EXHIBIT 1
4,000,000 Shares
Willbros Group, Inc.
Common Stock
UNDERWRITING AGREEMENT
, 2002
----------------
CIBC World Markets Corp.
Credit Lyonnais Securities (USA) Inc.
X.X. Xxxxxxxx & Co.
Xxxxx Securities, Inc.
Xxxxxx Xxxxxx & Company, Inc.
c/o CIBC World Markets Corp.
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several
Underwriters named on
Schedule I attached hereto.
Ladies and Gentlemen:
Willbros Group, Inc., a company organized under the laws
of the Republic of Panama (the "Company") and the stockholders listed on
Schedule I to this Agreement (the "Selling Stockholders"), propose, subject to
the terms and conditions contained herein, to sell to you and the other
underwriters named on Schedule I to this Agreement (the "Underwriters"), for
whom you are acting as Representatives (the "Representatives"), an aggregate of
4,000,000 shares (the "Firm Shares") of the Company's Common Stock, $0.05 par
value (the "Common Stock"). Of the 4,000,000 Firm Shares, 3,200,000 are to be
issued and sold by the Company and 800,000 are to be sold by the Selling
Stockholders. The respective amounts of the Firm Shares to be purchased by each
of the several Underwriters are set forth opposite their names on Schedule I
hereto. In addition, the Company and some of the Selling Stockholders propose to
grant to the Underwriters an option to purchase up to an additional 415,000
shares and 185,000 shares, respectively, (the "Option Shares") of Common Stock
from them for the purpose of covering over-allotments in connection with the
sale of the Firm Shares. The Firm Shares and the Option Shares are together
called the "Shares."
1. Sale and Purchase of the Shares.
On the basis of the representations, warranties and
agreements contained in, and subject to the terms and conditions of, this
Agreement:
(a) The Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at a price of $_____ per
share (the "Initial Price"), the number of Firm Shares set forth
opposite the name of such Underwriter under the column "Number of
Firm Shares to be Purchased from the Company" on Schedule I to this
Agreement, subject to adjustment in accordance with Section 11
hereof. The Selling Stockholders agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Selling Stockholders, at the
Initial Price, the number of Firm Shares set forth opposite the
name of such Underwriter under the column "Number of Firm Shares to
be Purchased from the Selling Stockholders" on Schedule I to this
Agreement, subject to adjustment in accordance with Section 11
hereof.
(b) The Company and the Selling Stockholders grant to the
several Underwriters an option to purchase, severally and not
jointly, all or any part of the Option Shares at the Initial Price.
The number of Option Shares to be purchased by each Underwriter
shall be the same percentage (adjusted by the Representatives to
eliminate fractions) of the total number of Option Shares to be
purchased by the Underwriters as such Underwriter is purchasing of
the Firm Shares. Such option may be exercised only to cover
over-allotments in the sales of the Firm Shares by the Underwriters
and may be exercised in whole or in part at any time on or before
12:00 noon, New York City time, on the business day before the Firm
Shares Closing Date (as defined below), and from time to time
thereafter within 30 days after the date of this Agreement, in each
case upon written, facsimile or telegraphic notice, or verbal or
telephonic notice confirmed by written, facsimile or telegraphic
notice, by the Representatives to the Company no later than 12:00
noon, New York City time, on the business day before the Firm
Shares Closing Date or at least two business days before the Option
Shares Closing Date (as defined below), as the case may be, setting
forth the number of Option Shares to be purchased and the time and
date (if other than the Firm Shares Closing Date) of such purchase.
2. Delivery and Payment. Payment of the purchase price
for, and delivery of certificate for, the Firm Shares shall be made at the
offices of CIBC World Markets Corp., Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 10:00 a.m., New York City time, on the third business day
following the date of this Agreement or at such time on such other date, not
later than ten (10) business days after the date of this Agreement, as shall be
agreed upon by the Company and the Representatives (such time and date of
delivery and payment are called the "Firm Shares Closing Date").
In addition, in the event that any or all of the Option
Shares are purchased by the Underwriters, payment of the purchase price, and
delivery of the certificates, for such Option Shares shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Representatives and the Company, on each date of delivery as specified in the
notice from the
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Representatives to the Company (such time and date of delivery and payment are
called the "Option Shares Closing Date"). The Firm Shares Closing Date and the
Option Shares Closing Date are called, individually, a "Closing Date" and,
together, the "Closing Dates."
Payment shall be made to the Company and the Selling
Stockholders by wire transfer of immediately available funds or by certified or
official bank check or checks payable in New York Clearing House (same day)
funds drawn to the order of the Company for the shares issued and sold by the
Company and to the Selling Stockholders for the shares purchased from the
Selling Stockholders, against delivery of the respective certificates to the
Representatives for the respective accounts of the Underwriters of certificates
for the Shares to be purchased by them.
Certificates evidencing the Shares shall be registered in
such names and shall be in such denominations as the Representatives shall
request at least two full business days before the Firm Shares Closing Date or,
in the case of Option Shares, on the day of notice of exercise of the option as
described in Section l(b) and shall be delivered by or on behalf of the Company
to the Representatives through the facilities of the Depository Trust Company
("DTC") for the account of such Underwriter. The Company will cause the
certificates representing the Shares to be made available for checking and
packaging, at such place as is designated by the Representatives, on the full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
3. Registration Statement and Prospectus; Public Offering.
The Company has prepared and filed in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the published
rules and regulations thereunder (the "Rules") adopted by the Securities and
Exchange Commission (the "Commission") a Registration Statement (as hereinafter
defined) on Form S-3 (No. 333-83150), including a preliminary prospectus
relating to the Shares, and such amendments thereof as may have been required to
the date of this Agreement. Copies of such Registration Statement (including all
amendments thereof) and of the related Preliminary Prospectus (as hereinafter
defined) have heretofore been delivered by the Company to you. The term
"Preliminary Prospectus" means any preliminary prospectus (as described in Rule
430 of the Rules) included at any time as a part of the Registration Statement
or filed with the Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) of the Rules. The term "Registration
Statement" as used in this Agreement means the initial registration statement
(including all exhibits, financial schedules and information deemed to be a part
of the Registration Statement through incorporation by reference or otherwise),
as amended at the time and on the date it becomes effective (the "Effective
Date") including the information (if any) deemed to be part thereof at the time
of effectiveness pursuant to Rule 430A of the Rules. If the Company has filed an
abbreviated registration statement to register additional Shares pursuant to
Rule 462(b) under the Rules (the "462(b) Registration Statement") then any
reference herein to the Registration Statement shall also be deemed to include
such 462(b) Registration Statement. The term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement at the time of effectiveness or, if Rule 430A of the Rules is relied
on, the term Prospectus shall also include the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules. Reference made herein to any
Preliminary Prospectus or to the Prospectus shall be
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deemed to refer to and include any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and any reference
to any amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any document filed under the United
States Securities Exchange Act of 1934, as amended (the "Exchange Act") after
the date of such Preliminary Prospectus or the Prospectus, as the case may be,
and incorporated by reference in such Preliminary Prospectus or the Prospectus,
as the case may be.
The Company and the Selling Stockholders understand that
the Underwriters propose to make a public offering of the Shares, as set forth
in and pursuant to the Prospectus, as soon after the Effective Date and the date
of this Agreement as the Representatives deem advisable. The Company and the
Selling Stockholders hereby confirm that the Underwriters and dealers have been
authorized to distribute or cause to be distributed each Preliminary Prospectus
and are authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company furnishes amendments or supplements thereto to the
Underwriters).
4. Representations and Warranties of the Company. The
Company hereby represents and warrants to each Underwriter as follows:
(a) On the Effective Date, the Registration Statement
complied, and on the date of the Prospectus, the date any
post-effective amendment to the Registration Statement becomes
effective, the date any supplement or amendment to the Prospectus
is filed with the Commission and each Closing Date, the
Registration Statement and the Prospectus (and any amendment
thereof or supplement thereto) will comply, in all material
respects, with the applicable provisions of the Securities Act, the
Rules and the Exchange Act, and the rules and regulations of the
Commission thereunder. The Registration Statement did not, as of
the Effective Date, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, not misleading;
and on the Effective Date and the other dates referred to above
neither the Registration Statement nor the Prospectus, nor any
amendment thereof or supplement thereto, will contain any untrue
statement of a material fact or will omit to state any material
fact required to be stated therein or necessary in order to make
the statements therein, not misleading. When any related
preliminary prospectus was first filed with the Commission (whether
filed as part of the Registration Statement or any amendment
thereto or pursuant to Rule 424(a) of the Rules) and when any
amendment thereof or supplement thereto was first filed with the
Commission, such preliminary prospectus as amended or supplemented
complied in all material respects with the applicable provisions of
the Securities Act and the Rules and did not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. If applicable, each Preliminary
Prospectus and the Prospectus delivered to the Underwriters for use
in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by
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Regulation S-T. If Rule 434 is used, the Company will comply with
the requirements of Rule 434 and the Prospectus shall not be
"materially different," as such term is used in Rule 434, from the
Prospectus included in the Registration Statement at the time it
became effective. Notwithstanding the foregoing, none of the
representations and warranties in this paragraph 4(a) shall apply
to statements in, or omissions from, the Registration Statement or
the Prospectus made in reliance upon, and in conformity with,
information herein or otherwise furnished in writing by the
Representatives on behalf of the several Underwriters for use in
the Registration Statement or the Prospectus. With respect to the
preceding sentence, the Company acknowledges that the only
information furnished in writing by the Representatives on behalf
of the several Underwriters for use in the Registration Statement
or the Prospectus is the statements contained in the fourth, tenth
and fourteenth paragraphs under the caption "Underwriting" in the
Prospectus.
(b) The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the
effectiveness of the Registration Statement or suspending or
preventing the use of the Prospectus has been issued and no
proceedings for that purpose have been instituted or are threatened
under the Securities Act. Any required filing of the Prospectus and
any supplement thereto pursuant to Rule 424(b) of the Rules has
been or will be made in the manner and within the time period
required by such Rule 424(b).
(c) The documents incorporated by reference in the
Registration Statement and the Prospectus, at the time they became
effective or were filed with the Commission as the case may be,
complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and, when read
together and with the other information in the Registration
Statement and the Prospectus, do not contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary in order 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 in the Registration Statement and the
Prospectus, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and the 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 necessary to make the statements therein, not misleading.
(d) The financial statements of the Company (including all
notes and schedules thereto) included or incorporated by reference
in the Registration Statement and Prospectus present fairly the
financial position, the results of operations, the statements of
cash flows and the statements of stockholders' equity and the other
information purported to be shown therein of the Company at the
respective dates and for the respective periods to which they
apply; and such financial statements and related schedules and
notes have been prepared in conformity with generally accepted
accounting principles, consistently applied throughout the periods
involved, and all adjustments
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necessary for a fair presentation of the results for such periods
have been made. The summary and selected financial data included in
the Prospectus present fairly the information shown therein as at
the respective dates and for the respective periods specified and
the summary and selected financial data have been presented on a
basis consistent with the consolidated financial statements so set
forth in the Prospectus and other financial information.
(e) KPMG LLP, whose reports are filed with the Commission
as a part of the Registration Statement, are and, during the
periods covered by their reports, were independent public
accountants as required by the Securities Act and the Rules.
(f) The Company and each of its subsidiaries and each
other entity controlled directly or indirectly by the Company
(individually, "Subsidiary" and collectively, "Subsidiaries") is
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization. The Company and each
Subsidiary is duly qualified to do business and is in good standing
as a foreign corporation in each jurisdiction in which the nature
of the business conducted by it or location of the assets or
properties owned, leased or licensed by it requires such
qualification, except for such jurisdictions where the failure to
so qualify would not have a material adverse effect on the assets
or properties, business, results of operations or financial
condition of the Company (a "Material Adverse Effect"). The Company
and each of its Subsidiaries has all requisite corporate power and
authority, and all necessary authorizations, approvals, consents,
orders, licenses, certificates and permits of and from all
governmental or regulatory bodies or any other person or entity
(collectively, the "Permits"), to own, lease and license its assets
and properties and conduct its business, all of which are valid and
in full force and effect, as described in the Registration
Statement and the Prospectus, except where the lack of such
Permits, individually or in the aggregate, would not have a
Material Adverse Effect. The Company and each of its Subsidiaries
has fulfilled and performed in all material respects all of its
material obligations with respect to such Permits and no event has
occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the Company thereunder. Except as may
be required under the Securities Act and state and foreign Blue Sky
laws, no other Permits are required to enter into, deliver and
perform this Agreement and to issue and sell the Shares.
(g) The Company and each of its Subsidiaries owns or
possesses adequate and enforceable rights to use all trademarks,
trademark applications, trade names, service marks, copyrights,
copyright applications, licenses, know-how and other similar rights
and proprietary knowledge (collectively, "Intangibles") described
in the Prospectus as being owned by it necessary for the conduct of
its business. Neither the Company nor any of its Subsidiaries has
received any notice of, or is aware of, any infringement of or
conflict with asserted rights of others with respect to any
Intangibles.
(h) The Company and each of its Subsidiaries has good and
marketable title
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in fee simple to all items of real property and good and marketable
title to all personal property described in the Prospectuses as
being owned by it. Any real property and buildings described in the
Prospectuses as being held under lease by the Company and each of
its Subsidiaries is held by it under valid, existing and
enforceable leases, free and clear of all liens, encumbrances,
claims, security interests and defects, except such as are
described in the Registration Statement and the Prospectus or would
not have a Material Adverse Effect.
(i) There are no litigation or governmental proceedings to
which the Company or any of its Subsidiaries is subject or which is
pending or, to the knowledge of the Company, threatened, against
the Company or any of its Subsidiaries, which, individually or in
the aggregate, might have a Material Adverse Effect, affect the
consummation of this Agreement or which is required to be disclosed
in the Registration Statement and the Prospectus that is not so
disclosed.
(j) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as described therein, (a) there has not been any
material adverse change with regard to the assets or properties,
business, results of operations or financial condition of the
Company; (b) neither the Company nor any of its Subsidiaries has
sustained any loss or interference with its assets, businesses or
properties (whether owned or leased) from fire, explosion,
earthquake, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or any court or legislative or
other governmental action, order or decree which would have a
Material Adverse Effect; and (c) since the date of the latest
balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus, except as reflected
therein, neither the Company nor any of its Subsidiaries has (i)
issued any securities or incurred any liability or obligation,
direct or contingent, for borrowed money, except such liabilities
or obligations incurred in the ordinary course of business, (ii)
entered into any transaction not in the ordinary course of business
or (iii) declared or paid any dividend or made any distribution on
any shares of its stock or redeemed, purchased or otherwise
acquired or agreed to redeem, purchase or otherwise acquire any
shares of its stock.
(k) There is no document, contract or other agreement of a
character required to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required by the
Securities Act or Rules. Each description of a contract, document
or other agreement in the Registration Statement and the Prospectus
accurately reflects in all respects the terms of the underlying
document, contract or agreement. Each agreement described in the
Registration Statement and Prospectus or listed in the Exhibits to
the Registration Statement or incorporated by reference is in full
force and effect and is valid and enforceable by and against the
Company or the Subsidiary, as the case may be, in accordance with
its terms. Neither the Company nor any Subsidiary, if such
Subsidiary is a party, nor to the Company's knowledge any other
party, is in default in the observance or performance of any term
or obligation to be performed by it under any such agreement,
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and no event has occurred which with notice or lapse of time or
both would constitute such a default, in any such case which
default or event, individually or in the aggregate, would have a
Material Adverse Effect. No default exists, and no event has
occurred which with notice or lapse of time or both would
constitute a default, in the due performance and observance of any
term, covenant or condition, by the Company or any Subsidiary, if
such Subsidiary is a party thereto, of any other agreement or
instrument to which the Company or any Subsidiary is a party or by
which the Company, any Subsidiary or their respective properties or
business may be bound or affected which default or event,
individually or in the aggregate, would have a Material Adverse
Effect.
(l) Neither the Company nor any of its Subsidiaries is in
violation of any term or provision of its charter or by-laws or of
any franchise, license, permit, judgment, decree, order, statute,
rule or regulation, where the consequences of such violation,
individually or in the aggregate, would have a Material Adverse
Effect.
(m) Neither the execution, delivery and performance of
this Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation,
the issuance and sale by the Company of the Shares) will give rise
to a right to terminate or accelerate the due date of any payment
due under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or an event which with
notice or lapse of time or both would constitute a default) under,
or require any consent or waiver under, or result in the execution
or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or any of its Subsidiaries
pursuant to the terms of, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which either the Company or any of
its Subsidiaries or any of their properties or businesses is bound,
or any franchise, license, permit, judgment, decree, order,
statute, rule or regulation applicable to the Company or any of its
Subsidiaries or violate any provision of the charter or by-laws of
the Company or any of its Subsidiaries, except for such consents or
waivers which have already been obtained and are in full force and
effect.
(n) The Company has authorized and outstanding capital
stock as set forth under the caption "Capitalization" in the
Prospectus. The certificates evidencing the Shares are in due and
proper legal form and have been duly authorized for issuance by the
Company. All of the issued and outstanding shares of Common Stock
have been duly and validly issued and are fully paid and
nonassessable. There are no statutory preemptive or other similar
rights to subscribe for or to purchase or acquire any shares of
Common Stock of the Company or any of its Subsidiaries or any such
rights pursuant to its Certificate of Incorporation or by-laws or
any agreement or instrument to or by which the Company or any of
its Subsidiaries is a party or bound. The Shares, when issued and
sold pursuant to this Agreement, will be duly and validly issued,
fully paid and nonassessable and none of them will be issued in
violation of any preemptive or other similar right. Except as
disclosed in the Registration Statement and the Prospectus, there
is no
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outstanding option, warrant or other right calling for the issuance
of, and there is no commitment, plan or arrangement to issue, any
share of stock of the Company or any of its Subsidiaries or any
security convertible into, or exercisable or exchangeable for, such
stock. The Common Stock and the Shares conform in all material
respects to all statements in relation thereto contained in the
Registration Statement and the Prospectus. All outstanding shares
of capital stock of each Subsidiary have been duly authorized and
validly issued, and are fully paid and nonassessable and are owned
directly by the Company or by another wholly-owned subsidiary of
the Company free and clear of any security interests, liens,
encumbrances, equities or claims, other than those described in the
Prospectus.
(o) Other than those holders of Common Stock to whom
notice has been given under Section 2.2 of that certain
Registration Rights Agreement, dated April 9, 1992, by and among
the Company and Xxxxxxx Holding Construction, Inc., Yorktown Energy
Partners, L.P., Concord Partners II, L.P., Concord Partners Japan
Limited and the individuals and trusts set forth on the signature
pages thereto, no holder of any security of the Company has the
right to have any security owned by such holder included in the
Registration Statement or to demand registration of any security
owned by such holder during the period ending 90 days after the
date of this Agreement. Each director and executive officer of the
Company, each stockholder listed on Schedule I hereto and each
Subsidiary which has shares of Common Stock pledged to it by
employees or other persons has delivered to the Representatives his
enforceable written lock-up agreement in the form attached to this
Agreement ("Lock-Up Agreement").
(p) All necessary corporate action has been duly and
validly taken by the Company to authorize the execution, delivery
and performance of this Agreement and the issuance and sale of the
Shares by the Company. This Agreement has been duly and validly
authorized, executed and delivered by the Company and constitute
and will constitute legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles.
(q) Neither the Company nor any of its Subsidiaries are
involved in any labor dispute nor, to the knowledge of the Company,
is any such dispute threatened, which dispute would have a Material
Adverse Effect. The Company is not aware of any existing or
imminent labor disturbance by the employees of any of its principal
suppliers or contractors which would have a Material Adverse
Effect. The Company is not aware of any threatened or pending
litigation between the Company or any of its Subsidiaries and any
of its executive officers which, if adversely determined, could
have a Material Adverse Effect and has no reason to believe that
such officers, if any, will not remain in the employment of the
Company.
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(r) No transaction has occurred between or among the
Company and any of its officers, directors or five percent
shareholders or any affiliate or affiliates of any such officer,
director or five percent shareholder that is required to be
described in and is not described in the Registration Statement and
the Prospectus.
(s) The Company has not taken, nor will it take, directly
or indirectly, any action designed to or which might reasonably be
expected to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of the Common Stock to facilitate the
sale or resale of any of the Shares.
(t) The Company and each of its Subsidiaries has filed all
Federal, state, local and foreign tax returns which are required to
be filed through the date hereof, which returns are true and
correct in all material respects or has received extensions
thereof, and has paid all taxes shown on such returns and all
assessments received by it to the extent that the same are material
and have become due. There are no tax audits or investigations
pending, which if adversely determined would have a Material
Adverse Effect; nor are there any material proposed additional tax
assessments against the Company or any of its Subsidiaries.
(u) The Shares comply with the additional listing
requirements of the New York Stock Exchange (the "NYSE") and have
been duly authorized for listing on the NYSE, subject only to
notice of issuance at or prior to the time of issuance.
(v) The Company has taken no action designed to, or likely
to have the effect of, terminating the registration of the Common
Stock under the Exchange Act or the quotation of the Common Stock
on the NYSE, nor has the Company received any notification that the
Commission or the NYSE is contemplating terminating such
registration or quotation.
(w) The consolidated books, records and accounts of the
Company accurately and fairly reflect, in reasonable detail, the
transactions in, and dispositions of, the assets of, and the
results of operations of, the Company and each of its consolidated
Subsidiaries. The Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation
of financial statements in accordance with generally accepted
accounting principles and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's
general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(x) The Company and its Subsidiaries are insured by
insurers of recognized
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financial responsibility against such losses and risks and in such
amounts as are customary in the businesses in which they are
engaged or propose to engage after giving effect to the
transactions described in the Prospectus; all policies of insurance
and fidelity or surety bonds insuring the Company or any of its
Subsidiaries or the Company's or its Subsidiaries' respective
businesses, assets, employees, officers and directors are in full
force and effect; the Company and each of its Subsidiaries are in
compliance with the terms of such policies and instruments in all
material respects; and neither the Company nor any Subsidiary of
the Company has reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a
Material Adverse Effect. Neither the Company nor any Subsidiary has
not been denied any insurance coverage that it has sought or for
which it has applied.
(y) Each approval, consent, order, authorization,
designation, declaration or filing of, by or with any regulatory,
administrative or other governmental body necessary in connection
with the execution and delivery by the Company of this Agreement
and the consummation of the transactions herein contemplated
required to be obtained or performed by the Company (except such
additional steps as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") or may be necessary to
qualify the Shares for public offering by the Underwriters under
the state securities or Blue Sky laws) has been obtained or made
and is in full force and effect.
(z) There are no affiliations with the NASD among the
Company's officers, directors or, to the best of the knowledge of
the Company, any five percent or greater stockholder of the
Company, except as set forth in the Registration Statement or
otherwise disclosed in writing to the Representatives.
(aa) (i) Each of the Company and its Subsidiaries is in
compliance in all material respects with all rules, laws and
regulation relating to the use, treatment, storage and disposal of
toxic substances and protection of health or the environment
("Environmental Law") which are applicable to its business; (ii)
neither the Company nor any of its Subsidiaries has received any
notice from any governmental authority or third party of an
asserted claim under Environmental Laws; (iii) each of the Company
and its Subsidiaries has received all permits, licenses or other
approvals required of it under applicable Environmental Laws to
conduct its business and is in compliance with all terms and
conditions of any such permit, license or approval; (iv) to the
Company's knowledge, no facts currently exist that will require the
Company or its Subsidiaries to make future material capital
expenditures to comply with Environmental Laws; and (v) no property
which is or has been owned, leased or occupied by the Company or
its Subsidiaries has been designated as a Superfund site pursuant
to the Comprehensive Environmental Response, Compensation of
Liability Act of 1980, as amended (42 U.S.C. Section 9601, et.
seq.) or otherwise designated as a contaminated site under
applicable state or local law. Neither the Company nor any of its
Subsidiaries has been named as a "potentially responsible party"
under the CER, CLA 1980.
(bb) In the ordinary course of its business, the Company
periodically reviews
-11-
the effect of Environmental Laws on the business, operations and
properties of the Company and its Subsidiaries, in the course of
which the Company identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect.
(cc) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of proceeds
thereof as described in the Prospectus, will not be an "investment
company" within the meaning of the Investment Company Act of 1940,
as amended (the "Investment Company Act").
(dd) Neither the Company, any of its Subsidiaries nor any
other person associated with or acting on behalf of the Company or
its Subsidiaries including, without limitation, any director,
officer, agent or employee of the Company or its Subsidiaries has,
directly or indirectly, while acting on behalf of the Company or
any of its Subsidiaries (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses
relating to political activity; (ii) made any unlawful payment to
foreign or domestic government officials or employees or to foreign
or domestic political parties or campaigns from corporate funds;
(iii) violated any provision of the Foreign Corrupt Practices Act
of 1977, as amended; or (iv) made any other unlawful payment.
(ee) None of the Company or any of its Subsidiaries is an
"enemy" or an "ally of the enemy" within the meaning of Section 2
of the U.S. Trading with the Enemy Act, as amended; and none of the
Company or any of its Subsidiaries is in violation of, and the
Company's use of the proceeds from the sale of the Shares will not
violate, the U.S. Trading with the Enemy Act, as amended, or any
executive orders, proclamations or regulations issued pursuant
thereto, including, without limitation, regulations administered by
the Office of Foreign Assets Control of the U.S. Department of the
Treasury (31 C.F.R., Subtitle B, Chapter V, as amended).
(ff) The Company is not treated as a "controlled foreign
corporation" for U.S. federal income tax purposes under Section 957
of the U.S. Internal Revenue Code of 1986, as amended.
5. Representations and Warranties of the Selling
Stockholders. Each of the Selling Stockholders hereby represents and warrants to
each Underwriter as follows:
(a) The Selling Stockholder has caused the number of
Shares to be sold by such Selling Stockholder hereunder to be
delivered to Mellon Investor Services, LLC (the "Custodian"), such
shares to be held in custody by the Custodian for delivery,
pursuant to the provisions of this Agreement and an agreement dated
____________ among the Custodian and the Selling Stockholders (the
"Custody Agreement").
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(b) The Selling Stockholder has granted an irrevocable
power of attorney (the "Power of Attorney") to the person named
therein, on behalf of the Selling Stockholder, to execute and
deliver this Agreement and any other document necessary or
desirable in connection with the transactions contemplated hereby
and to deliver the shares to be sold by the Selling Stockholder
pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of
Attorney and the Lock-Up Agreement have each been duly authorized,
executed and delivered by or on behalf of the Selling Stockholder
and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes the valid and legally binding
agreement of the Selling Stockholder, enforceable against the
Selling Stockholder in accordance with its terms.
(d) The execution and delivery by the Selling Stockholder
of this Agreement and the performance by the Selling Stockholder of
its obligations under this Agreement (i) will not contravene any
provision of applicable law, statute, regulation or filing or any
agreement or other instrument binding upon the Selling Stockholder
or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Selling Stockholder, (ii)
does not require any consent, approval, authorization or order of
or registration or filing with any court or governmental agency or
body having jurisdiction over it, except such as may be required by
the Blue Sky laws of the various states in connection with the
offer and sale of the Shares which have been or will be effected in
accordance with this Agreement, (iii) does not and will not violate
any statute, law, regulation or filing or judgment, injunction,
order or decree applicable to the Selling Stockholder or (iv) will
not result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Selling Stockholder
pursuant to the terms of any agreement or instrument to which the
Selling Stockholder is a party or by which the Selling Stockholder
may be bound or to which any of the property or assets of the
Selling Stockholder is subject.
(e) The Selling Stockholder has, and on each Closing Date
will have, valid and marketable title to the Shares to be sold by
the Selling Stockholder free and clear of any lien, claim, security
interest or other encumbrance, including, without limitation, any
restriction on transfer, except as otherwise described in the
Registration Statement and Prospectus.
(f) The Selling Stockholder has, and on each Closing Date
will have, full legal right, power and authorization, and any
approval required by law, to sell, assign, transfer and deliver the
Shares to be sold by the Selling Stockholder in the manner provided
by this Agreement.
(g) Upon delivery of and payment for the Shares to be sold
by the Selling Stockholder pursuant to this Agreement, the several
Underwriters will receive valid and marketable title to such Shares
free and clear of any lien, claim, security interest or other
encumbrance.
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(h) All information relating to the Selling Stockholder
furnished in writing by the Selling Stockholder expressly for use
in the Registration Statement and Prospectus is, and on each
Closing Date will be, true, correct, and complete, and does not,
and on each Closing Date will not, contain any untrue statement of
a material fact or omit to state any material fact necessary to
make such information not misleading.
(i) The Selling Stockholder has reviewed the Registration
Statement and Prospectus and, although the Selling Stockholder has
not independently verified the accuracy or completeness of all the
information contained therein, nothing has come to the attention of
the Selling Stockholder that would lead the Selling Stockholder to
believe that (i) on the Effective Date, the Registration Statement
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein in order to
make the statements made therein not misleading and (ii) on the
Effective Date the Prospectus contained and, on each Closing Date
contains, no untrue statement of a material fact or omitted or
omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, misleading.
(j) The sale of Shares by the Selling Stockholder pursuant
to this Agreement is not prompted by the Selling Stockholder's
knowledge of any material information concerning the Company which
is not set forth in the Prospectus.
(k) The Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(l) The Selling Stockholder has no actual knowledge that
any representation or warranty of the Company set forth in Section
4 above is untrue or inaccurate in any material respect.
(m) The representations and warranties of the Selling
Stockholder in the Custody Agreement are and on each Closing Date
will be, true and correct.
6. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters under this Agreement are several and not joint.
The respective obligations of the Underwriters to purchase the Shares are
subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has
become effective shall have been received by the Representatives
and the Prospectus shall have been timely filed with the Commission
in accordance with Section 7(a) of this Agreement.
(b) No order preventing or suspending the use of any
preliminary prospectus or the Prospectus shall have been or shall
be in effect and no order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for
such purpose shall be pending before or threatened by the
Commission, and any requests for
-14-
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 satisfaction of the
Commission and the Representatives. If the Company has elected to
rely upon Rule 430A, Rule 430A 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) within the prescribed time period and the Company shall have
provided evidence satisfactory to the Underwriters 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. If the Company has elected to
rely upon Rule 434, a term sheet shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) within the prescribed
time period.
(c) The representations and warranties of the Company and
the Selling Stockholders contained in this Agreement and in the
certificates delivered pursuant to Section 6(d) shall be true and
correct when made and on and as of each Closing Date as if made on
such date. The Company and the Selling Stockholders shall have
performed all covenants and agreements and satisfied all the
conditions contained in this Agreement required to be performed or
satisfied by them at or before such Closing Date.
(d) The Representatives shall have received on each
Closing Date a certificate, addressed to the Representatives and
dated such Closing Date, of the chief executive or chief operating
officer and the chief financial officer or chief accounting officer
of the Company to the effect that (i) the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus and this Agreement and that the representations and
warranties of the Company in this Agreement are true and correct on
and as of such Closing Date with the same effect as if made on such
Closing Date and the Company has performed all covenants and
agreements and satisfied all conditions contained in this Agreement
required to be performed or satisfied by it at or prior to such
Closing Date, and (ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and to the best of
their knowledge, no proceedings for that purpose have been
instituted or are pending under the Securities Act.
(e) The Representatives shall have received on each
Closing Date a certificate, addressed to the Representatives and
dated such Closing Date, of the Selling Stockholders, to the effect
that the Selling Stockholders have carefully examined the
Registration Statement, the Prospectus and this Agreement and that
the representations and warranties of the Selling Stockholders in
this Agreement are true and correct on and as of such Closing Date
with the same effect as if made on such Closing Date and the
Selling Stockholders have performed all covenants and agreements
and satisfied all conditions contained in this Agreement required
to be performed or satisfied by it at or prior to such Closing
Date.
(f) The Representatives shall have received, at the time
this Agreement is executed and on each Closing Date a signed letter
from KPMG LLP addressed to the Representatives and dated,
respectively, the date of this Agreement and each such Closing
-15-
Date, in form and substance reasonably satisfactory to the
Representatives containing statements and information of the type
ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and
the Prospectus.
(g) The Representatives shall have received on each
Closing Date from Connor & Xxxxxxx, P.C., counsel for the Company,
an opinion, addressed to the Representatives and dated such Closing
Date, in form satisfactory to Xxxxxx & Xxxxxx L.L.P., counsel for
the Underwriters, and stating in effect that:
(A) The Common Stock and the Shares conform in all
material respects to the descriptions thereof contained in
the Registration Statement and the Prospectus.
(B) Neither the execution, delivery and
performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and
sale by the Company of the Shares) or any other agreement
or instrument entered into or to be entered into by the
Company in connection with the transactions contemplated
by the Registration Statement and the Prospectus will give
rise to a right to terminate or accelerate the due date of
any payment due under, or conflict with or result in the
breach of any term or provision of, or constitute a
default (or any event which with notice or lapse of time,
or both, would constitute a default) under, or require
consent or waiver under, or result in the execution or
imposition of any lien, charge, claim, security interest
or encumbrance upon any properties or assets of the
Company or any of its Subsidiaries pursuant to the terms
of any indenture, mortgage, deed trust, note or other
agreement or instrument of which such counsel is aware and
to which the Company or any of its Subsidiaries is a party
or by which either the Company or any of its Subsidiaries
or any of their assets or properties or businesses is
bound, or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation, domestic or
foreign, of which such counsel is aware or violate any
provision of the charter or by-laws of the Company or any
of its Subsidiaries.
(C) The Company is duly qualified to transact
business and in good standing as a foreign corporation in
each jurisdiction in which the character or location of
its assets or properties (owned, leased or licensed) or
the nature of its businesses makes such qualification
necessary, except for such jurisdictions where the failure
to so qualify, individually or in the aggregate, would not
have a Material Adverse Effect.
(D) To such counsel's knowledge, neither the
Company nor any of its Subsidiaries is in breach of, or in
default under (nor has any event occurred which with
notice, lapse of time, or both would constitute a breach
of, or default under), any license, indenture, mortgage,
deed of trust, bank loan or any other agreement or
instrument to which the Company or any of its Subsidiaries
is a party or by
-16-
which any of them or their respective properties may be
bound or affected or under any law, regulation or rule or
any decree, judgment or order applicable to the Company or
any of its Subsidiaries.
(E) No consent, approval, authorization, license,
registration, qualification or order of any court or
governmental agency or regulatory body is required for the
due authorization, execution, delivery or performance of
this Agreement by the Company or the consummation of the
transactions contemplated hereby or thereby, except such
as have been obtained under the Securities Act and such as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Shares by the several Underwriters.
(F) To such counsel's knowledge, there is no
litigation or governmental or other proceeding or
investigation, before any court or before or by any public
body or board pending or threatened against, or involving
the assets, properties or businesses of, the Company which
is required to be disclosed in the Registration Statement
and the Prospectus or which would have a Material Adverse
Effect.
(G) Accurate copies of all contracts and other
documents required to be filed as exhibits to, or
described in, the Registration Statement have been so
filed with the Commission or are fairly described in the
Registration Statement, as the case may be.
(H) The Registration Statement, all Preliminary
Prospectuses and the Prospectus and each amendment or
supplement thereto (except for the financial statements
and schedules and other financial and statistical data
included therein, as to which such counsel expresses no
opinion) comply as to form in all material respects with
the requirements of the Securities Act and the Rules and
the documents incorporated by reference in the
Registration Statement, all Preliminary Prospectuses and
the Prospectuses and any further amendment or supplement
to any such incorporated document made by the Company
(except for the financial statements and schedules and
other financial and statistical data included therein, as
to which such counsel expresses no opinion) when they
became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects
with the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder.
(I) The Registration Statement is effective under
the Securities Act, and to such counsel's knowledge no
stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings
for that purpose have been instituted or are threatened,
pending or contemplated. Any required filing of the
Prospectus and any supplement thereto pursuant to Rule
424(b) under the Securities Act has been made in the
manner and within the time period required
-17-
by such Rule 424(b).
(J) The Shares have been approved for listing on
the NYSE, subject only to notice of issuance at or prior
to the Closing Date.
(K) 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.
To the extent deemed advisable by such counsel, they may
rely as to matters of fact on certificates of responsible officers of the
Company and public officials and on the opinions of other counsel satisfactory
to the Representatives as to matters which are governed by laws other than the
laws of the State of New York and the Federal laws of the United States;
provided that such counsel shall state that in their opinion the Underwriters
and they are justified in relying on such other opinions. Copies of such
certificates and other opinions shall be furnished to the Representatives and
counsel for the Underwriters.
In addition, such counsel shall state that such counsel
has participated in conferences with
officers and other representatives of the Company, representatives of the
Representatives and representatives of the independent certified public
accountants of the Company, at which conferences the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus (except as specified
in the foregoing opinion), on the basis of the foregoing, no facts have come to
the attention of such counsel which lead such counsel to believe that (i) the
Registration Statement at the time it became effective (except with respect to
the financial statements and notes and schedules thereto and other financial
data, as to which such counsel need express no belief) 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 as amended or supplemented (except with respect to the
financial statements, notes and schedules thereto and other financial data, as
to which such counsel need make no statement) on the date thereof contained any
untrue statement of a material fact or omitted 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 or (ii) any document
incorporated by reference in the Prospectus or any further amendment or
supplement to any such incorporated document made by the Company, when they
became effective or were filed with the Commission, as the case may be,
contained, in the case of a registration statement which became effective under
the Securities Act, any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or, in the case of other documents which were
filed under the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(h) The Representatives shall have received on each
Closing Date from Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the
Company, an opinion, addressed to the Representatives and dated such
Closing Date, in form satisfactory to Xxxxxx & Xxxxxx L.L.P.,
-18-
counsel for the Underwriters, and stating in effect that:
(A) The Company has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the Republic of Panama, with all requisite
corporate power and authority to own, lease and license
its assets and properties and conduct its business as now
being conducted and as described in the Registration
Statement and the Prospectus and to enter into, deliver
and perform its obligations under this Agreement and to
issue and sell the Shares as herein contemplated; and to
such counsel's knowledge, no proceeding has been
instituted by any relevant regulatory authority in the
Republic of Panama for the dissolution or termination of
the corporate existence of the Company.
(B) Each of the Subsidiaries organized in Panama
(the "Panama Subsidiaries") has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the Republic of Panama, with all
requisite corporate power and authority to own, lease and
license its assets and properties and conduct its business
as now being conducted; and to such counsel's knowledge,
no proceeding has been instituted by any relevant
regulatory authority in the Republic of Panama for the
dissolution or termination of the corporate existence of
any such Subsidiary. Each Panama Subsidiary is duly
qualified to transact business and in good standing as a
foreign corporation in each jurisdiction in which the
character or location of its assets or properties (owned,
leased or licensed) or the nature of its businesses makes
such qualification necessary, except for such
jurisdictions where the failure to so qualify,
individually or in the aggregate, would not have a
Material Adverse Effect.
(C) All necessary corporate action has been duly
and validly taken by the Company to authorize the
execution, delivery and performance of this Agreement and
the issuance and sale of the Shares. This Agreement has
been duly and validly authorized, executed and delivered
by the Company and this Agreement constitutes the legal,
valid and binding obligation of the Company enforceable
against the Company in accordance with their respective
terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws
affecting the enforcement of creditors' rights generally
and by general equitable principles.
(D) The Company has authorized, issued and
outstanding capital stock as set forth in the Registration
Statement and the Prospectus under the caption
"Capitalization" as of the dates stated therein; the
certificates evidencing the Shares are in due and proper
legal form and have been duly authorized for issuance by
the Company; all of the outstanding shares of Common Stock
of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable and none of
them was issued in violation of any preemptive or other
similar right. The Shares when issued and sold pursuant to
this Agreement will be duly and validly issued,
outstanding, fully paid and nonassessable and
-19-
none of them will have been issued in violation of any
preemptive or other similar right. To such counsel's
knowledge, except as disclosed in the Registration
Statement and the Prospectus, there are no preemptive or
other rights to subscribe for or to purchase or any
restriction upon the voting or transfer of any securities
of the Company pursuant to the Company's Certificate of
Incorporation or by-laws or other governing documents or
any agreements or other instruments to which the Company
is a party or by which it is bound. To such counsel's
knowledge, except as disclosed in the Registration
Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance
of, and no commitment, plan or arrangement to issue, any
share of stock of the Company or any security convertible
into, exercisable for, or exchangeable for stock of the
Company. The issued and outstanding shares of capital
stock of each of the Company's Panama Subsidiaries have
been duly authorized and validly issued, are fully paid
and nonassessable and are owned by the Company or by
another wholly owned subsidiary of the Company, free and
clear of any perfected security interest or, to the
knowledge of such counsel, any other security interests,
liens, encumbrances, equities or claims, other than those
contained in the Registration Statement and the
Prospectus.
(E) To such counsel's knowledge, (A) the
businesses of the Company and the Panama Subsidiaries has
been conducted in all material respects in compliance with
all applicable laws, rules and regulations of the Republic
of Panama; and (B) the Company and the Panama Subsidiaries
are not in violation of or in conflict with any term or
provision of its charter or by-laws or other governing
documents or in violation of any franchise, license,
permit, judgment, decree, order, statute, rule or
regulation of the Republic of Panama where the
consequences of such violation, individually or in the
aggregate, would have a Material Adverse Effect.
(F) The execution, delivery and performance of
this Agreement by the Company and the consummation of the
transactions contemplated hereby (including, without
limitation, the issuance and sale of the Shares) will not
violate the charter or by-laws or other governing
documents of the Company or any applicable law, rule or
administrative regulation of or in the Republic of Panama
having jurisdiction over the Company or its Subsidiaries
or any of their properties, except for such violations as
would not, individually or in the aggregate, have a
Material Adverse Effect.
(G) No approval, authorization, consent or order
of or filing, registration or qualification with any
governmental agency or authority of or within the Republic
of Panama is required in connection with the execution and
delivery by the Company of this Agreement and the
consummation of the transactions contemplated hereby
(including, without limitation, the issuance and sale of
the Shares).
(H) The statements made in the Prospectus, to the
extent they
-20-
constitute summaries of the terms of the Company's charter
and by-laws (including without limitation the statements
contained under the caption "Description of Capital
Stock") or matters of Panamanian law (including without
limitation the statements contained under the captions
"Material United States Federal and Panamanian Income Tax
Consequences" and "Enforceability of Civil Liabilities
Under the Federal Securities Laws") are accurate in all
material respects and accurately present the information
called for with respect to such documents and matters.
(I) No stamp or other issuance or transfer taxes
or duties and no capital gains, income, withholding or
other taxes are payable by or on behalf of the
Underwriters to the Republic of Panama or to any political
subdivision or taxing authority thereof or therein in
connection with the purchase by the Underwriters of the
Shares or the resale thereof as contemplated by the
Prospectus; and all dividends and other distributions paid
on or in respect of the Shares to all persons whether
residents or non-residents of the Republic of Panama will
not be subject to Panamanian income, withholding or other
taxes.
(J) Under the laws of the Republic of Panama, the
submission by the Company to the jurisdiction of any
federal or state court sitting in the county of New York,
State of New York, U.S.A., the appointment by the Company
of CT Corporation System as its agent to receive service
of process in the United States and the designation of the
law of the State of New York, U.S.A., to apply to this
Agreement are binding upon the Company and, if properly
brought to the attention of the court in accordance with
the laws of the Republic of Panama, would be enforceable
in any judicial proceeding in the Republic of Panama.
(K) The indemnification and contribution
provisions set forth in Section 8 of this Agreement do not
contravene Panamanian law or public policy.
(L) The courts of the Republic of Panama will
observe and give effect to the choice of New York law as
the governing law of this Agreement.
(M) The courts of the Republic of Panama should
recognize and enforce a final judgment of a U.S. federal
or state court of competent jurisdiction sitting in the
County of New York in respect of any amount payable by the
Company under this Agreement or arising out of or based
upon the offering of Shares contemplated by this
Agreement, provided that such judgment conforms with the
requirements of the laws of the Republic of Panama for the
enforcement of foreign judgments, which require that (A)
such judgment be in respect of an action in personam, (B)
notice of the action shall have been served personally on
the defendant or its agent within the jurisdiction of the
court, (C) the obligation in respect of which the judgment
is given be lawful in the Republic of Panama, (D) the copy
of the judgment to be enforced in the Republic of Panama
shall have been authenticated by a consular officer of the
Republic of Panama, (E) the judgment being enforced not be
contrary to the public policy of the Republic of
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Panama, and (F) the court, the enforcement of the judgment
of which is being sought, grants reciprocity to the
enforcement of judgments of courts of the Republic of
Panama.
(N) assuming that the signatures of the parties
are authenticated by a notary public and the notary's
signature is acknowledged with the apostille of the Hague
Convention, and assuming that stamp taxes of U.S.$1.00 for
each U.S.$1,000 of the purchase price are paid prior to
filing this Agreement in evidence before a Panama court,
and assuming that the same is translated into the Spanish
language by a certified translator, this Agreement is in
proper legal form for enforcement against the Company in
the Republic of Panama and any Underwriter would be
entitled to xxx as plaintiff in the courts of the Republic
of Panama for the enforcement of its respective rights
against the Company pursuant to or arising under this
Agreement, and such access will not be subject to any
conditions which are not applicable to Panamanian persons.
(O) Neither the Company nor any of its assets is
entitled to immunity from suit, execution, attachment or
other legal process in the Republic of Panama by reason of
sovereign immunity or otherwise.
To the extent deemed advisable by such counsel, they may
rely as to matters of fact on certificates of responsible officers of the
Company and public officials; provided that such counsel shall state that in
their opinion the Underwriters and they are justified in relying on such other
opinions. Copies of such certificates and other opinions shall be furnished to
the Representatives and counsel for the Underwriters.
(i) The Representatives shall have received on each
Closing Date from one or more counsels for the Selling
Stockholders, an opinion, addressed to the Representatives and
dated such Closing Date in form satisfactory to Xxxxxx &
Xxxxxx counsel for the underwriter, and stating in effect
that:
(A) This Agreement, the Custody Agreement,
the Power of Attorney and the Lock-Up Agreement have
been duly and validly executed and delivered by or on
behalf of the Selling Stockholders.
(B) This Agreement, the Custody Agreement,
the Power of Attorney and the Lock-Up Agreement each
constitute the legal, valid and binding obligation of
the Selling Stockholders enforceable against the
Selling Stockholders in accordance with its terms
except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by
general equitable principles; and the Selling
Stockholders has full legal right and authority to
enter into this Agreement and to sell, transfer and
deliver in the manner provided in this Agreement, the
Shares to be sold by the Selling Stockholders
hereunder.
-22-
(C) The transfer and sale by the Selling
Stockholders of the Shares to be sold by the Selling
Stockholders as contemplated by this Agreement will
not conflict with, result in a breach of, or
constitute a default under any agreement or
instrument known to such counsel to which the Selling
Stockholders is a party or by which the Selling
Stockholders or any of its properties may be bound,
or any franchise, license, permit, judgment, decree,
order, statute, rule or regulation.
(D) Assuming the Underwriters are purchasers
in good faith without notice of any adverse claim,
upon payment for and delivery of the Shares in
accordance with this Agreement, the Underwriters will
acquire all of the rights of the Selling Stockholders
in the Shares and will also acquire their interest in
the Shares free of any adverse claim (within the
meaning of Section 8-302 of the Uniform Commercial
Code)
(E) No consent, approval, authorization,
license, certificate, permit or order of any court,
governmental or regulatory agency, authority or body
or financial institution is required in connection
with the performance of this Agreement by the Selling
Stockholders or the consummation of the transactions
contemplated hereby, including the delivery and sale
of the Shares to be delivered and sold by the Selling
Shareholder, except such as may be required under
state securities or blue sky laws in connection with
the purchase and distribution of the Shares by the
several Underwriters.
(F) To such counsel's knowledge, the
statements in the Prospectus under the caption
"Principal and Selling Stockholders," insofar as such
statements constitute a summary of the matters
referred to therein with respect to the Selling
Stockholders, present fairly the information called
for with respect to such matters.
To the extent deemed advisable by such counsel, they may rely
as to matters of fact on certificates of the Selling Stockholders and on the
opinions of other counsel satisfactory to the Representatives as to matters
which are governed by laws other than the laws of the States of New York or the
Federal laws of the United States; provided that such counsel shall state that
in their opinion the Underwriters and they are justified in relying on such
other opinions. Copies of such certificates and other opinions shall be
furnished to the Representatives and counsel for the Underwriters.
(j) The Representatives shall have received on each
Closing Date from Sidley Xxxxxx Xxxxx & Xxxx LLP, special United
States tax counsel to the Company, an opinion, addressed to the
Company, which states that such opinion may be relied upon by the
Underwriters, and dated such Closing Date, with reproduced copies
for each of the other Underwriters and in form satisfactory to
Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, stating that,
based on the limitations and qualifications set forth therein, the
statements in the Prospectus under the caption "Material United
States Federal and Panamanian Income Tax Consequences," insofar as
such statements constitute a summary
-23-
of matters of United States federal law, are accurate in all
material respects and accurately present the information called for
with respect to such matters.
(k) The Representatives shall have received on each
Closing Date opinions of other counsel with respect to each of the
Subsidiaries listed on Schedule II hereto, addressed to the
Underwriters, and dated such Closing Date, with reproduced copies
for each of the other Underwriters and in form satisfactory to
Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters.
(l) All proceedings taken in connection with the sale of
the Firm Shares and the Option Shares as herein contemplated shall
be reasonably satisfactory in form and substance to the
Representatives, and their counsel and the Underwriters shall have
received from Xxxxxx & Xxxxxx a favorable opinion, addressed to the
Representatives and dated such Closing Date, with respect to the
Shares, the Registration Statement and the Prospectus, and such
other related matters, as the Representatives may reasonably
request, and the Company shall have furnished to Xxxxxx & Xxxxxx
such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(m) The Representatives shall have received copies of the
Lock-up Agreements executed by each entity or person described in
Section 4(o).
(n) The Company and the Selling Stockholders shall have
furnished or caused to be furnished to the Representatives such
further certificates or documents as the Representatives shall have
reasonably requested.
7. Covenants of the Company.
(a) The Company covenants and agrees as follows:
(A) The Company will use its best efforts to cause
the Registration Statement, if not effective at the time
of execution of this Agreement, and any amendments
thereto, to become effective as promptly as possible. The
Company shall prepare the Prospectus in a form approved by
the Representatives and file such Prospectus pursuant to
Rule 424(b) under the Securities Act not later than the
Commission's close of business on the second business day
following the execution and delivery of this Agreement,
or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Securities Act.
(B) The Company shall promptly advise the
Representatives in writing (i) when any amendment to the
Registration Statement shall have become effective, (ii)
of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any
additional information, (iii) of the prevention or
suspension of the use of any preliminary prospectus or the
Prospectus or of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or the institution or threatening
of any proceeding for that purpose and (iv) of the receipt
by the Company of any
-24-
notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for
such purpose. The Company shall not file any amendment of
the Registration Statement or supplement to the Prospectus
or any document incorporated by reference in the
Registration Statement unless the Company has furnished
the Representatives a copy for its review prior to filing
and shall not file any such proposed amendment or
supplement to which the Representatives reasonably object.
The Company shall use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(C) If, at any time when a prospectus relating to
the Shares is required to be delivered under the
Securities Act and the Rules, any event occurs as a result
of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply
with the Securities Act or the Rules, the Company promptly
shall prepare and file with the Commission, subject to the
second sentence of paragraph (B) of this Section 7(a), an
amendment or supplement which shall correct such statement
or omission or an amendment which shall effect such
compliance.
(D) The Company shall make generally available to
its security holders and to the Representatives as soon as
practicable, but not later than 45 days after the end of
the 12-month period beginning at the end of the fiscal
quarter of the Company during which the Effective Date
occurs (or 90 days if such 12-month period coincides with
the Company's fiscal year), an earning statement (which
need not be audited) of the Company, covering such
12-month period, which shall satisfy the provisions of
Section 11(a) of the Securities Act or Rule 158 of the
Rules.
(E) The Company shall furnish to the
Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement
(including all exhibits thereto and amendments thereof)
and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and all amendments
thereof and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Securities
Act or the Rules, as many copies of any preliminary
prospectus and the Prospectus and any amendments thereof
and supplements thereto as the Representatives may
reasonably request. If applicable, the copies of the
Registration Statement and Prospectus and each amendment
and supplement thereto furnished to the Underwriters will
be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(F) The Company shall cooperate with the
Representatives and their counsel in endeavoring to
qualify the Shares for offer and sale in connection with
-25-
the offering under the laws of such jurisdictions as the
Representatives may designate and shall maintain such
qualifications in effect so long as required for the
distribution of the Shares; provided, however, that the
Company shall not be required in connection therewith, as
a condition thereof, to qualify as a foreign corporation
or to execute a general consent to service of process in
any jurisdiction or subject itself to taxation as doing
business in any jurisdiction.
(G) The Company, during the period when the
Prospectus is required to be delivered under the
Securities Act and the Rules or the Exchange Act, will
file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the
Exchange Act within the time periods required by the
Exchange Act and the regulations promulgated thereunder.
(H) Without the prior written consent of CIBC
World Markets Corp., for a period of 90 days after the
date of this Agreement, the Company and each of its
individual directors and executive officers shall not
issue, sell or register with the Commission (other than on
Form S-8 or on any successor form), or otherwise dispose
of, directly or indirectly, any equity securities of the
Company (or any securities convertible into, exercisable
for or exchangeable for equity securities of the Company),
except for the issuance of the Shares pursuant to the
Registration Statement and the issuance of shares pursuant
to the Company's existing stock option plan or bonus plan
as described in the Registration Statement and the
Prospectus. In the event that during this period, (i) any
shares are issued pursuant to the Company's existing stock
option plan or bonus plan that are exercisable during such
90 day period or (ii) any registration is effected on Form
S-8 or on any successor form relating to shares that are
exercisable during such 90 period, the Company shall
obtain the written agreement of such grantee or purchaser
or holder of such registered securities that, for a period
of 90 days after the date of this Agreement, such person
will not, without the prior written consent of CIBC World
Markets Corp., offer for sale, sell, distribute, grant any
option for the sale of, or otherwise dispose of, directly
or indirectly, or exercise any registration rights with
respect to, any shares of Common Stock (or any securities
convertible into, exercisable for, or exchangeable for any
shares of Common Stock) owned by such person.
(I) On or before completion of this offering, the
Company shall make all filings required under applicable
securities laws and by the NYSE (including any required
registration under the Exchange Act).
(J) Prior to the Closing Date, the Company will
issue no press release or other communications directly or
indirectly and hold no press conference with respect to
the Company, the condition, financial or otherwise, or the
earnings, business affairs or business prospects of any of
them, or the offering of the Shares without the prior
written consent of the Representatives unless in the
judgment of the Company and its counsel, and after
notification to the Representatives, such press release or
communication is required by law.
-26-
(K) The Company will apply the net proceeds from
the offering of the Shares in the manner set forth under
"Use of Proceeds" in the Prospectus.
(b) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated, all costs
and expenses incident to the public offering of the Shares and the
performance of the obligations of the Company under this Agreement
including those relating to: (i) the preparation, printing, filing
and distribution of the Registration Statement including all
exhibits thereto, each preliminary prospectus, the Prospectus, all
amendments and supplements to the Registration Statement and the
Prospectus and any document incorporated by reference therein, and
the printing, filing and distribution of this Agreement; (ii) the
preparation and delivery of certificates for the Shares to the
Underwriters; (iii) the registration or qualification of the
Shares for offer and sale under the securities or Blue Sky laws of
the various jurisdictions referred to in Section 7(a)(F),
including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such registration and
qualification and the preparation, printing, distribution and
shipment of preliminary and supplementary Blue Sky memoranda; (iv)
the furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of each
preliminary prospectus, the Prospectus and all amendments or
supplements to the Prospectus, and of the several documents
required by this Section to be so furnished, as may be reasonably
requested for use in connection with the offering and sale of the
Shares by the Underwriters or by dealers to whom Shares may be
sold; (v) the filing fees of the NASD in connection with its
review of the terms of the public offering and reasonable fees and
disbursements of counsel for the Underwriters in connection with
such review; (vi) listing of the Shares on the NYSE; and (vii) all
transfer taxes, if any, with respect to the sale and delivery of
the Shares by the Company to the Underwriters. Subject to the
provisions of Section 10, the Underwriters agree to pay, whether
or not the transactions contemplated hereby are consummated or
this Agreement is terminated, all costs and expenses incident to
the performance of the obligations of the Underwriters under this
Agreement not payable by the Company pursuant to the preceding
sentence, including, without limitation, the fees and
disbursements of counsel for the Underwriters.
8. Indemnification.
(a) The Company and the Selling Stockholders agree,
jointly and severally, to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act against any and all losses, claims, damages
and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they, or any of them,
may become subject under the Securities Act, the Exchange Act or
other Federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact
-27-
contained in any preliminary prospectus, the Registration Statement
or the Prospectus or any amendment thereof or supplement thereto,
or in any Blue Sky application or other information or other
documents executed by the Company filed in any state or other
jurisdiction to qualify any or all of the Shares under the
securities laws thereof (any such application, document or
information being hereinafter referred to as a "Blue Sky
Application") or arise out of or are based upon 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, (ii) in whole or in part upon any breach of the
representations and warranties set forth in Section 4 hereof, or
(iii) in whole or in part upon any failure of the Company to
perform any of its obligations hereunder or under law; provided,
however, that such indemnity shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) on account
of any losses, claims, damages or liabilities arising from the sale
of the Shares to any person by such Underwriter if such untrue
statement or omission or alleged untrue statement or omission was
made in such preliminary prospectus, the Registration Statement or
the Prospectus, or such amendment or supplement thereto, or in any
Blue Sky Application in reliance upon and in conformity with
information furnished in writing to the Company by the
Representatives on behalf of any Underwriter specifically for use
therein. Notwithstanding the foregoing, the liability of the
Selling Stockholders pursuant to the provisions of Section 8(a)
shall be limited to an amount equal to the aggregate net proceeds
received by such Selling Stockholders from the sale of the Shares
sold by the Selling Stockholders hereunder. This indemnity
agreement will be in addition to any liability which the Company
and Selling Stockholders may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Stockholders
and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, each director of the Company, and each officer of the
Company who signs the Registration Statement, to the same extent as
the foregoing indemnity from the Company and the Selling
Stockholders to each Underwriter, but only insofar as such losses,
claims, damages or liabilities arise out of or are based upon any
untrue statement or omission or alleged untrue statement or
omission which was made in any preliminary prospectus, the
Registration Statement or the Prospectus, or any amendment thereof
or supplement thereto, contained in the fourth, tenth and
fourteenth paragraphs under the caption "Underwriting" in the
Prospectus; provided, however, that the obligation of each
Underwriter to indemnify the Company or the Selling Stockholders
(including any controlling person, director or officer thereof)
shall be limited to the net proceeds received by the Company from
such Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of
notice of commencement of any action, suit or proceeding against
such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section, notify each such
indemnifying party of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 8(a) or 8(b) shall be
available to any party who shall fail to give notice as provided in
this Section 8(c) if the party to whom
-28-
notice was not given was unaware of the proceeding to which such
notice would have related and was prejudiced by the failure to give
such notice but the omission so to notify such indemnifying party
of any such action, suit or proceeding shall not relieve it from
any liability that it may have to any indemnified party for
contribution or otherwise than under this Section. In case any such
action, suit or proceeding shall be brought against any indemnified
party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof and the approval by the indemnified party of such counsel,
the indemnifying party shall not be liable to such indemnified
party for any legal or other expenses, except as provided below and
except for the reasonable costs of investigation subsequently
incurred by such indemnified party in connection with the defense
thereof. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless
(i) the employment of counsel by such indemnified party has been
authorized in writing by the indemnifying parties, (ii) the
indemnified party shall have been advised by counsel that there may
be one or more legal defenses available to it which are different
from or in addition to those available to the indemnifying party
(in which case the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the indemnified
party) or (iii) the indemnifying parties shall not have employed
counsel to assume the defense of such action within a reasonable
time after notice of the commencement thereof, in each of which
cases the fees and expenses of counsel shall be at the expense of
the indemnifying parties. An indemnifying party shall not be liable
for any settlement of any action, suit, proceeding or claim
effected without its written consent, which consent shall not be
unreasonably withheld or delayed.
9. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnification provided
for in Section 8(a) or 8(b) is due in accordance with its terms but for any
reason is held to be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b), then each indemnifying party shall
contribute to the aggregate losses, claims, damages and liabilities (including
any investigation, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claims asserted, but after deducting any contribution received by any person
entitled hereunder to contribution from any person who may be liable for
contribution) to which the indemnified party may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriters on the other from
the offering of the Shares or, if such allocation is not permitted by applicable
law or indemnification is not available as a result of the indemnifying party
not having received notice as provided in Section 8 hereof, in such proportion
as is appropriate to reflect not only the relative benefits referred to above
but also the relative fault of the Company and the Selling Stockholders on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company, the Selling Stockholders and the Underwriters
shall be deemed to be in the same proportion as (x) the total proceeds from the
-29-
offering (net of underwriting discounts but before deducting expenses) received
by the Company or the Selling Stockholders, as set forth in the table on the
cover page of the Prospectus, bear to (y) the underwriting discounts received by
the Underwriters, as set forth in the table on the cover page of the Prospectus.
The relative fault of the Company and the Selling Stockholders or the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact related to information
supplied by the Company and the Selling Stockholders or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 9, (i) in no case shall any Underwriter (except as may be provided
in the Agreement Among Underwriters) be liable or responsible for any amount in
excess of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder; (ii) the Company shall be liable and responsible for any
amount in excess of such underwriting discount; and (iii) in no case shall the
Selling Stockholders be liable and responsible for any amount in excess of the
aggregate net proceeds of the sale of Shares received by the Selling
Stockholders; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same rights
to contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of the Section 15 of the Securities Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) in the immediately preceding sentence of this Section 9. Any party entitled
to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section,
notify such party or parties from whom contribution may be sought, but the
omission so to notify such party or parties from whom contribution may be sought
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
Section. No party shall be liable for contribution with respect to any action,
suit, proceeding or claim settled without its written consent. The Underwriter's
obligations to contribute pursuant to this Section 9 are several in proportion
to their respective underwriting commitments and not joint.
10. Termination. This Agreement may be terminated with
respect to the Shares to be purchased on a Closing Date by the Representatives
by notifying the Company and the Selling Stockholders at any time
(a) in the absolute discretion of the Representatives at
or before any Closing Date: (i) if on or prior to such date, any
domestic or international event or act or occurrence has materially
disrupted, or in the opinion of the Representatives will in the
future materially disrupt, the securities markets; (ii) if there
has occurred any new outbreak or material escalation of hostilities
or other calamity or crisis the effect of which
-30-
on the financial markets of the United States is such as to make
it, in the judgment of the Representatives, inadvisable to proceed
with the offering; (iii) if there shall be such a material adverse
change in general financial, political or economic conditions or
the effect of international conditions on the financial markets in
the United States is such as to make it, in the judgment of the
Representatives, inadvisable or impracticable to market the Shares;
(iv) if trading in the Shares has been suspended by the Commission
or trading generally on the New York Stock Exchange, Inc., on the
American Stock Exchange, Inc. or the Nasdaq National Market has
been suspended or limited, or minimum or maximum ranges for prices
for securities shall have been fixed, or maximum ranges for prices
for securities have been required, by said exchanges or by order of
the Commission, the National Association of Securities Dealers,
Inc., or any other governmental or regulatory authority; or (v) if
a banking moratorium has been declared by any state or Federal
authority; or (vi) if, in the judgment of the Representatives,
there has occurred a Material Adverse Effect, or
(b) at or before any Closing Date, that any of the
conditions specified in Section 6 shall not have been fulfilled
when and as required by this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, neither the Company nor the Selling Stockholders shall be under any
liability to any Underwriter, and no Underwriter shall be under any liability to
the Company, except that (y) if this Agreement is terminated by the
Representatives or the Underwriters because of any failure, refusal or inability
on the part of the Company or the Selling Stockholders to comply with the terms
or to fulfill any of the conditions of this Agreement, the Company will
reimburse the Underwriters for all out-of-pocket expenses (including the
reasonable fees and disbursements of their counsel) incurred by them in
connection with the proposed purchase and sale of the Shares or in contemplation
of performing their obligations hereunder and (z) no Underwriter who shall have
failed or refused to purchase the Shares agreed to be purchased by it under this
Agreement, without some reason sufficient hereunder to justify cancellation or
termination of its obligations under this Agreement, shall be relieved of
liability to the Company, the Selling Stockholders or to the other Underwriters
for damages occasioned by its failure or refusal.
11. Substitution of Underwriters. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under Section 10) to purchase on
any Closing Date the Shares agreed to be purchased on such Closing Date by such
Underwriter or Underwriters, the Representatives may find one or more substitute
underwriters to purchase such Shares or make such other arrangements as the
Representatives may deem advisable or one or more of the remaining Underwriters
may agree to purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall not exceed 10%
of the Shares that all the Underwriters are obligated to purchase
on such Closing Date, then each of the nondefaulting Underwriters
shall be obligated to purchase such Shares on the terms herein set
forth in proportion to
-31-
their respective obligations hereunder; provided, that in no event
shall the maximum number of Shares that any Underwriter has agreed
to purchase pursuant to Section 1 be increased pursuant to this
Section 11 by more than one-ninth of such number of Shares without
the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall exceed 10% of
the Shares that all the Underwriters are obligated to purchase on
such Closing Date, then the Company shall be entitled to one
additional business day within which it may, but is not obligated
to, find one or more substitute underwriters reasonably
satisfactory to the Representatives to purchase such Shares upon
the terms set forth in this Agreement.
In any such case, either the Representatives or the
Company shall have the right to postpone the applicable Closing Date for a
period of not more than five business days in order that necessary changes and
arrangements (including any necessary amendments or supplements to the
Registration Statement or Prospectus) may be effected by the Representatives and
the Company. If the number of Shares to be purchased on such Closing Date by
such defaulting Underwriter or Underwriters shall exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, and none of
the nondefaulting Underwriters or the Company shall make arrangements pursuant
to this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company or the Selling
Stockholders and without liability on the part of the Company, except in both
cases as provided in Sections 7(b), 8, 9 and 10. The provisions of this Section
shall not in any way affect the liability of any defaulting Underwriter to the
Company or the nondefaulting Underwriters arising out of such default. A
substitute underwriter hereunder shall become an Underwriter for all purposes of
this Agreement.
12. Agent for Service. The Company hereby irrevocably (i)
designates and appoints CT Corporation System at 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, X.X.X., as its authorized agent upon which process may be served in
any suit or proceeding arising out of or relating to this Agreement that may be
instituted in any federal or state court in the State of New York or brought
under federal or state securities laws; (ii) submits to the jurisdiction of any
such court in any such suit or proceeding, and (iii) irrevocably agrees that
service of process upon CT Corporation System and written notice of said service
to the Company, shall be deemed in every respect effective service of process
upon the Company in any such suit or proceeding. The Company agrees to take any
and all action, including the execution and filing of any and all such documents
and instruments, as may be necessary to continue such designation and
appointment of CT Corporation System in full force and effect; provided,
however, that the Company may, by written notice to the Representatives,
designate such additional or alternative agent for service of process that (i)
maintains an office located in the Borough of Manhattan, City of New York in the
State of New York, U.S.A., and (ii) is either (x) counsel for the Company or (y)
a corporate service company which acts as agent for service of process for other
persons in the ordinary cours of its business. Such written notice shall
identify the name of such agent for process and the address of the office of
such agent for process in the Borough of Manhattan, City of New York, State of
New York, U.S.A.
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13. No Offers in Panama. The Shares have not been and will
not be registered with the National Securities Comission of the Republic of
Panama in accordance with the applicable provisions of Cabinet Decree No. 247 of
1970. Accordingly, the Underwriters will not offer, sell or deliver any of the
Shares in the Republic of Panama.
14. Consent to Representation. The Company and the
Underwriters also acknowledge that Xxxxxx & Xxxxxx L.L.P., which is acting as
counsel to the Underwriters in connection with the offer and sale of the
Securities, also acts as counsel from time to time to the Company and certain of
its affiliates in connection with unrelated matters. The Company and the
Underwriters consent to Xxxxxx & Xxxxxx L.L.P. so acting as counsel to the
Underwriters.
15. Judgment Currency. The Company agrees to pay the
Underwriters for any loss incurred, as incurred, as a result of any judgment or
award in connection with this Agreement being expressed in a currency (the
"Judgment Currency") other than the currency in which such loss or damage is
denominated or in which the Underwriters' obligation is denominated, as the case
may be (the "Obligation Currency") and as a result of any variations as between
(i) the spot rate of exchange in New York at which the Judgment Currency could
have been converted into the Obligation Currency as of the date such judgment or
award is entered and (ii) the spot rate of exchange in New York on the date on
which such judgment or award is paid. The foregoing agreement shall constitute a
separate and independent obligation of the Company and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "spot rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, the relevant
currency.
16. Miscellaneous. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers, of the Selling Stockholders and of the Underwriters set forth in
or made pursuant to this Agreement shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or the Selling Stockholders or any of the officers, directors or
controlling persons referred to in Sections 8 and 9 hereof, and shall survive
delivery of and payment for the Shares. The provisions of Sections 7(b), 8, 9,
10 and 15 shall survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company and the Selling Stockholders and their respective
successors and assigns, and, to the extent expressed herein, for the benefit of
persons controlling any of the Underwriters, or the Company, and directors and
officers of the Company, and their respective successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser of
Shares from any Underwriter merely because of such purchase.
All notices and communications hereunder shall be in
writing and mailed or delivered or by telephone or telegraph if subsequently
confirmed in writing, (a) if to the Representatives, c/o CIBC World Markets
Corp., 000 0xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention:
_______________, with a copy to _____________________ and (b) if to the Company,
to its agent for service as such agent's address appears on the cover page of
the Registration Statement with a copy
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to ___________________ and (c) if to the Selling Stockholders to _______________
with a copy to _____________________.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, applicable to agreements made
and to be fully performed therein.
This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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Please confirm that the foregoing correctly sets forth the
agreement among us.
Very truly yours,
WILLBROS GROUP, INC.
By:
---------------------------------
Name:
Title:
SELLING STOCKHOLDERS
By
---------------------------------
Name:
Title: Attorney-in-Fact
Confirmed:
CIBC WORLD MARKETS CORP.
CREDIT LYONNAIS SECURITIES (USA) INC.
X.X. XXXXXXXX & CO.
FROST SECURITIES, INC.
XXXXXX XXXXXX & COMPANY, INC.
Acting severally on behalf of themselves
and as representative of the several
Underwriters named in Schedule I annexed
hereto.
By: CIBC WORLD MARKETS CORP.
By:
--------------------------
Name:
Title:
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SCHEDULE I
Number of Number of
Firm Shares to Firm Shares to
Be Purchased Be Purchased
Name of Underwriter From the Company From the Selling Stockholders
------------------- ---------------- -----------------------------
CIBC World Markets Corp.
Credit Lyonnais Securities (USA) Inc.
X.X. Xxxxxxxx & Co.
Frost Securites, Inc.
Xxxxxx Xxxxxx & Company, Inc.
Name of Selling Stockholder
---------------------------
------------------ -----------------
Total
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