EXHIBIT 1.1
3,500,000 SHARES
OMNI ENERGY SERVICES CORP.
COMMON STOCK
UNDERWRITING AGREEMENT
XXXXXX BROTHERS INC. November __, 1997
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representatives of
the several Underwriters
named in Schedule 1
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
OMNI Energy Services Corp., a Louisiana corporation (the "Company"),
proposes to sell 3,500,000 shares (the "Firm Shares") of the Company's common
stock, par value $.01 per share (the "Common Stock"), to the several
Underwriters named in Schedule 1 hereto (the "Underwriters"). In addition, the
Company proposes to grant to the Underwriters an option to purchase up to an
additional 525,000 shares of Common Stock on the terms and for the purposes set
forth in Section 2 (the "Option Shares"). The Firm Shares and the Option
Shares, if purchased, are hereinafter collectively called the "Shares." This is
to confirm the agreement concerning the purchase of the Shares from the Company
by the Underwriters.
It is understood and agreed by all the parties that on or before the
First Delivery Date (as defined in Section 4 hereof), and in any event prior to
the sale of the Shares to the Underwriters, the holders of all of the
outstanding common units of OMNI Geophysical, L.L.C., a Louisiana limited
liability company ("OMNI Geophysical"), will exchange all of such units for
12,000,000 newly issued shares of Common Stock of the Company and the holders of
all outstanding options to purchase common units of OMNI Geophysical will
receive options to purchase a corresponding number of shares of Common Stock
(the "Share Exchange"). As a result of the Share Exchange, OMNI Geophysical
will become a wholly owned subsidiary of the Company. Prior to the date and
time (the "Exchange Time") of the Share Exchange, (i) all of the undistributed
earnings of OMNI Geophysical through the Exchange Time will be distributed to
the members of OMNI Geophysical (the "LLC Distribution") and (ii) OMNI
Geophysical will repurchase all of the outstanding preferred units of OMNI
Geophysical for $5.0 million (the "Preferred Unit Repurchase" and, collectively
with the LLC Distribution, the "LLC Transactions"). As used herein, the term
"OMNI Entities" shall
mean the Company, OMNI Geophysical and each subsidiary (as
defined in Rule 405 of the Rules and Regulations (as defined in Section 1(a)
hereof)) of the Company and OMNI Geophysical (and including OMNI Geophysical as
a subsidiary of the Company after the Exchange Time).
1. Representations and Warranties of the Company and OMNI
Geophysical. The Company and OMNI Geophysical, jointly and severally, represent
and warrant to, and agree with, each Underwriter that:
(a) A registration statement on Form S-1 (File No. 333-36561) with
respect to the Shares (i) has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, (ii) has been
filed with the Commission under the Securities Act and (iii) either has become
effective under the Securities Act and is not proposed to be amended or is
proposed to be amended by amendment or post-effective amendment. If the Company
does not propose to amend such registration statement and if any post-effective
amendment to such registration statement has been filed with the Commission
prior to the execution and delivery of this Agreement, the most recent such
amendment has been declared effective by the Commission. Copies of such
registration statement as amended to date have been delivered by the Company to
you as the representatives (the "Representatives") of the Underwriters. As used
in this Agreement, "Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means the date
of the Effective Time; "Preliminary Prospectus" means each prospectus included
in such registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the Commission
by the Company with the consent of the Representatives pursuant to Rule 424(a)
of the Rules and Regulations; "Registration Statement" means such registration
statement, as amended at the Effective Time, including, if the Effective Date is
on or before the date of this Agreement, all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations ("Rule 424(b)") in accordance with Section 5(a) hereof and deemed to
be a part thereof as of the Effective Time pursuant to paragraph (b) of Rule
430A of the Rules and Regulations; and "Prospectus" means such final prospectus,
as first filed with the Commission pursuant to paragraph (1) or (4) of Rule
424(b) or, if the Effective Date is after the date of this Agreement, the final
prospectus in the form heretofore delivered by the Company to the
Representatives, with any changes made thereto by the Company with the consent
of the Representatives, as the case may be. If it is contemplated at the time
this Agreement is executed that a registration statement or a post-effective
amendment will be filed pursuant to Rule 462(b) or 462(d) under the Securities
Act before the offering of the Common Stock may commence, the term "Registration
Statement" as used in this Agreement includes such registration statement or
amendment.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus. Each Preliminary Prospectus, at the time
of the filing thereof, conformed in all material respects to the requirements of
the Securities Act and the Rules and Regulations 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 to make the statements therein, in the light of the
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circumstances under which they were made, not misleading; provided, however,
that no representation or warranty is made as to information contained in or
omitted from any Preliminary Prospectus in reliance upon, and in conformity
with, written information furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein.
(c) If the Effective Date is on or before the date of this Agreement,
(i) the Registration Statement conforms in all material respects, and the
Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will when they become effective or are filed with
the Commission or are first used to confirm sales of the Shares, as the case may
be, conform in all material respects to the requirements of the Securities Act
and the Rules and Regulations, (ii) the Registration Statement and any amendment
thereto does not, and will not, as of the applicable effective date, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
and (iii) the Prospectus and any amendment or supplement thereto will not, as of
the applicable filing date or as of the first date of its use to confirm sales
of the Shares, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If the Effective Date is after the date of this Agreement,
(i) the Registration Statement and the Prospectus and any further amendments or
supplements thereto will, when they become effective or are filed with the
Commission or are first used to confirm sales of the Shares, as the case may be,
conform in all material respects to the requirements of the Securities Act and
the Rules and Regulations, (ii) the Registration Statement and any amendment
thereto will not, as of the applicable Effective Date, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) the Prospectus and any amendment or supplement thereto will not, as of the
applicable filing date or as of the first date of their use to confirm sales of
the Shares, 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 the light of the circumstances under which they were
made, not misleading. In addition, each of the statements made in such documents
within the coverage of Rule 175(b) of the Rules and Regulations was made or will
be made by the Company with a reasonable basis and in good faith.
Notwithstanding the foregoing, no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectus or any amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein. There is no contract or document required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as required.
(d) The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Louisiana with full corporate
power and authority to own, lease and operate its properties and conduct its
business and is duly qualified or registered as a foreign corporation for the
transaction of business and is in good standing as a foreign corporation under
the laws of each jurisdiction in which the character of the business conducted
by it or the location of the properties owned, leased or operated by it make
such qualification or registration necessary, except where the failure to
qualify or register or to be in good standing would not,
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individually or in the aggregate, have a material adverse effect on the
condition (financial or other), results of operations, business or prospects of
the Company and the Subsidiaries taken as a whole.
(e) OMNI Geophysical is a limited liability company duly organized and
validly existing in good standing under the laws of the State of Louisiana with
full power and authority to own, lease and operate its properties and conduct
its business and is duly qualified or registered as a foreign limited liability
company for the transaction of business and is in good standing as a foreign
limited liability company under the laws of each jurisdiction in which the
character of the business conducted by it or the location of the properties
owned, leased or operated by it make such qualification or registration
necessary, except where the failure to qualify or register or to be in good
standing would not, individually or in the aggregate, have a material adverse
effect on the condition (financial or other), results of operations, business or
prospects of the Company and its Subsidiaries taken as a whole.
(f) Each Subsidiary (other than OMNI Geophysical), is duly organized
and validly existing in good standing under the laws of the jurisdiction of its
incorporation or organization, with full power and authority to own, lease and
operate its properties and conduct its business and is duly qualified or
registered for the transaction of business and is in good standing under the
laws of each jurisdiction in which the character of the business conducted by it
or the location of the properties owned, leased or operated by it make such
qualification or registration necessary, except where the failure to qualify or
register or to be in good standing would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or other), results of
operations, business or prospects of the Company and the Subsidiaries taken as a
whole. None of the Subsidiaries, other than OMNI Geophysical after the Exchange
Time, is a "significant subsidiary" of the Company as such term is defined in
Rule 405 of the Rules and Regulations. All the outstanding shares of capital
stock or other equity interests of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and, upon the
consummation of the Share Exchange, all of such shares of capital stock or other
equity interests will be owned by the Company directly, or indirectly through
one of the other Subsidiaries, free and clear of any lien, adverse claim,
security interest or other encumbrance.
(g) Upon the consummation of the Share Exchange, the authorized and
outstanding capital stock of the Company will be as set forth in the Prospectus,
and all of the issued and outstanding shares of capital stock of the Company
will have been duly authorized and validly issued and will be fully paid and
nonassessable. The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be duly
and validly issued, fully paid and nonassessable. The Shares, when issued and
delivered against payment therefor as provided herein, will conform to the
description thereof contained under the caption "Description of Capital Stock"
in the Prospectus.
(h) Except as described in the Prospectus, there are no preemptive
rights or other rights to subscribe for or to purchase, nor any restriction upon
the voting or transfer of, any shares of Common Stock pursuant to the Company's
articles of incorporation, bylaws or other governing documents or any agreement
or other instrument to which any of the OMNI Entities is a party or by which any
of them may be bound, and, except as described in the Prospectus, there are no
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outstanding options, warrants or rights to purchase any shares of capital stock
of the Company, any securities convertible into or exercisable or exchangeable
for any shares of capital stock of the Company, any units or other equity
interests in OMNI Geophysical or any securities convertible into or exercisable
or exchangeable for any units or other equity interests of OMNI Geophysical.
(i) The Company and OMNI Geophysical have all requisite power and
authority to execute and deliver this Agreement, and the Company has all
requisite power and authority to issue, sell and deliver the Shares in
accordance with and upon the terms and conditions set forth in this Agreement
and in the Registration Statement and Prospectus. At each Delivery Date (as
defined in Section 4 hereof), all action required to be taken by the Company and
OMNI Geophysical for the authorization, issuance, sale and delivery of the
Shares and the consummation of the transactions contemplated by this Agreement,
including without limitation the Share Exchange and the LLC Transactions, shall
have been validly taken. This Agreement has been duly and validly authorized,
executed and delivered by the Company and OMNI Geophysical.
(j) Neither the offering, issuance and sale by the Company of the
Shares, the execution, delivery and performance of this Agreement by the Company
and OMNI Geophysical nor the consummation of the transactions contemplated
hereby (including the Share Exchange and the LLC Transactions) (i) conflicts or
will conflict with or constitutes or will constitute a breach or violation of,
or a default (or an event which, with notice or lapse of time or both, would
constitute such a default) under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which any of the OMNI Entities is
a party or by which any of them is bound or to which any of the property or
assets of any of them is subject, (ii) constitutes or will constitute a
violation of the articles of incorporation, articles of organization, operating
agreement, bylaws or other governing documents of any of the OMNI Entities,
(iii) violates or will violate any law, statute or regulation or any order, rule
decree, judgment or injunction of any court or governmental agency or body
directed to any of the OMNI Entities or any of their properties in a proceeding
to which any of them or their property is a party or (iv) will result in the
creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of any of the OMNI Entities.
(k) Except for the registration of the Shares under the Securities Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the securities or "Blue Sky" laws of certain jurisdictions and
applicable state securities laws in connection with the purchase and
distribution of the Shares by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement by the Company and OMNI Geophysical and the
consummation of the transactions contemplated hereby, including without
limitation the Share Exchange and the LLC Transactions.
(l) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company or OMNI Geophysical and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any
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securities being registered pursuant to any other registration statement filed
by the Company under the Securities Act.
(m) Except as described in the Prospectus, the Company has not sold or
issued any shares of Common Stock and OMNI Geophysical has not sold or issued
any units or other equity interests during the six-month period preceding the
date of the Prospectus, including any sales pursuant to Rule 144A under, or
Regulation D or S of, the Securities Act.
(n) None of the OMNI Entities has sustained, since the date of the
latest audited financial statements included in the Prospectus, any material
loss or interference with its business from fire, explosion, flood, accident or
other calamity, whether or not covered by insurance, or from any labor dispute,
or has become a party to or the subject of any material litigation, court or
governmental action, investigation, order or decree, in any case otherwise than
as set forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Prospectus, there has not been any
change in the capital stock or long-term debt, or any material change in short-
term debt, of the OMNI Entities or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, operations, business, prospects, management, capitalization,
financial condition, results of operations or net worth of the Company and the
Subsidiaries, otherwise than as set forth or contemplated in the Prospectus.
(o) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements included in the Registration Statement, any Preliminary Prospectus
and the Prospectus (or any amendment or supplement thereto), are independent
public accountants with respect to each of the OMNI Entities as required by the
Securities Act and the Rules and Regulations.
(p) The financial statements (including the related notes) included in
the Registration Statement, any Preliminary Prospectus and the Prospectus (or
any amendment or supplement thereto) present fairly in all material respects the
financial position, results of operations and cash flows of the entities
purported to be shown thereby at the dates and for the periods indicated, all in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods indicated. The selected historical financial data
included in the Prospectus under the caption "Selected Financial and Operating
Data" are fairly stated in relation to the historical financial statements from
which they have been derived. The pro forma financial statements set forth in
the Registration Statement, any Preliminary Prospectus and the Prospectus (the
"pro forma financial statements") have been prepared in accordance with the
applicable accounting requirements of Rule 11-02 of Regulation S-X; the pro
forma adjustments reflected in the pro forma financial statements have been
properly applied to the historical amounts in compilation of such statements;
and the assumptions used in the preparation of the pro forma financial
statements are, in the opinion of the Company and OMNI Geophysical, reasonable.
(q) Each of the OMNI Entities have good and marketable title in fee
simple to all real property and good and marketable title to all personal
property owned by them, free and clear of all liens, claims, encumbrances and
title defects except (i) as described in the Prospectus or (ii) such as do not
materially interfere with the use of such properties as they have been used in
the past
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and are proposed to be used in the future as described in the Prospectus; and
all real property and buildings held under lease by any of the OMNI Entities are
held by them under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the OMNI Entities.
(r) None of the OMNI Entities is (i) in breach or violation of its
charter, articles of organization, operating agreement, bylaws or other
governing documents or of any law, statute or regulation or order, decree,
judgment or injunction of any court or governmental agency or body having
jurisdiction over it or (ii) in default (and no event has occurred which, with
notice or lapse of time or both, would constitute such a default) breach or
violation in the due performance of any term, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties are subject. To the knowledge of the Company and OMNI Geophysical,
no third party to any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which it is a party or by which it is
bound or to which any of its properties are subject is in default under any such
agreement.
(s) No action has been taken and no statute, rule or regulation or
order has been enacted, adopted or issued by any governmental agency or body
which prevents the issuance of the Shares or suspends the effectiveness of the
Registration Statement, prevents or suspends the use of any Preliminary
Prospectus or suspends the sale of the Shares in any jurisdiction in which the
Shares are qualified pursuant to Section 5(h) hereof; no injunction, restraining
order or order of any nature by a federal or state court of competent
jurisdiction has been issued with respect to the Company which would prevent or
suspend the issuance or sale of the Shares, the effectiveness of the
Registration Statement or the use of any Preliminary Prospectus in any
jurisdiction in which the Shares are qualified pursuant to Section 5(h) hereof;
no action, suit or proceeding is pending against or, to the best knowledge of
the Company or OMNI Geophysical, threatened against or affecting any of the OMNI
Entities before any court or arbitrator or any governmental body, agency or
official, domestic or foreign, which, if adversely determined, would materially
interfere with or adversely affect the issuance of the Shares or in any manner
draw into question the validity or the subject matter of this Agreement and the
transactions contemplated hereby, including without limitation the Share
Exchange and the LLC Transactions, or the performance by the Company and OMNI
Geophysical of their respective obligations hereunder.
(t) Except as disclosed in the Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency or body, domestic or
foreign, now pending or, to the knowledge of the Company or OMNI Geophysical,
threatened against any of the OMNI Entities or any of their respective
properties which, if determined adversely to such person, would individually or
in the aggregate have a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and the
Subsidiaries taken as a whole.
(u) Except as described in the Prospectus, each of the OMNI Entities
own or possess adequate rights to use all patents, patent applications,
trademarks, trademark registrations, trade names, service marks, service xxxx
registrations, copyrights, licenses inventions and trade secrets necessary for
the conduct of their respective businesses, and the Company and OMNI
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Geophysical have no reason to believe that the conduct of the respective
businesses of the OMNI Entities will conflict with, and have not received any
notice of any claim of conflict with, any such rights of others.
(v) Each of the OMNI Entities carry, or are covered by, insurance in
such amounts and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties and as is
customarily obtained by businesses similarly situated. In the Company's and OMNI
Geophysical's reasonable judgment, such insurance insures against such losses
and risks as are adequate to protect the OMNI Entities and their businesses.
None of the OMNI Entities has received notice from any insurer or agent of such
insurer that substantial capital improvements or other expenditures will have to
be made in order to continue such insurance; and all such insurance is
outstanding and duly in force on the date hereof and will be outstanding and
duly in force on each Delivery Date.
(w) None of the OMNI Entities is, or at either Delivery Date will be,
(a) a "public utility company", a "holding company" or a "subsidiary company" of
a "holding company" or an "affiliate" thereof, within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or (b) an "investment company"
or a company "controlled by" an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the rules and regulations thereunder.
(x) Each of the OMNI Entities has, or at each Delivery Date will have,
such permits, consents, licenses, franchises and authorizations of governmental
or regulatory authorities ("permits") as are necessary to conduct the business
currently (or, as described or contemplated in the Prospectus, to be) operated
by them, except for such permits which, if not obtained, would not have,
individually or in the aggregate, a material adverse effect on the condition
(financial or other), results of operations, business or prospects of the
Company and the Subsidiaries taken as a whole; and none of the OMNI Entities has
received any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit.
(y) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, hazardous
wastes or hazardous substances by any of the OMNI Entities (or, to the knowledge
of the Company and OMNI Geophysical, any predecessors in interest to the OMNI
Entities) at, upon or from any of the property now or previously owned or leased
by any of the OMNI Entities in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which would not
have, or could not be reasonably likely to have, singularly or in the aggregate
with all such violations and remedial actions, a material adverse effect on the
condition (financial or other), results of operations, business or prospects of
the Company and the Subsidiaries taken as a whole; there has been no material
spill, discharge, leak, emission,
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injection, escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, solid wastes,
hazardous wastes or hazardous substances due to or caused by the Company or the
Subsidiaries or with respect to which the Company or the Subsidiaries have
knowledge, except for any such spill, discharge, leak, emission, injection,
escape, dumping or release which would not have or would not be reasonably
likely to have, individually or in the aggregate, a material adverse effect on
the condition (financial or other), results of operations, business or prospects
of the Company and the Subsidiaries taken as a whole; and the terms "hazardous
wastes," "toxic wastes," "hazardous substances" and "solid wastes" shall have
the meanings specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection.
(z) Each of the OMNI Entities is in compliance in all material
respects with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA) for
which any of the OMNI Entities would have any liability; none of the OMNI
Entities have incurred or expects to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or (ii)
Section 412 or 4971 of the Internal Revenue Code of 1986, as amended, including
the regulations and published interpretations thereunder (the "Code"); and each
"pension plan" for which any of the OMNI Entities would have any liability that
is intended to be qualified under Section 401(a) of the Code is so qualified in
all material respects and nothing has occurred, whether by action or by failure
to act, which would cause the loss of such qualification.
(aa) Each of the OMNI Entities has filed all federal, state and local
foreign income and franchise tax returns required to be filed through the date
hereof and has paid all taxes due thereon, and no tax deficiency has been
determined adversely to any of the OMNI Entities which has had (nor do any of
the Company and OMNI Geophysical have any knowledge of any tax deficiency which,
if determined adversely to any one of the OMNI Entities, might have) a material
adverse effect on the condition (financial or other), results of operations,
business or prospects of the Company and the Subsidiaries taken as a whole. All
of the members of OMNI Geophysical are citizens or residents of the United
States for United States federal income tax purposes. Neither OMNI Geophysical
nor the Company will incur any liability for federal, state, local or other
taxes as a result of the Share Exchange, except for any such liability which
would not, individually or in the aggregate, have a material adverse effect on
the condition (financial or other), results of operations, business or prospects
of the Company and the Subsidiaries taken as a whole.
(bb) None of the OMNI Entities (i) has taken, and none of such persons
shall take, directly or indirectly, any action designed to cause or result in,
or which has constituted or which might constitute, the stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of the Common Stock in violation of any law, rule or regulation or (ii) since
the initial filing of the Registration Statement, except as contemplated by this
Agreement, (A) has sold, bid for, purchased or paid anyone any compensation for
soliciting purchases of the Common Stock or (B) has paid or, except as
contemplated hereby, has agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(cc) The Shares have been approved for inclusion on the Nasdaq
National Market ("Nasdaq"), subject only to official notice of issuance.
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(dd) From the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, none of the OMNI Entities has (i) issued any securities or granted
any options to purchase any securities, (ii) incurred any liability or
obligation, direct or contingent, other than liabilities and obligations which
were incurred in the ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business or (iv) declared or paid any
dividend on its capital stock.
(ee) Each of the OMNI Entities (i) makes and keeps accurate books and
records and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the recorded accountability for its assets is compared
with existing assets at reasonable intervals.
(ff) None of the OMNI Entities, nor any director, officer, agent,
employee or other person associated with or acting on behalf of any of the OMNI
Entities, has used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; made any
direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(gg) No relationship, direct or indirect, exists between or among any
of the OMNI Entities, on the one hand, and any of the directors, officers,
stockholders, customers or suppliers of any of the OMNI Entities, on the other
hand, which is required to be described in the Prospectus which is not so
described.
(hh) The issuance of shares of Common Stock in the Share Exchange is
exempt from the registration requirements of the Securities Act and the
securities laws of any state having jurisdiction with respect thereto, and none
of the OMNI Entities has taken or will take any action that would cause the loss
of such exemption.
2. Purchase of the Shares by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 3,500,000 Firm Shares
to the several Underwriters, and each of the Underwriters, severally and not
jointly, agrees to purchase the number of Firm Shares set opposite that
Underwriter's name in Schedule 1 hereto. The respective purchase obligations of
the Underwriters with respect to the Firm Shares shall be rounded among the
Underwriters to avoid fractional shares, as the Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to 525,000 Option Shares. Such option is granted solely for the
purpose of covering over-allotments in the sale of Firm Shares and is
exercisable as provided in Section 4 hereof. Option Shares shall be purchased
severally for the account of the Underwriters in proportion to the number of
Firm
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Shares set opposite the names of such Underwriters in Schedule 1 hereto. The
respective purchase obligations of each Underwriter with respect to the Option
Shares shall be adjusted by the Representatives so that no Underwriter shall be
obligated to purchase Option Shares other than in 100 Share amounts. The price
of both the Firm Shares and any Option Shares shall be $ _____ per Share.
The Company shall not be obligated to deliver any of the Shares to be
delivered on the First Delivery Date or the Second Delivery Date (as defined in
Section 4 hereof), as the case may be, except upon payment for all the Shares to
be purchased on such Delivery Date as provided herein.
3. Offering of Shares by the Underwriters. Upon authorization by
the Representatives of the release of the Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set
forth in the Prospectus.
4. Delivery of and Payment for the Shares. Delivery of and payment
for the Firm Shares shall be made at such place as shall be determined by
agreement between the Representatives and the Company at 10:00 A.M., New York
City time, on the fourth full Business Day (as defined in Section 15 hereof)
following the date of this Agreement or at such other date as shall be
determined by agreement between the Representatives and the Company. This date
and time are sometimes referred to as the "First Delivery Date." On the First
Delivery Date, the Company shall deliver or cause to be delivered certificates
representing the Firm Shares to the Representatives for the account of each
Underwriter against payment to or upon the order of the Company of the purchase
price by wire transfer of immediately available funds. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Firm Shares shall be registered in such names and in such
denominations as the Representatives shall request in writing not less than two
full Business Days prior to the First Delivery Date. For the purpose of
expediting the checking and packaging of the certificates for the Firm Shares,
the Company shall make the certificates representing the Firm Shares available
for inspection by the Representatives in New York City, not later than 2:00
P.M., New York City time, on the Business Day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 2 may be exercised by written notice
being given to the Company by the Representatives. Such notice shall set forth
the aggregate number of Option Shares as to which the option is being exercised,
the names in which the Option Shares are to be registered, the denominations in
which the Option Shares are to be issued and the date and time, as determined by
the Representatives, when the Option Shares are to be delivered; provided,
however, that this date and time shall not be earlier than the First Delivery
Date nor earlier than the second Business Day after the date on which the option
shall have been exercised nor later than the fifth Business Day after the date
on which the option shall have been exercised. The date and time the Option
Shares are delivered are sometimes referred to as the "Second Delivery Date,"
and the First Delivery Date and the Second Delivery Date are sometimes each
referred to as a "Delivery Date."
-11-
Delivery of and payment for the Option Shares shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Company shall deliver or
cause to be delivered the certificates representing the Option Shares to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by wire transfer of immediately
available funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Upon delivery, the Option Shares
shall be registered in such names and in such denominations as the
Representatives shall request in the aforesaid written notice. For the purpose
of expediting the checking and packaging of the certificates for the Option
Shares, the Company shall make the certificates representing the Option Shares
available for inspection by the Representatives in New York City, not later than
2:00 P.M., New York City time, on the Business Day prior to the Second Delivery
Date.
5. Further Agreements of the Company. The Company covenants and
agrees with each Underwriter:
(a) To prepare the Prospectus in a form approved by the
Representatives and to 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) of the Rules
and Regulations; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus except as permitted herein; to
advise the Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel
for the Underwriters an executed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits other
than this Agreement) and (ii) each Preliminary Prospectus, the Prospectus
-12-
and any amended or supplemented Prospectus; and, if the delivery of a prospectus
is required at any time after the Effective Time in connection with the offering
or sale of the Shares or any other securities relating thereto and if at such
time any events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with the
Securities Act, to notify the Representatives and, upon their request, to file
such document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Representatives may from time
to time reasonably request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Representatives, be required by
the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Representatives and counsel for the Underwriters and obtain the consent of
the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make generally
available to the Company's security holders and to deliver to the
Representatives an earnings statement of the Company and the Subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by the Company
to its security holders and all public reports and all reports and financial
statements furnished by the Company to the principal national securities
exchange or automated quotation system upon which the Shares may be listed
pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act, or any rule or regulation of the
Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Shares for offering and
sale under the securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Shares; provided that in no event shall the
Company be obligated in connection therewith to qualify as a foreign
corporation, or to execute a general consent to service of process;
(i) For a period of 180 days from the date of the Prospectus, not to,
directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of
(or enter into any transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any
-13-
time in the future of) any shares of Common Stock or securities convertible into
or exchangeable for Common Stock, or sell or grant options, rights or warrants
with respect to any shares of Common Stock or securities convertible into or
exchangeable for Common Stock or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of such shares of Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or other securities, in cash or otherwise, in each case without the
prior written consent of Xxxxxx Brothers Inc.; provided, that the Company may,
as part of the consideration for the acquisition of American Helicopter
Drilling, Inc., issue to the sellers in such transaction up to [______ shares of
Common Stock] [that number of shares of Common Stock having a market value
(based on the trading price of the Common Stock on Nasdaq) not to exceed $_____
million];
(j) To cause each stockholder, officer and director of the Company to
furnish to the Representatives, prior to the First Delivery Date, a letter or
letters, substantially in the form attached hereto as Exhibit A, pursuant to
which each such person shall agree not to, directly or indirectly, (1) offer for
sale, sell, pledge or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any shares of Common Stock or
securities convertible into or exchangeable for Common Stock or (2) enter into
any swap or other derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks of ownership of such shares of
Common Stock, whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or other securities, in cash or
otherwise, in each case for a period of 180 days from the date of the
Prospectus, without the prior written consent of Xxxxxx Brothers Inc.;
(k) To take such action as shall be necessary to comply with the rules
and regulations of the Nasdaq with respect to the Shares;
(l) To apply the net proceeds from the sale of the Shares as set forth
in the Prospectus;
(m) To take such steps as shall be necessary to ensure that neither
the Company nor any of the Subsidiaries shall become an "investment company"
within the meaning of such term under the Investment Company Act and the rules
and regulations of the Commission thereunder; and
(n) To timely complete all required filings and otherwise fully comply
in a timely manner with all provisions of the Exchange Act, including the rules
and regulations thereunder, in connection with the registration of the Shares
thereunder.
6. Expenses. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Shares and any taxes
payable in that connection; (b) the costs incident to the preparation, printing,
filing, delivery and shipping of the Registration Statement and any amendments
and exhibits thereto; (c) the costs of distributing the Registration Statement
as originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), each Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided in
this Agreement; (d) the costs of producing and
-14-
distributing this Agreement and any other related documents in connection with
the offering, purchase, sale and delivery of the Shares; (e) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Shares; (f) any applicable
listing or other similar fees; (g) the fees and expenses of qualifying the
Shares under the securities laws of the several jurisdictions as provided in
Section 5(h) and of preparing, printing and distributing a Blue Sky Memorandum,
if the preparation of such Memorandum is requested by the Representatives
(including related fees and expenses of counsel to the Underwriters); (h) the
cost of printing certificates representing the Shares; (i) the costs and charges
of any transfer agent or registrar; and (j) all other costs and expenses
incident to the performance of the obligations of the Company; provided that,
except as provided in this Section 6 and in Section 11, the Underwriters shall
pay their own costs and expenses, including the costs and expenses of their
counsel, any transfer taxes on the Shares which they may sell and the expenses
of advertising any offering of the Shares made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
and OMNI Geophysical contained herein, to the performance by the Company of its
obligations hereunder and to the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a) hereof, the Registration Statement and all post-
effective amendments to the Registration Statement shall have become effective,
all filings required by Rule 424 and Rule 430A of the Rules and Regulations
shall have been made and no such filings shall have been made without the
consent of the Representatives; no stop order suspending the effectiveness of
the Registration Statement or any amendment or supplement thereto or suspending
the qualification of the Shares for offering or sale in any jurisdiction shall
have been issued; no proceedings for the issuance of any such order shall have
been initiated or threatened; and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been disclosed to the Representatives and complied with to
their satisfaction.
(b) No Underwriter shall have been advised by the Company or shall
have discovered and disclosed to the Company that the Registration Statement or
the Prospectus or any amendment or supplement thereto contains an untrue
statement of fact which, in the opinion of the Representatives or in the opinion
of counsel to the Underwriters, is material or omits to state a fact which, in
the opinion of the Representatives or in the opinion of counsel to the
Underwriters, is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Shares, the Registration
Statement and the Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Underwriters, and the
Company
-15-
shall have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P.
shall have furnished to the Representatives their written opinion, as counsel
for the Company and OMNI Geophysical, addressed to the Underwriters and dated
such Delivery Date, in form and substance satisfactory to the Representatives,
with respect to the matters set forth in Exhibit B hereto.
(e) The Representatives shall have received from Xxxxx & Xxxxx,
L.L.P., counsel for the Underwriters, such opinion or opinions, dated such
Delivery Date, with respect to the issuance and sale of the Shares, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(f) At the time of execution of this Agreement, the Representatives
shall have received from Xxxxxx Xxxxxxxx LLP a letter, in form and substance
satisfactory to the Representatives, addressed to the Underwriters and dated the
date hereof (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants' "comfort letters" to Underwriters in
connection with registered public offerings.
(g) With respect to the letter of Xxxxxx Xxxxxxxx LLP referred to in
the preceding paragraph and delivered to the Representatives concurrently with
the execution of this Agreement (the "initial letter"), the Company shall have
furnished to the Representatives a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated such Delivery Date (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the bring-down letter),
the conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii) confirming
in all material respects the conclusions and findings set forth in the initial
letter.
(h) On each Delivery Date, there shall have been furnished to the
Representatives a certificate, dated such Delivery Date and addressed to the
Representatives, signed on behalf of the Company by its Chief Executive Officer
or President and its Chief Financial Officer, to the effect that (i) the
representations, warranties and agreements of the Company contained in this
Agreement are true and correct, as if made at and as of such Delivery Date, and
the Company has complied with
-16-
all the agreements and satisfied all the conditions on its part to be complied
with or satisfied at or prior to such Delivery Date; (ii) no stop order
suspending the effectiveness of the Registration Statement has been issued, and
no proceeding for that purpose has been initiated or threatened; (iii) the
signers of said certificate have carefully examined the Registration Statement
and the Prospectus and any amendments or supplements thereto, and such documents
contain all statements and information required to be included therein, and do
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; (iv) since the Effective Date there has occurred no
event required to be set forth in an amendment or supplement to the Registration
Statement or the Prospectus which has not been so set forth; and (v) no event
contemplated by subsection (i) of this Section 7 in respect of any of the OMNI
Entities shall have occurred.
(i) Since the Effective Date, none of the OMNI Entities shall have
sustained any material loss or interference with its business by fire, flood,
explosion, accident or other calamity, whether or not covered by insurance, or
shall have become a party to or the subject of any litigation, court or
governmental action, investigation, order or decree which is materially adverse
to the OMNI Entities; nor shall there have been a change in the capital stock,
short-term debt or long-term debt of any of the OMNI Entities (other than as a
result of the consummation of the Share Exchange and the LLC Transactions) or
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, operations, business,
prospects, management, capitalization, financial condition, results of
operations or net worth of the OMNI Entities, which loss, litigation, change or
development, in the judgement of the Representatives, shall render it
impractical or inadvisable to proceed with the payment for and delivery of the
Shares.
(j) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of a
majority in interest of the several Underwriters, impracticable or inadvisable
to proceed with the public offering or delivery of the Shares being delivered on
such Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(k) The Nasdaq shall have approved the Shares for listing, subject
only to official notice of issuance and evidence of satisfactory distribution.
-17-
(l) The Representatives shall have been furnished by the Company such
additional documents and certificates as the Representatives or counsel for the
Underwriters may reasonably request.
(m) Prior to the closing hereunder on the First Delivery Date, the
Share Exchange and the LLC Transactions shall have been consummated in
accordance with the description thereof contained in the Prospectus.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to the Representatives and to counsel for the Underwriters. The
Company shall furnish to the Representatives conformed copies of such opinions,
certificates, letters and other documents in such number as they shall
reasonably request. If any of the conditions specified in this Section 7 shall
not have been fulfilled, when and as required by this Agreement, this Agreement
and all obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, each Delivery Date, by the Representatives. Any such
cancellation shall be without liability of the Underwriters to the Company or
any of its affiliates. Notice of such cancellation shall be given to the Company
in writing, or by telegraph or telephone and confirmed in writing.
8. Indemnification and Contribution.
(a) The Company and OMNI Geophysical, jointly and severally, shall
indemnify and hold harmless each Underwriter, its officers and employees and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Shares), to which that Underwriter, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained (A) in
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (B) in any blue sky application or other
document prepared or executed by the Company (or based upon any written
information furnished by the Company) specifically for the purpose of qualifying
any or all of the Shares under the securities laws of any state or other
jurisdiction (any such application, document or information being hereinafter
called a "Blue Sky Application"), (ii) the omission or alleged omission to state
in any Preliminary Prospectus, the Registration Statement or the Prospectus, or
in any amendment or supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (iii) any act or failure to act or any alleged act or
failure to act by any Underwriter in connection with, or relating in any manner
to, the Shares or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (i) or (ii) above (provided that
neither the Company nor OMNI Geophysical shall be liable under this clause (iii)
to the extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by such Underwriter through its gross negligence or willful misconduct), and
shall reimburse
-18-
each Underwriter and each such officer, employee or controlling person promptly
upon demand for any legal or other expenses reasonably incurred by that
Underwriter, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that neither the Company nor OMNI Geophysical shall be liable in any such case
to the extent that any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any such amendment or
supplement, or in any Blue Sky Application, in reliance upon and in conformity
with written information concerning such Underwriter furnished to the Company
through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Company or OMNI Geophysical may otherwise have to any
Underwriter or to any officer, employee or controlling person of that
Underwriter.
(b) Each Underwriter, severally but not jointly, shall indemnify and
hold harmless the Company, and its officers, employees and directors (including
any person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company), and each other person, if any,
who controls the Company within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Underwriter furnished to the
Company through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall
-19-
be brought against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate therein
and, to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that any Underwriter or
any such controlling person shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriters or such
controlling person unless (i) the employment of such counsel has been
specifically authorized in writing by the Company or OMNI Geophysical, (ii) the
Company or OMNI Geophysical shall have failed to assume the defense and employ
counsel or (iii) the named parties to any such action (including any impleaded
parties) include both such Underwriter or such controlling person and the
Company or OMNI Geophysical, and such Underwriter or such controlling person
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Company or OMNI Geophysical (in which case the Company or OMNI
Geophysical shall not have the right to assume the defense of such action on
behalf of such Underwriter or such controlling person and the fees and expenses
of such separate counsel shall be paid by the Company or OMNI Geophysical).
Neither the Company nor OMNI Geophysical shall, in connection with any one such
action or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any time
for such indemnified party, which firm shall be designated by the Underwriters.
No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld) settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and OMNI Geophysical, on the one hand, and the
Underwriters, on the other hand, from the offering of the Shares or (ii) if the
allocation provided by clause (i) above
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is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and OMNI Geophysical, on the one hand, and the
Underwriters, on the other hand, with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company and OMNI Geophysical, on the one hand, and the
Underwriters, on the other hand, with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Shares purchased under this Agreement (before deducting expenses) received by
the Company, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the Shares purchased
under this Agreement, on the other hand, bear to the total gross proceeds from
the offering of the Shares under this Agreement, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or OMNI Geophysical or the Underwriters,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
OMNI Geophysical and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8 were to be determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8
shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
becomes liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The Underwriters severally confirm and the Company and OMNI
Geophysical acknowledge that the statements with respect to the public offering
of the Shares by the Underwriters set forth on the cover page of, the legend
concerning over-allotments on the inside front cover page of and the concession
and reallowance figures appearing under the caption "Underwriting" in, the
Prospectus are correct and constitute the only information concerning such
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
9. Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-
defaulting Underwriters shall be obligated to
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purchase the Shares which the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number of
Firm Shares set opposite the name of each remaining non-defaulting Underwriter
in Schedule 1 hereto bears to the total number of Firm Shares set opposite the
names of all the remaining non-defaulting Underwriters in Schedule 1 hereto;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Shares on such Delivery Date if the total
number of Shares which the defaulting Underwriter or defaulting Underwriters
agreed but failed to purchase on such date exceeds 9.09% of the total number of
Shares to be purchased on such Delivery Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the number of
the Shares which it agreed to purchase on such Delivery Date pursuant to the
terms of Section 2. If the foregoing maximums are exceeded, the remaining non-
defaulting Underwriters, or those other Underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the Shares
to be purchased on such Delivery Date. If the remaining Underwriters or other
Underwriters satisfactory to the Representatives do not elect to purchase the
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such Delivery Date, this Agreement (or, with respect to the Second
Delivery Date, the obligation of the Underwriters to purchase, and of the
Company to sell, the Option Shares) shall terminate without liability on the
part of any non-defaulting Underwriter or the Company, except that the Company
will continue to be liable for the payment of expenses to the extent set forth
in Sections 6 and 11. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto who, pursuant to this
Section 9, purchases Firm Shares which a defaulting Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages, including expenses paid by the
Company pursuant to Sections 6 and 11, caused by its default. If other
Underwriters are obligated or agree to purchase the Shares of a defaulting or
withdrawing Underwriter, either the Representatives or the Company may postpone
the Delivery Date for up to seven full Business Days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the Company
prior to delivery of and payment for the Firm Shares if, prior to that time, any
of the events described in Section 7(i) or 7(j) shall have occurred or if the
Underwriters shall decline to purchase the Shares for any reason permitted under
this Agreement.
11. Reimbursement of Underwriters' Expenses. If the Company shall
fail to tender the Shares for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement to be performed by it, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company or
OMNI Geophysical is not fulfilled, the Company and OMNI Geophysical will
reimburse the Underwriters for all reasonable out-of-pocket expenses (including
fees and disbursements of counsel) incurred by the Underwriters in connection
with this Agreement and the proposed purchase of the Shares, and
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upon demand the Company and OMNI Geophysical shall collectively pay the full
amount thereof to the Representatives. If this Agreement is terminated pursuant
to Section 9 by reason of the default of one or more Underwriters, neither the
Company nor OMNI Geophysical shall be obligated to reimburse any defaulting
Underwriter on account of those expenses.
12. Notices. Any notice, consent, request, instruction, approval and
other communication provided for herein shall be in writing, shall be delivered
or sent by mail, telex or facsimile transmission and shall be deemed validly
given, made or served (i) on the date on which it is delivered personally with
receipt acknowledged, (ii) five Business Days after it is sent by registered or
certified mail (receipt requested and postage prepaid), (iii) one Business Day
after it is sent by overnight courier (charges prepaid) or (iv) on the same
Business Day when sent before 5:00 P.M., recipient's time (and on the next
Business Day when sent after 5:00 P.M., recipient's time) by telex or
telecopier, transmission confirmed and charges prepaid. Such notices shall be
in writing, and
(a) if to the Company or OMNI Geophysical, such notice shall be
addressed to the Company at 0000 XX Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxx
00000, Attention: Xx. Xxxxx X. Xxxxxxxxx (Fax: 318/000-0000); and
(b) if to the Underwriters, such notice shall be addressed to the
Representatives in care of Xxxxxx Brothers Inc., 3 World Financial Center,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Syndicate Department
(Fax: 212/000-0000), with a copy, in the case of any notice pursuant to
Section 8(c), to the Director of Litigation, Office of the General Counsel,
Xxxxxx Brothers Inc., 3 World Financial Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000;
provided, however, that any notice to a Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and
OMNI Geophysical shall be entitled to act and rely upon any request, consent,
notice or agreement given or made on behalf of the Underwriters by Xxxxxx
Brothers Inc. on behalf of the Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, OMNI
Geophysical and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company and OMNI
Geophysical contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control each Underwriter within
the meaning of Section 15 of the Securities Act and (b) the indemnity agreement
of the Underwriters contained in Section 8(b) of this Agreement shall be deemed
to be for the benefit of directors of the Company, officers of the Company who
have signed the Registration Statement and any person controlling the Company
within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section
-23-
13, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and OMNI Geophysical and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Shares and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
15. Definition of the Term "Business Day." For purposes of this
Agreement, "business day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
-24-
If the foregoing correctly sets forth the agreement among the Company,
OMNI Geophysical and the Underwriters, please indicate your acceptance in the
space provided for that purpose below.
Very truly yours,
OMNI ENERGY SERVICES CORP.
By:
------------------------------
Xxxxx X. Xxxxxxxxx
Chairman and Chief Executive Officer
OMNI GEOPHYSICAL, L.L.C.
By:
-------------------------------
Name:
Title:
Accepted:
XXXXXX BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX XXXXX & ASSOCIATES, INC.
For themselves and as
Representatives of the
several Underwriters named
in Schedule 1 hereto
By: XXXXXX BROTHERS INC.
By:
-----------------------------
Authorized Representative
-25-
EXHIBIT A
XXXXXX BROTHERS INC. __________________, 1997
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX XXXXX & ASSOCIATES
c/x Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") among OMNI Energy Services
Corp., a Louisiana corporation (the "Company"), OMNI Geophysical, L.L.C., a
Louisiana limited liability company, and Xxxxxx Brothers Inc., Prudential
Securities Incorporated and Xxxxxxx Xxxxx & Associates, Inc., as Underwriters,
relating to an underwritten public offering of common stock, par value $.01 per
share (the "Common Stock"), of the Company.
To induce you to enter into the Underwriting Agreement, the undersigned agrees
that he/she will not, directly or indirectly, (1) offer for sale, sell, pledge
or otherwise dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the disposition by any person at
any time in the future of) any shares of Common Stock or securities convertible
into or exchangeable for Common Stock or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of shares of Common Stock, whether
any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or other securities, in cash or otherwise, in each case
for a period of 180 days from the date of the Prospectus (as defined in the
Underwriting Agreement), without the prior written consent of Xxxxxx Brothers
Inc.
If for any reason the Underwriting Agreement is terminated before the First
Delivery Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
___________________________
EXHIBIT B
OPINION OF JONES, WALKER, XXXXXXXX, XXXXXXXXX
CARRERE & XXXXXXX, L.L.P.
1. The Company and the Subsidiaries have been duly organized and are
validly existing in good standing under the laws of their respective
jurisdictions of incorporation. The Company and the Subsidiaries have full
power and authority to own, lease and operate their respective properties and
conduct their respective businesses and are duly qualified and registered for
the transaction of business and are in good standing under the laws of each
jurisdiction in which the character of the respective businesses conducted by
them or the location of the properties owned, leased or operated by them make
such qualification or registration necessary, except where the failure to
qualify or register or to be in good standing would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or other),
results of operations, business or prospects of the Company and the Subsidiaries
taken as a whole.
2. All the outstanding shares of capital stock or other equity
interests of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable; and all of such shares of capital
stock or other equity interests are owned by the Company directly, or indirectly
through one of the other Subsidiaries, free and clear of any lien, adverse
claim, security interest or other encumbrance known to such counsel after due
inquiry.
3. The authorized and outstanding capital stock of the Company is as
set forth in the Prospectus. All of the issued and outstanding shares of
capital stock of the Company have been duly authorized, were validly issued and
are fully paid and nonassessable. The Company has all requisite power and
authority to issue, sell and deliver the Shares in accordance with and upon the
terms and conditions set forth in the Underwriting Agreement. The Shares have
been duly and validly authorized and, when issued and delivered against payment
therefor as provided in the Underwriting Agreement, will be duly and validly
issued, fully paid and nonassessable.
4. Except as described in the Prospectus, here are no preemptive
rights or other rights to subscribe for or to purchase, nor any restriction upon
the voting or transfer of, any shares of Common Stock pursuant to Louisiana law
or the Company's articles of incorporation, bylaws or other governing documents
or any agreement or other instrument known to such counsel to which the Company
or any of the Subsidiaries is a party or by which any of them may be bound.
Except as described in the Prospectus, to the knowledge of such counsel, there
are no outstanding options, warrants or rights to purchase any shares of capital
stock of the Company, any securities convertible into or exercisable or
exchangeable for any shares of capital stock of the Company, any units or other
equity interests in OMNI Geophysical or any securities convertible into or
exercisable or exchangeable for any units or other equity interests of OMNI
Geophysical.
5. The Company and OMNI Geophysical have all requisite power and
authority to execute and deliver the Underwriting Agreement and to incur and
perform their respective obligations provided therein, including the Share
Exchange and the LLC Transactions, and in the
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Registration Statement and the Prospectus. The Underwriting Agreement has been
duly and validly authorized, executed and delivered by the Company and OMNI
Geophysical.
6. Neither the offering, issuance and sale by the Company of the
Shares, the execution, delivery and performance of the Underwriting Agreement by
the Company and OMNI Geophysical nor the consummation of the transactions
contemplated thereby (including the Share Exchange and the LLC Transactions) (i)
conflicts or will conflict with or constitutes or will constitute a breach or
violation of, or a default (or an event which, with notice or lapse of time or
both, would constitute such a default) under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which any of the OMNI
Entities is a party or by which any of them is bound or to which any of the
property or assets of any of them is subject, (ii) constitutes or will
constitute a violation of the articles of incorporation, articles of
organization, operating agreement, bylaws or other governing documents of any of
the OMNI Entities, (iii) violates or will violate any law, statute or regulation
or any order, rule decree, judgment or injunction of any court or governmental
agency or body directed to any of the OMNI Entities or any of their properties
in a proceeding to which any of them or their property is a party or (iv) will
result in the creation or imposition of any lien, charge, claim or encumbrance
upon any property or asset of any of the OMNI Entities.
7. Except for the registration of the Shares under the Securities
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act, the securities or
"Blue Sky" laws of certain jurisdictions and applicable foreign securities laws
in connection with the purchase and distribution of the Shares by the
Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body is required for the
execution, delivery and performance of the Underwriting Agreement by the Company
and the consummation of the transactions contemplated thereby, including without
limitation the Share Exchange and the LLC Transactions.
8. To the best of such counsel's knowledge, except as described in
the Prospectus, there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Securities Act.
9. To such counsel's knowledge, there are no legal or governmental
actions, suits or proceedings pending or threatened to which the Company or any
of the Subsidiaries is a party or of which any of their respective property or
assets is subject which, if determined adversely to the Company or the
Subsidiaries, would materially interfere with or adversely affect the issuance
of the Shares or in any manner call into question the validity of the
Underwriting Agreement and the transactions contemplated thereby, including
without limitation the Share Exchange and the LLC Transactions, or the
performance by the Company and OMNI Geophysical of their respective obligations
thereunder, or would individually or in the aggregate have a material adverse
effect on
B-2
the condition (financial or other), results of operations, business or prospects
of the Company and the Subsidiaries taken as a whole.
10. As of the date hereof, neither the Company nor any of the
Subsidiaries is (a) a "public utility company", a "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" thereof, within
the meaning of the Public Utility Holding Company Act of 1935, as amended, or
(b) an "investment company" or a company "controlled by" an "investment company"
within the meaning of the Investment Company Act and the rules and regulations
thereunder.
11. To such counsel's knowledge, the Company and the Subsidiaries
possess all certificates, authorizations or permits issued by the appropriate
local, state, federal or foreign regulatory agencies or bodies necessary to
conduct the business currently (or, as described or contemplated in the
Prospectus, to be) operated by them, except for such certificates,
authorizations or permits which, if not obtained, would not have, individually
or in the aggregate, a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and the
Subsidiaries taken as a whole; and neither the Company nor the Subsidiaries
have received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit.
12. Neither OMNI Geophysical nor the Company will incur any liability
for federal, state, local or other taxes as a result of the Share Exchange,
except for any such liability which would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or other), results of
operations, business or prospects of the Company and the Subsidiaries taken as a
whole.
13. The Shares have been approved for inclusion on the Nasdaq
National Market, subject only to official notice of issuance.
14. The Registration Statement was declared effective under the
Securities Act at _________ New York City time on ____________, 1997; the
Prospectus was filed with the Commission pursuant to subparagraph ____ of Rule
424(b) of the Rules and Regulations on ___________, 1997; and no stop order
suspending the effectiveness of the Registration Statement has been issued and,
to the knowledge of such counsel, no proceeding for that purpose is pending or
threatened by the Commission.
15. The Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Company prior to the date hereof
(other than the financial statements, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements of the
Securities Act and the Rules and Regulations.
16. The statements in the Registration Statement, insofar as such
statements purport to summarize the provisions of the documents or agreements
specifically referred to therein or matters of law or legal conclusions, are
true and correct in all material respects and constitute a fair summary thereof.
The Common Stock conforms in all material respects to the description thereof
contained under the caption "Description of Capital Stock" in the Prospectus.
To such
B-3
counsel's knowledge, there are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations
which have not been described or filed as exhibits to the Registration
Statement.
17. The issuance of Common Units in the Share Exchange is exempt from
the registration requirements of the Securities Act and the securities laws of
any state having jurisdiction with respect thereto.
18. Upon delivery to the Underwriters of certificates evidencing the
Shares issued in the name of the Underwriters and payment by the Underwriters of
the purchase price for the Shares, the Underwriters will acquire the Shares free
of any adverse claim (as such term is defined in Section 8-302 of the New York
Uniform Commercial Code) assuming that the Underwriters are acting in good faith
and without notice of any adverse claim.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, the
independent public accountants of the Company and representatives of the
Underwriters, at which the contents of the Registration Statement and Prospectus
and related matters were discussed, and although such counsel is not passing
upon, and does not assume responsibility for the accuracy, completeness or
fairness of, any portion of the Registration Statement or the Prospectus, as
amended or supplemented (except to the extent specified in such counsel's
opinion), nothing has come to the attention of such counsel that causes such
counsel to believe that as of its effective date, the Registration Statement or
any further amendment thereto made by the Company prior to the date hereof
(other than the financial statements, including the notes thereto and the
auditor's report thereon, and the other financial and statistical information
contained therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that, as of its date and as of the date hereof, the Prospectus or
any further amendment or supplement thereto made by the Company prior to the
date hereof (other than the financial statements, including the notes thereto
and the auditor's report thereon, and the other financial and statistical
information contained therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
In rendering such opinion, such counsel may (i) rely in respect of
matters of fact upon certificates of officers and employees of the Company and
upon information obtained from public officials, (ii) assume that all documents
submitted to them as originals are authentic, that all copies submitted to them
conform to the originals thereof, and that the signatures on all documents
examined by such counsel are genuine and (iii) state that their opinion is
limited to federal laws and the laws of the State of Louisiana.
B-4
SCHEDULE 1
LIST OF UNDERWRITERS
NUMBER OF
UNDERWRITERS COMMON SHARES
-------------- -------------
Xxxxxx Brothers Inc.
Prudential Securities Incorporated
Xxxxxxx Xxxxx & Associates, Inc.
TOTAL 3,500,000
=========
S-1
