLP a letter, dated the date of such execution, in
form and substance previously approved by the Representatives, and to
the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the Rules and Regulations.
(ii) In their opinion, the financial statements and
supporting schedule(s) examined by them and included in the Registration
Statement comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published Rules and
Regulations thereunder and with the Exchange Act and the Exchange Act
Regulations and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified Public
Accountants of the selected financial data and/or condensed financial
statements derived from audited financial statements of the Company for
the periods specified in such letter, as indicated in their
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reports thereon, copies of which have been furnished to the
Representatives;
(h) The Representatives shall have received from each of Ernst &
Young LLP and KPMG Peat Marwick LLP a letter, dated the Closing Date, to
the effect that such accountants reaffirm, as of such Closing Date, and
as through made on such Closing Date, the statements made in the letter
furnished by such accountants pursuant to paragraph (g) of this Section
8, except that the specified date will be a date not more than three
business days prior to the Closing Date.
(i) At the time of execution of this Agreement, the
Representatives shall have received a letter from each of Netherlands,
Xxxxxx and Associates, Inc., Xxxxxx & Co., Inc., X.X. Xxxx and
Associates, Inc., Xxxxxxxxxx & Co., Inc. and Clay, Xxxx & Xxxxxxx (the
"Independent Petroleum Engineers") dated the date of such execution, in
form and substance satisfactory to the Representatives, confirming that
they are independent petroleum consultants with respect to the Company
and the Company's subsidiaries, attaching their report with respect to
the oil and gas reserves of the Company and its subsidiaries and stating
that, as of the date of such letter, they have no reason to believe that
the conclusions and findings of such firm contained in such report are
not true and correct.
(j) The Representatives shall have received a letter (the
"bring-down letter") from each of Independent Petroleum Engineers,
addressed to the Representatives and dated the Closing Date confirming,
as of the date of the Closing Date, the conclusions and findings of such
firm with respect to the information and other matters covered by their
letter delivered to the Representatives pursuant to paragraph (i) and
confirming in all material respects the conclusions and findings set
forth in such prior letter.
(k) The Representatives shall have received from Xxxxxx & Xxxxxx
L.L.P., counsel for the Company, an opinion, dated the Closing Date, to
the effect that:
(i) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has power and authority (corporate and other) to own or
lease its properties and conduct its business as described in the
Prospectus; the Company is in possession of and is operating in
compliance with all franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders required for the
conduct of its business, all of which are valid and in full force and
effect; and the Company is duly
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qualified as a foreign corporation in good standing in all other
jurisdictions where its ownership or leasing of properties or the
conduct of its business requires such qualification.
(ii) The Company has an authorized and outstanding capital
stock as set forth under the heading "Capitalization" in the Prospectus;
all outstanding shares of Common Stock (including the Stock) conform to
the description thereof in the Prospectus and have been duly authorized
and validly issued and are fully paid and nonassessable, and the
stockholders of the Company have no preemptive rights with respect to
any shares of capital stock of the Company.
(iii) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or
any subsidiary is the subject, which individually or in the aggregate
are material; and to the best of such counsel's knowledge no such
proceedings are threatened by governmental authorities or others.
(iv) This Agreement and the Pricing Agreement have been duly
authorized, executed and delivered by the Company; and the performance
of this Agreement, the Pricing Agreement and the Cometra Acquisition
Agreement and the consummation of the transactions herein and therein
contemplated will not result in a breach or violation of any of the
terms or provisions of or constitute a default under any statute,
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument known to such counsel to which
the Company is a party or by which it is bound, the Company's
Certificate of Incorporation or By-laws, or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its properties.
(v) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement and the
Pricing Agreement, except such as may be required under the Act or as
may be required under the securities or Blue Sky laws of any
jurisdiction or by the NASD in connection with the purchase and
distribution of the Stock by the Underwriters.
(vi) The Registration Statement has become effective under
the Act and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness thereof
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has been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Act.
(vii) The Stock has been approved for listing on the New York
Stock Exchange.
(viii) The Registration Statement and the Prospectus (other
than the financial statements and supporting schedules included therein,
as to which no opinions need be rendered), and each amendment or
supplement thereto, as of their respective effective or issue dates and
as of the Closing Date complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations.
(ix) The descriptions in the Registration Statement and
Prospectus of contracts and other documents are accurate in all material
respects and such descriptions fairly present in all material respects
the information required to be shown; and such counsel does not know of
any legal or governmental proceedings or of any contracts or documents
of a character required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement or
Prospectus which are not described and filed as required.
(x) Neither the Company nor any of its subsidiaries is, and
will not be as a result of the consummation of the transactions
contemplated by this Agreement, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xi) Neither the Company nor any of its subsidiaries is a
"holding company" as defined in Section 2(a)(7) of the Public Utility
Holding Company Act of 1935, as amended.
(xii) The documents incorporated by reference in the
Prospectus (other than the financial statements and supporting schedules
included therein, as to which no opinions need be rendered), as of the
dates they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and the
published rules and regulations thereunder; and nothing has come to such
counsel's attention that would lead such counsel to believe that the
Registration Statement, at the time it became effective, at the
Representation Date or at the Closing Date, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the
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Representation Date (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 Stock which differs from the
prospectus on file at the Commission at the time the Registration
Statement became effective, in which case at the time it was first
provided to the Underwriters for such use) or at the Closing Date,
included any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(xiii) Lomak Operating Company, Lomak Production Company, Lomak
Resources Company, Buffalo Oilfield Services, Inc., Lomak Energy
Services Company, Talon Trucking Company, Eastern Petroleum Company,
Lomak Energy Company, LPI Acquisition, Inc., Lomak Production I, L.P.,
and Lomak Resources, L.L.C., subsidiaries of the Company (the
"Subsidiaries"), have each been duly organized, are validly existing as
a corporation or a limited partnership, as the case may be, in good
standing under the laws of their respective jurisdictions of
organization and have power and authority (corporate and other) to own
their respective properties and conduct their respective businesses as
described in the Prospectus, and each of such Subsidiaries are duly
qualified as foreign corporations or limited partnerships in good
standing and in all other jurisdictions where their ownership or leasing
of properties or the conduct of their businesses requires such
qualification.
(xiv) All outstanding shares of capital stock of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable, and are owned by the Company free and clear of
any liens, encumbrances, equities and claims.
(l) The Representatives shall have received from Xxxxxxx Xxxxxxx
& Xxxxxxxx, counsel for the Underwriters, their opinion or opinions
dated the Closing Date with respect to the validity of the Stock, the
Registration Statement, the Prospectus and such other related matters as
the Representatives may require. In giving such opinion, such counsel
may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United
States, upon opinions of counsel satisfactory to the Representatives.
The Company shall have furnished to such counsel such documents as they
may request for the purpose of enabling them to pass upon such matters.
(m) The Representatives shall have received a certificate, dated
such Closing Date, of the Chief Executive
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Officer or the President and the chief financial or accounting officer
of the Company to the effect that: (i) no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act; (ii) subsequent to the respective dates as
of which information is given in the Prospectus, neither the Company nor
any of its subsidiaries has incurred any liabilities or obligations,
direct or contingent, nor entered into any transactions, not in the
ordinary course of business, which in either case are material to the
Company and its subsidiaries considered as a whole, whether or not
arising in the ordinary course of business, and there has not been any
material adverse change in the condition (financial or otherwise),
business, prospects or results of operations of the Company and its
subsidiaries considered as a whole, or any change in the capital stock
or long-term debt of the Company and its subsidiaries considered as a
whole; (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or before the
Closing Date; (iv) the representations and warranties of the Company in
this Agreement are true and correct at and as of the Closing Date; (v)
between the execution of this Agreement and the Closing Date, there has
not occurred any downgrading, nor has any notice been given of any
intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the
rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Act; and (vi) between the execution
of this Agreement and the Closing Date, the business and operations
conducted by the Company and its subsidiaries have not sustained a loss
by strike, fire, flood, accident or other calamity (whether or not
insured) of such a character as to interfere materially with the conduct
of the business and operations of the Company and its subsidiaries
considered as a whole. As used in this Section 8(m), the term
"Prospectus" means the Prospectus in the form first used to confirm
sales of Stock.
(n) The Company shall have furnished to the Representatives such
additional certificates as the Representatives may have reasonably
requested as to the accuracy, at and as of the Closing Date, of the
representations and warranties made herein by it as to compliance at and
as of the Closing Date by it with its covenants and agreements herein
contained and other provisions hereof to be satisfied at or prior to the
Closing Date and as to other conditions to the obligations of the
Underwriters hereunder.
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(o) The Stock shall have been approved for listing on the New
York Stock Exchange.
(p) The closing under the Debt Underwriting Agreement shall have
occurred concurrently with the closing hereunder.
(q) In the event the Underwriters exercise the option granted in
Section 3 hereof to purchase all or any portion of the Optional Shares,
the representations and warranties of the Company contained herein and
the statements in any certificates furnished by the Company hereunder
shall be true and correct as of the Option Closing Date, and you shall
have received:
(i) A letter from each of Xxxxxx Xxxxxxxx LLP, Coopers &
Xxxxxxx L.L.P., Ernst & Young LLP and KPMG Peat Marwick LLP, in form and
substance satisfactory to you and dated the Option Closing Date,
substantially the same in scope and substance as the letters furnished
to you pursuant to Sections 8(c), 8(e) and (g) except that the specified
date in the letter furnished pursuant to this Section 8(q) shall be a
date not more than five days prior to the Option Closing Date.
(ii) A letter from each of the Independent Petroleum
Engineers, in form and substance satisfactory to you and dated the
Option Closing Date, substantially the same in scope and substance as
the letter furnished to you pursuant to Section 8(i), except that the
specified date in the letter furnished pursuant to this Section 8(q)
shall be a date not more than five days prior to the Option Closing
Date.
(iii) A certificate, dated the Option Closing Date, of the
Chief Executive Officer or President and the chief financial or
accounting officer of the Company confirming that the certificate
delivered at the Closing Date pursuant to Section 8(m) remains true as
of the Option Closing Date.
(iv) The opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated the Option Closing Date, relating to the Optional
Stock and otherwise to the same effect as the opinion required by
Section 8(k).
(v) The opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for
the Underwriters, dated the Option Closing Date, relating to the
Optional Stock and otherwise to the same effect as the opinion required
by Section 8(l).
If any of the conditions hereinabove provided for in this Section
shall not have been satisfied when and as required
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by this Agreement, this Agreement may be terminated by the Representatives by
notifying the Company of such termination in writing or by telegram at or prior
to the Closing Date, but the Representatives shall be entitled to waive any of
such conditions.
9. Termination. This Agreement shall be subject to termination
by notice given by you to the Company, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall
have been suspended or materially limited on or by, as the case may be, any of
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable
to market the Stock on the terms and in the manner contemplated in the
Prospectus.
10. Reimbursement of Underwriters. Notwithstanding any other
provisions hereof, if this Agreement shall be terminated by the Representatives
under Section 8, Section 9 or Section 12, the Company will bear and pay the
expenses specified in Section 5 hereof and, in addition to its obligations
pursuant to Section 6 hereof, the Company will reimburse the reasonable
out-of-pocket expenses of the several Underwriters (including reasonable fees
and disbursements of counsel for the Underwriters) incurred in connection with
this Agreement and the proposed purchase of the Stock, and promptly upon demand
the Company will pay such amounts to you as Representatives. In addition, the
provisions of Section 6 shall survive any such termination.
11. Default By Underwriters. If any Underwriter or Underwriters
shall default in its or their obligations to purchase shares of Firm Stock
hereunder on the Closing Date and the aggregate number of shares of Firm Stock
which such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total number of shares which the Underwriters are
obligated to purchase at the Closing Date, the other Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder,
to purchase the shares of Firm Stock which such defaulting Underwriter or
Underwriters agreed but failed to purchase. If any Underwriter or
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Underwriters shall so default and the aggregate number of shares of Firm Stock
with respect to which such default or defaults occur is more than 10% of the
total number of shares underwritten and arrangements satisfactory to the
Representatives and the Company for the purchase of such shares of Firm Stock
by other persons are not made within 48 hours after such default, this
Agreement shall terminate.
If the remaining Underwriters or substituted underwriters are
required hereby or agree to take up all or part of the shares of Firm Stock of
a defaulting Underwriter or Underwriters as provided in this Section 11, (i)
the Company shall have the right to postpone the Closing Date for a period of
not more than five full business days, in order that the Company may effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees promptly to file any amendments to the Registration Statement or
supplements to the Prospectus which may thereby be made necessary, and (ii) the
respective numbers of shares of Firm Stock to be purchased by the remaining
Underwriters or substituted underwriters shall be taken as the basis of their
underwriting obligation for all purposes of this Agreement. Nothing herein
contained shall relieve any defaulting Underwriter of its liability to the
Company or the Underwriters for damages occasioned by its default hereunder.
Any termination of this Agreement pursuant to this Section 11 shall be without
liability on the part of any non-defaulting Underwriter or the Company, except
for expenses to be paid or reimbursed pursuant to Section 5 and except for the
provisions of Section 6.
12. Default By the Company. If the Company shall fail at the
Closing Date to sell and deliver the number of shares of Stock which it is
obligated to sell hereunder, then this Agreement shall terminate without any
liability on the part of any non-defaulting party.
No action taken pursuant to this Section shall relieve the
Company so defaulting from liability, if any, in respect of such default.
13. Notices. All communications hereunder shall be in writing
and, if sent to the Underwriters shall be mailed, delivered or telegraphed and
confirmed to you, as their Representatives c/o Morgan Xxxxxxx & Co.
Incorporated at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: [ ],
except that notices given to an Underwriter pursuant to Section 6 hereof shall
be sent to such Underwriter at the address provided to the Representatives or,
if sent to the Company, shall be mailed, delivered or telegraphed and confirmed
c/o Lomak Petroleum, Inc., 000 Xxxxxxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxxxxx, President and Chief Executive Officer.
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14. Successors. This Agreement shall inure to the benefit of
and be binding upon the several Underwriters, the Company and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right,
remedy or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations,
warranties, covenants, agreements and indemnities of the Company contained in
this Agreement shall also be for the benefit of the person or persons, if any,
who control any Underwriter or Underwriters within the meaning of Section 15 of
the Act, and the indemnities of the several Underwriters shall also be for the
benefit of each director of the Company, each of its officers who has signed
the Registration Statement and the person or persons, if any, who control the
Company within the meaning of Section 15 of the Act.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS. The Company hereby consents to personal
jurisdiction in the State of New York and voluntarily submits to the
jurisdiction of the courts of such state, including the federal district courts
located in such state, in any proceeding with respect to this Agreement.
16. Counterparts. This Agreement may be executed by one or more
parties hereto in any number of counterparts each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
17. Authority of the Representatives. In connection with this
Agreement, the Representatives will act for and on behalf of the several
Underwriters, and any action taken under this Agreement by the Representatives
jointly or by Xxxxxx Xxxxxxx & Co. Incorporated, as representative of the
several Underwriters, will be binding on all the Underwriters.
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If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter and your acceptance shall constitute a binding agreement
between the Company and each of the Several Underwriters.
Very truly yours,
LOMAK PETROLEUM, INC.
By________________________________
President
Accepted and delivered,
as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
X.X. XXXXXXX & SONS, INC.
XXXXXXXX & COMPANY SECURITIES, INC.
Acting on their own behalf and as
Representatives of the several Underwriters
referred to in the foregoing Agreement.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By________________________________________________
Authorized Signature
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SCHEDULE A
Number of
Shares of
Stock to be
Name Purchased
---- -------------
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
X.X. XXXXXXX & SONS, INC.
XXXXXXXX & COMPANY SECURITIES, INC.
____________
Total . . . . . . . . . . . . . . . . . . . . . . . . . 4,000,000
=========
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EXHIBIT A
4,000,000 Shares
LOMAK PETROLEUM, INC.
Common Stock
PRICING AGREEMENT
________ __, 1997
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
X.X. XXXXXXX & SONS, INC.
XXXXXXXX & COMPANY SECURITIES, INC.
As Representatives of the several Underwriters
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement, dated ________
__, 1997 (the "Underwriting Agreement"), relating to the purchase by the
several Underwriters named in Schedule A thereto, for whom Xxxxxx Xxxxxxx & Co.
Incorporated, PaineWebber Incorporated, Xxxxx Xxxxxx Inc., X.X. Xxxxxxx & Sons,
Inc. and XxXxxxxx & Company Securities, Inc. are acting as representatives (the
"Representatives"), of the above shares of common stock (the "Common Stock") of
Lomak Petroleum, Inc. (the "Company").
Pursuant to Section 3 of the Underwriting Agreement, the Company
agrees with each underwriter as follows:
1. The initial public offering price per share for the Stock,
determined as provided in Section 3, shall be $_______________.
2. The purchase price per share for the Stock to be paid by the
several Underwriters shall be $______________.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
LOMAK PETROLEUM, INC.
By________________________________
President
Accepted and delivered,
as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
X.X. XXXXXXX & SONS, INC.
XXXXXXXX & COMPANY SECURITIES, INC.
Acting on their own behalf and as
Representatives of the several Underwriters
referred to in the foregoing Agreement.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By________________________________________________
Authorized Signature
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