SUPERIOR ENERGY SERVICES, INC.
(A DELAWARE CORPORATION)
COMMON STOCK
UNDERWRITING AGREEMENT
DATED: NOVEMBER ___, 1997
SUPERIOR ENERGY SERVICES, INC.
UNDERWRITING AGREEMENT
November ___, 1997
XXXXXXX XXXX & COMPANY L.L.C.
XXXXXXXXX & COMPANY, INC.
XXXXXX, XXXXXXX INC.
As Representatives of the Several
Underwriters Named in Schedule A hereto
c/o Johnson Rice & Company L.L.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Dear Sirs:
Superior Energy Services, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule A
(collectively, the "Underwriters") an aggregate of 3,900,000 shares of Common
Stock, par value $0.001 per share (the "Common Stock"), of the Company (the
"Firm Company Shares") and the persons named on Schedule B hereto (the "Selling
Stockholders") propose to sell to the Underwriters an aggregate of 2,100,000
shares of Common Stock (the "Firm Selling Stockholder Shares"). The Firm
Company Shares and the Firm Selling Stockholder Shares are collectively referred
to herein as the "Firm Shares". The Firm Shares are to be sold to each
Underwriter, acting severally and not jointly, in such amounts as are set forth
in Schedule A opposite the name of such Underwriter.
The Selling Stockholders also grant to the Underwriters the option described
in Section 3 to purchase, on the same terms as the Firm Shares, up to 900,000
additional shares of Common Stock (the "Option Shares") solely to cover over-
allotments. The Firm Shares, together with all or any part of the Option
Shares, are collectively herein called the "Shares."
Section 1. Representations and Warranties of the Company The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-39205) with
respect to the Shares, including a preliminary form of prospectus, has been
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and the applicable
rules and regulations (the "1933 Act Regulations") of the Securities and
Exchange Commission (the "Commission"), and has been filed with the
Commission; and such amendments to such registration statement as may have
been required prior to the date hereof have been filed with the Commission,
and such amendments have been similarly
prepared. Copies of such registration statement and amendment or amendments
and of each related preliminary prospectus, and the exhibits, financial
statements and schedules, as amended and revised, have been delivered to
you. The Company has prepared in the same manner, and proposes so to file
with the Commission, one of the following: (i) prior to effectiveness of
such registration statement, a further amendment thereto, including the form
of final prospectus, (ii) if the Company does not rely on Rule 434 of the
1933 Act, a final prospectus in accordance with Rules 430A and 424(b) of the
1933 Act Regulations or (iii) if the Company relies on Rule 434 of the 1933
Act, a term sheet relating to the Shares that shall identify the preliminary
prospectus that it supplements containing such information as is required or
permitted by Rules 434, 430A and 424(b) of the 1933 Act. The Company also
may file a related registration statement with the Commission pursuant to
Rule 462(b) of the 1933 Act for the purpose of registering certain
additional shares of Common Stock, which registration statement will be
effective upon filing with the Commission. As filed, such amendment, any
registration statement filed pursuant to Rule 462(b) of the 1933 Act and any
term sheet and form of final prospectus, or such final prospectus, shall
include all Rule 430A Information (as defined below) and, except to the
extent that you shall agree in writing to a modification, shall be in all
respects in the form furnished to you prior to the date and time that this
Agreement was executed and delivered by the parties hereto, or, to the
extent not completed at such date and time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest preliminary prospectus) as the Company shall have previously advised
you in writing would be included or made therein.
The term "Registration Statement" as used in this Agreement shall mean
such registration statement at the time such registration statement becomes
effective and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Time (as hereinafter defined), shall also
mean such registration statement as so amended; provided, however, that such
term shall also include all Rule 430A Information contained in any
Prospectus and any Term Sheet (as hereinafter defined) and deemed to be
included in such registration statement at the time such registration
statement becomes effective as provided by Rule 430A of the 1933 Act
Regulations. The term "Preliminary Prospectus" shall mean any preliminary
prospectus referred to in the preceding paragraph and any preliminary
prospectus included in the Registration Statement at the time it becomes
effective that omits Rule 430A Information. The term "Prospectus" as used
in this Agreement shall mean (a) if the Company relies on Rule 434 of the
1933 Act Regulations, the Term Sheet relating to the Shares that is first
filed pursuant to Rule 424(b)(7) of the 1933 Act Regulations, together with
the Preliminary Prospectus identified therein that such Term Sheet
supplements or (b) if the Company does not rely on Rule 434 of the 1933 Act
Regulations, the prospectus relating to the Shares in the form in which it
is first filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations or, if no filing pursuant to Rule 424(b) of the 1933 Act
Regulations is required, shall mean the form of final prospectus included in
the Registration Statement at the time such Registration Statement becomes
effective. The term "Rule 430A Information" means information with respect
to the Shares and the offering thereof permitted pursuant to Rule 430A of
the 1933 Act Regulations to be omitted from the Registration
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Statement when it becomes effective. The term "462(b) Registration
Statement" means any registration statement filed with the Commission
pursuant to Rule 462(b) under the 1933 Act (including the Registration
Statement and any Preliminary Prospectus or Prospectus incorporated therein
at the time such registration statement becomes effective). The term "Term
Sheet" means any term sheet that satisfies the requirements of Rule 434 of
the 1933 Act Regulations. Any reference to the "date" of a Prospectus that
includes a Term Sheet shall mean the date of such Term Sheet.
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and no proceedings for that
purpose have been instituted or threatened by the Commission or the state
securities or blue sky authority of any jurisdiction, and each Preliminary
Prospectus and any amendment or supplement thereto, at the time of filing
thereof, conformed in all material respects to the requirements of the 1933
Act and the 1933 Act Regulations, and did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter expressly for use in the
Registration Statement or any 462(b) Registration Statement.
(c) When the Registration Statement and any 462(b) Registration
Statement shall become effective, when any Term Sheet that is part of the
Prospectus is filed with the Commission pursuant to Rule 434, when any
Prospectus is first filed pursuant to Rule 424(b) of the 1933 Act
Regulations, when any amendment to the Registration Statement or any 462(b)
Registration Statement becomes effective, and when any supplement to the
Prospectus or any Term Sheet is filed with the Commission and at the Closing
Time and Date of Delivery (as hereinafter defined), (i) the Registration
Statement, the 462(b) Registration Statement, the Prospectus, the Term Sheet
and any amendments thereof and supplements thereto will conform in all
material respects with the applicable requirements of the 1933 Act and the
1933 Act Regulations, and (ii) neither the Registration Statement, the
462(b) Registration Statement, the Prospectus, any Term Sheet nor any
amendment or supplement thereto will contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter expressly
for use in the Registration Statement or any 462(b) Registration Statement.
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of Delaware with
all requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus. The Company is duly
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qualified to transact business as a foreign corporation and is in good
standing in each of the jurisdictions in which the ownership or leasing of
its properties or the nature or conduct of its business as described in the
Registration Statement and the Prospectus requires such qualification,
except where the failure to do so would not have a material adverse effect
on the condition (financial or other), business, properties, net worth or
results of operations of the Company and the Subsidiaries (as hereinafter
defined) taken as a whole.
(e) All of the Company's subsidiaries are named on Schedule C (each a
"Subsidiary" and collectively the "Subsidiaries"). Each of the Subsidiaries
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the state of its incorporation with all requisite
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and the
Prospectus. Each such entity is duly qualified to do business and is in good
standing as a foreign corporation in each other jurisdiction in which the
ownership or leasing of its properties or the nature or conduct of its
business as described in the Registration Statement and the Prospectus
requires such qualification, except where the failure to do so would not
have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company and
such Subsidiaries, taken as a whole.
(f) The Company has full corporate right, power and authority to enter
into this Agreement, to issue, sell and deliver the Shares as provided
herein and to consummate the transactions contemplated herein. This
Agreement has been duly authorized, executed and delivered by the Company
and constitutes a valid and binding agreement of the Company, enforceable in
accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other laws
of general applicability relating to or affecting creditors' rights, or by
general principles of equity whether considered at law or at equity and
except to the extent enforcement of the indemnification provisions set forth
in Section 8 of this Agreement may be limited by federal or state securities
laws or the public policy underlying such laws.
(g) Each consent, approval, authorization, order, license,
certificate, permit, registration, designation or filing by or with any
governmental agency or body necessary for the valid authorization, issuance,
sale and delivery of the Shares, the execution, delivery and performance of
this Agreement and the consummation by the Company of the transactions
contemplated hereby has been made or obtained and is in full force and
effect, except as may be required under applicable state securities laws.
(h) Neither the issuance, sale and delivery by the Company of the
Shares, nor the execution, delivery and performance of this Agreement, nor
the consummation of the transactions contemplated hereby will conflict with
or result in a breach or violation of any of the terms and provisions of, or
(with or without the giving of notice or the passage of time or both)
constitute a default under the charter or bylaws of the Company or the
Subsidiaries, respectively, or under any indenture, mortgage, deed of trust,
loan agreement, note, lease or
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other agreement or instrument to which the Company or the Subsidiaries,
respectively, is a party or to which the Company or the Subsidiaries,
respectively, any of their respective properties or other assets is subject;
or any applicable statute, judgment, decree, order, rule or regulation of
any court or governmental agency or body applicable to any of the foregoing
or any of their respective properties; or result in the creation or
imposition of any lien, charge, claim or encumbrance upon any property or
asset of the Company or the Subsidiaries, respectively.
(i) The Shares to be issued and sold to the Underwriters hereunder
have been validly authorized by the Company. When issued, if not already
outstanding, and delivered against payment therefor as provided in this
Agreement, the Shares will be duly and validly issued, fully paid and
nonassessable. No preemptive rights of shareholders exist with respect to
any of the Shares which have not been satisfied or waived. No person or
entity holds a right to require or participate in the registration under the
1933 Act of the Shares pursuant to the Registration Statement which has not
been satisfied or waived; and, except as set forth in the Prospectus, no
person holds a right to require registration under the 1933 Act of any
shares of Common Stock of the Company at any other time which has not been
satisfied or waived.
(j) The Company's authorized, issued and outstanding capital stock is
as disclosed in the Prospectus. All of the issued shares of capital stock
of the Company have been duly authorized and validly issued, are fully paid
and nonassessable and conform to the description of the Company's capital
stock contained in the Prospectus.
(k) All of the issued shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and are owned directly or indirectly through another
Subsidiary by the Company free and clear of all liens, security interests,
pledges, charges, encumbrances, defects, shareholders' agreements, voting
trusts, equities or claims of any nature whatsoever, other than as provided
by the Bank Credit Facility (as defined in the Registration Statement).
Other than the Subsidiaries, the Company does not own, directly or
indirectly, any capital stock or other equity securities of any other
corporation or any ownership interest in any partnership, joint venture or
other association.
(l) Except as disclosed in the Prospectus, there are no outstanding
(i) securities or obligations of the Company or any of its Subsidiaries
convertible into or exchangeable for any capital stock of the Company or any
such Subsidiary, (ii) warrants, rights or options to subscribe for or
purchase from the Company or any such Subsidiary any such capital stock or
any such convertible or exchangeable securities or obligations, or (iii)
obligations of the Company or any such Subsidiary to issue any shares of
capital stock, any such convertible or exchangeable securities or
obligation, or any such warrants, rights or options.
(m) The Company and the Subsidiaries have good and marketable title to
all real property, if any, and good title to all personal property owned by
them, in each case free and clear of all liens, security interests, pledges,
charges, encumbrances, mortgages and defects,
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except such as are disclosed in the Prospectus, and except pursuant to a
Security Agreement entered into by and between the Company and the former
owners of Sub-Surface Tools, Inc., or such as do not materially and
adversely affect the value of such property and do not interfere with the
use made or proposed to be made of such property by the Company and the
Subsidiaries; and any real property and buildings held under lease by the
Company or any Subsidiary are held under valid, existing and enforceable
leases, with such exceptions as are disclosed in the Prospectus or are not
material and do not interfere with the use made or proposed to be made of
such property and buildings by the Company or such Subsidiary.
(n) The financial statements of the Company and its consolidated
Subsidiaries included in the Registration Statement and Prospectus present
fairly the financial position of the Company and its consolidated
Subsidiaries as of the dates indicated and the results of operations and
cash flows for the Company and its consolidated Subsidiaries for the periods
specified, all in conformity with generally accepted accounting principles
applied on a consistent basis. The financial statements of Stabil Drill
Specialities, Inc. ("Stabil Drill") included in the Registration Statement
and Prospectus present fairly the financial position of Stabil Drill as of
the dates indicated and the results of operations and cash flows for Stabil
Drill for the periods specified, all in conformity with generally accepted
accounting principles applied on a consistent basis. The financial
statements of Sub-Surface Tools, Inc. ("Sub-Surface") included in the
Registration Statement and Prospectus present fairly the financial position
of Sub-Surface as of the dates indicated and the results of operations and
cash flows for Sub-Surface for the periods specified, all in conformity with
generally accepted accounting principles applied on a consistent basis. The
financial statement schedules included in the Registration Statement and the
historical financial amounts in the Prospectus under the captions
"Prospectus Summary -- Summary Consolidated Financial Data",
"Capitalization" and "Selected Consolidated Financial Data" fairly present
the information shown therein and have been compiled on a basis consistent
with the historical financial statements included in the Registration
Statement and the Prospectus. The unaudited pro forma financial information
(including the related notes) included in the Prospectus or any Preliminary
Prospectus complies as to form in all material respects to the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations, and
management of the Company believes that the assumptions underlying the pro
forma adjustments are reasonable. Such pro forma adjustments have been
properly applied to the historical amounts in the compilation of the
information and such information fairly presents with respect to the Company
and the Subsidiaries, the financial position, results of operations and
other information purported to be shown therein at the respective dates and
for the respective periods specified.
(o) KPMG Peat Marwick L.L.P., who have examined and are reporting upon
the audited financial statements and schedules of the Company, Stabil Drill
and Sub-Surface included in the Registration Statement, are, and were during
the periods covered by their reports included in the Registration Statement
and the Prospectus, independent public accountants within the meaning of the
1933 Act and the 1933 Act Regulations.
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(p) None of the Company or the Subsidiaries has sustained, since
December 31, 1996, any material loss or interference with its business from
fire, explosion, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any labor dispute or arbitrators' or court
or governmental action, order or decree; and, since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, and except as otherwise stated in the Registration Statement and
Prospectus, there has not been (i) any material change in the capital stock,
long-term debt, obligations under capital leases or short-term borrowings of
the Company, or the Subsidiaries, or (ii) any material adverse change, or
any development which could reasonably be seen as involving a prospective
material adverse change, in or affecting the business, prospects,
properties, assets, results of operations or condition (financial or other)
of the Company or the Subsidiaries.
(q) Neither the Company nor its Subsidiaries is in violation of its
respective charter, or by-laws, and no default exists, and no event has
occurred, nor state of facts exists, which, with notice or after the lapse
of time to cure or both, would constitute a default in the due performance
and observance of any obligation, agreement, term, covenant, consideration
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to which any such
entity is a party or to which any such entity or any of its properties is
subject. None of the Company or its Subsidiaries is in violation of, or in
default with respect to, any statute, rule, regulation, order, judgment or
decree, except as may be properly described in the Prospectus or such as in
the aggregate do not now have and will not in the future have a material
adverse effect on the financial position, results of operations or business
of the Company and the Subsidiaries, taken as a whole.
(r) There is not pending or threatened any action, suit, proceeding,
inquiry or investigation against the Company, the Subsidiaries or any of
their respective officers and directors or to which the properties, assets
or rights of any such entity are subject, before or brought by any court or
governmental agency or body or board of arbitrators that is required to be
described in the Registration Statement or the Prospectus but is not
described as required.
(s) The descriptions in the Registration Statement and the Prospectus
of the contracts, leases and other legal documents therein described present
fairly the information required to be shown, and there are no contracts,
leases, or other documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement which are not described
or filed or incorporated by reference as required.
(t) The Company owns, possesses or has obtained all material permits,
licenses, franchises, certificates, consents, orders, approvals and other
authorizations of governmental or regulatory authorities or other entities
as are necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted, or as
contemplated in the Prospectus to be conducted, and the Company has not
received any notice
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of proceedings relating to revocation or modification of any such licenses,
permits, franchises, certificates, consents, orders, approvals or
authorizations.
(u) The Company owns or possesses adequate license or other rights to
use all patents, trademarks, service marks, trade names, copyrights,
software and design licenses, trade secrets, manufacturing processes, other
intangible property rights and know-how (collectively "Intangibles")
necessary to entitle the Company to conduct its business as described in the
Prospectus, and the Company has not received notice of infringement of or
conflict with (and knows of no such infringement of or conflict with)
asserted rights of others with respect to any Intangibles which could
materially and adversely affect the business, prospects, properties, assets,
results of operations or condition (financial or otherwise) of the Company.
(v) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets, (iii) access to assets
is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences; and, none of the Company, the Subsidiaries,
or any employee or agent thereof, has made any payment of funds of the
Company or the Subsidiaries, or received or retained any funds and no funds
of the Company or the Subsidiaries have been set aside to be used for any
payment, in each case in violation of any law, rule or regulation.
(w) Each of the Company and the Subsidiaries has filed on a timely
basis all necessary federal, state, local and foreign income and franchise
tax returns required to be filed through the date hereof and have paid all
taxes shown as due thereon; and no tax deficiency has been asserted against
any such entity, nor does any such entity know of any tax deficiency which
is likely to be asserted against any such entity which if determined
adversely to any such entity, could materially adversely affect the
business, prospects, properties, assets, results of operations or condition
(financial or otherwise) of any such entity, respectively. All tax
liabilities are adequately provided for on the respective books of such
entities.
(x) The Company and its Subsidiaries maintain insurance (issued by
insurers of recognized financial responsibility) of the types and in the
amounts generally deemed adequate for their respective businesses and
consistent with insurance coverage maintained by similar companies in
similar businesses, including, but not limited to, insurance covering real
and personal property owned or leased by the Company and its Subsidiaries
against theft, damage, destruction, acts of vandalism and all other risks
customarily insured against, all of which insurance is in full force and
effect.
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(y) Each of the Company, the Subsidiaries, and their officers,
directors or affiliates has not taken and will not take, directly or
indirectly, any action designed to, or that might reasonably be expected to,
cause or result in or constitute the stabilization or manipulation of any
security of the Company or to facilitate the sale or resale of the Shares.
(z) The Company is not, will not become as a result of the
transactions contemplated hereby, or will not conduct its respective
businesses in a manner in which the Company would become, "an investment
company," or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
Section 2. Representations and Warranties of the Selling Stockholders.
Each of the Selling Stockholders represents and warrants to, and agrees with,
each of the several Underwriters and the Company that:
(a) Such Selling Stockholder has duly executed and delivered this
Agreement and this Agreement constitutes the valid and binding agreement of
such Selling Stockholder enforceable against such Selling Stockholder in
accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other laws
of general applicability relative to or affecting creditors' rights
generally or by general principles of equity whether considered at law or
equity and except to the extent enforcement of the indemnification
provisions set forth in Section 8 of this Agreement may be limited by
federal or state securities laws or the public policy underlying such laws.
(b) No consent, approval, authorization, order or declaration of or
from, or registration, qualification or filing with, any court or
governmental agency or body is required for the sale of the Shares to be
sold by such Selling Stockholder or the consummation of the transactions
contemplated by this Agreement, except the registration of such Shares under
the 1933 Act (which, if the Registration Statement is not effective as of
the time of execution hereof, shall be obtained as provided in this
Agreement) and such as may be required under state securities or blue sky
laws in connection with the offer, sale and distribution of such Shares by
the Underwriters.
(c) The sale of the Shares to be sold by such Selling Stockholder and
the performance of this Agreement and the consummation of the transactions
herein contemplated will not conflict with, or (with or without the giving
of notice or the passage of time or both) result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which such Selling Stockholder is a party or to which any
of its properties or assets is subject, nor will such action conflict with
or violate any provision of the charter or bylaws of such Selling
Stockholder or any statute, rule or regulation or any order, judgment or
decree of any court or governmental agency or body having jurisdiction over
such Selling Stockholder or any of such Selling Stockholder's properties or
assets.
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(d) Such Selling Stockholder has good and valid title to the Shares to
be sold by such Selling Stockholder hereunder, free and clear of all liens,
security interests, pledges, charges, encumbrances, defects, shareholders'
agreements, voting trusts, equities or claims of any nature whatsoever; and,
upon delivery of such Shares against payment therefor as provided herein,
good and valid title to such Shares, free and clear of all liens, security
interests, pledges, charges, encumbrances, defects, shareholders'
agreements, voting trusts, equities or claims of any nature whatsoever, will
pass to the several Underwriters.
(e) Such Selling Shareholder has not taken, and will not take,
directly or indirectly, any action that is designed to, or that might
reasonably be expected to, cause or result in or constitute the
stabilization or manipulation of any security of the Company or to
facilitate the sale or resale of the Shares.
Section 3. Sale and Delivery of the Shares to the Underwriters; Closing
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each of the Underwriters the Firm
Company Shares, and each of the Selling Stockholders agrees to sell to each
of the Underwriters the number of Firm Selling Stockholder Shares set forth
opposite the name of such Selling Stockholder under the caption "Number of
Firm Shares to be Sold" in Schedule B, and each Underwriter agrees,
severally and not jointly, to purchase from the Company and the Selling
Stockholders, at the Closing Time (as defined below), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule A (the
proportion which each Underwriter's share of the total number of the Firm
Shares bears to the total number of Firm Shares is hereinafter referred to
as such Underwriter's "underwriting obligation proportion"), at a purchase
price of $_____ per share.
(b) In addition, on the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth,
the Selling Stockholders hereby grant an option to the Underwriters to
purchase, severally and not jointly, up to an additional 900,000 Option
Shares at the same purchase price as shall be applicable to the Firm Shares.
In the event that the Underwriters exercise such option for the full number
of Option Shares, each Selling Stockholder will sell to the Underwriter the
number of Option Shares set forth opposite the name of such Selling
Stockholder under the caption "Number of Option Shares to be Sold" in
Schedule B. In the event that the Underwriters exercise such option for
772,494 Option Shares or less, then Xxxxxxx X. Xxxx shall sell to the
Underwriters such number of Option Shares. In the event that the
Underwriters exercise such option for more than 772,494 Option Shares but
less than the full number of Option Shares, (i) Xxxxxxx X. Xxxx shall sell
to the Underwriters 772,494 Option Shares and (ii) the Selling Stockholders
(including Xxxxxxx X. Xxxx) shall sell to the Underwriters a number of
Option Shares equal to the difference between the number of Option Shares as
to which the Underwriters have exercised such option and 772,494 (the
"Remaining Exercised Option Shares"), with each such Selling Stockholder to
sell that number of Option Shares as shall be equal to his proportionate
share
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of Remaining Exercised Option Shares as determined by the relation by which
the number of Option Shares set forth opposite the name of such Selling
Stockholder bears to 127,506. The option hereby granted will expire if not
exercised within the thirty (30) day period after the date of the
Prospectus by giving written notice to the Company. The option granted
hereby may be exercised in whole or in part (but not more than once) by you,
as representatives of the Underwriters, only for the purpose of covering
over-allotments that may be made in connection with the offering and
distribution of the Firm Shares. The notice of exercise shall set forth the
number of Option Shares as to which the several Underwriters are exercising
the option, and the time and date of payment therefor and of issuance and
delivery thereof. Such time and date of payment, issuance and delivery (the
"Date of Delivery") shall be determined by you but shall not be later than
three full business days after the exercise of such option, nor in any event
prior to the Closing Time. If the option is exercised as to all or any
portion of the Option Shares, the Option Shares as to which the option is
exercised shall be purchased by the Underwriters, severally and not jointly,
in their respective underwriting obligation proportions.
(c) Payment of the purchase price for and delivery of certificates in
definitive form representing the Firm Shares shall be made at the offices of
Xxxxxxx Rice & Company L.L.C., 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxx 00000 or at such other place as shall be agreed upon by the
Company and you, at 10:00 a.m. New York time, either (i) on the third full
business day after the execution of this Agreement, or (ii) at such other
time not more than ten full business days thereafter as you and the Company
shall determine (unless, in either case, postponed pursuant to the term
hereof), (such date and time of payment and delivery being herein called the
"Closing Time"). In addition, in the event that any or all of the Option
Shares are purchased by the Underwriters, payment of the purchase price for
and delivery of certificates in definitive form representing the Option
Shares shall be made at the offices of Xxxxxxx Xxxx & Company L.L.C. in the
manner set forth above, or at such other place as the Company and you shall
determine, on the Date of Delivery as specified in the notice from you to
the Company and the Selling Stockholders. Payment for the Firm Shares and
the Option Shares shall be made to the Company and the Selling Stockholders
by wire transfer in same-day funds to the accounts designated to the
Underwriters in writing by the Company against delivery to you for the
respective accounts of the Underwriters of the Shares to be purchased by
them.
(d) The certificates representing the Shares to be purchased by the
Underwriters shall be in such denominations and registered in such names as
you may request in writing at least two full business days before the
Closing Time or the Date of Delivery, as the case may be. The certificates
representing the Shares will be made available at the offices of Xxxxxxx
Rice & Company L.L.C. or at such other place as Xxxxxxx Xxxx & Company
L.L.C. may designate for examination and packaging not later than 10:00 a.m.
New York time at least one full business day prior to the Closing Time or
the Date of Delivery, as the case may be.
11
(e) After the Registration Statement becomes effective, you intend to
offer the Shares to the public as set forth in the Prospectus, but after the
initial public offering of such Shares you may in your discretion vary the
public offering price.
Section 4. Certain Covenants of the Company. The Company covenants
and agrees with each Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective (if not yet effective at the date and time
that this Agreement is executed and delivered by the parties hereto). If the
Company elects to rely upon Rule 430A of the 1933 Act Regulations or the
filing of the Prospectus is otherwise required under Rule 424(b) of the 1933
Act Regulations, the Company will comply with the requirements of Rule 430A
and will file the Prospectus, properly completed, pursuant to the applicable
provisions of Rule 424(b), or a Term Sheet pursuant to and in accordance
with Rule 434, within the time period prescribed. If the Company elects to
rely upon Rule 462(b), the Company shall file a 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m.,
Washington, D.C. time on the date of this Agreement, and the Company shall
at the time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions for the
payment of such fee. The Company will notify you immediately, and confirm
the notice in writing, (i) when the Registration Statement, 462(b)
Registration Statement or any post-effective amendment to the Registration
Statement, shall have become effective, or any supplement to the Prospectus
or any amended Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission to
amend the Registration Statement or 462(b) Registration Statement or amend
or supplement the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or any 462(b) Registration Statement or of any
order preventing or suspending the use of any Preliminary Prospectus or the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, or of the institution or threatening of any proceeding for any
such purposes. The Company will use every reasonable effort to prevent the
issuance of any such stop order or of any order preventing or suspending
such use and, if any such order is issued, to obtain the withdrawal thereof
at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the
Registration Statement, or any amendment or supplement (i) to the
Prospectus, if the Company has not elected to rely upon Rule 430A, (ii) if
the Company has elected to rely upon Rule 430A, to either the Prospectus
included in the Registration Statement at the time it becomes effective or
to the Prospectus filed in accordance with Rule 424(b) or any Term Sheet
filed in accordance with Rule 434, or (iii) if the Company has elected to
rely upon Rule 462(b), to any 462(b) Registration Statement in any case if
you shall not have previously been advised and furnished a copy thereof a
reasonable time prior to the proposed filing, or if you or counsel for the
Underwriters shall object to such amendment or supplement.
12
(c) The Company has furnished or will furnish to you, at its expense,
as soon as available, four copies of the Registration Statement as
originally filed and of all amendments thereto, whether filed before or
after the Registration Statement becomes effective, copies of all exhibits
and documents filed therewith and signed copies of all consents and
certificates of experts, as you may reasonably request, and has furnished or
will furnish to each Underwriter, one conformed copy of the Registration
Statement as originally filed and of each amendment thereto.
(d) The Company will deliver to each Underwriter, at the Company's
expense, from time to time, as many copies of each Preliminary Prospectus as
such Underwriter may reasonably request, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The Company
will deliver to each Underwriter, at the Company's expense, as soon as the
Registration Statement shall have become effective and thereafter from time
to time as requested during the period when the Prospectus is required to be
delivered under the 1933 Act, such number of copies of the Prospectus (as
supplemented or amended) as each Underwriter may reasonably request. The
Company will comply to the best of its ability with the 1933 Act and the
1933 Act Regulations so as to permit the completion of the distribution of
the Shares as contemplated in this Agreement and in the Prospectus. If the
delivery of a prospectus is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus or any Term Sheet in
connection with the offering or sale of the Shares and if at such time any
events shall have occurred as a result of which the Prospectus or any Term
Sheet 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 light of the circumstances under which they were
made when such Prospectus or any Term Sheet is delivered, not misleading,
or, if for any reason it shall be necessary during such same period to amend
or supplement the Prospectus or any Term Sheet in order to comply with the
1933 Act or the rules and regulations thereunder, the Company will notify
you and upon your request prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may from
time to time reasonably request of an amended Prospectus or any Term Sheet
or a supplement to the Prospectus or any Term Sheet or an amendment or
supplement to any such incorporated document which will correct such
statement or omission or effect such compliance, and in case any Underwriter
is required to deliver a prospectus in connection with sales of any of the
Shares at any time nine months or more after the time of issue of the
Prospectus or any Term Sheet, upon your request but at the expense of such
Underwriter, the Company will prepare and deliver to such Underwriter as
many copies as you may request of an amended or supplemented Prospectus or
any Term Sheet complying with Section 10(a)(3) of the 1933 Act.
(e) The Company will use its best efforts to qualify the Shares for
offering and sale under the applicable securities laws of such states and
other jurisdictions as you may designate and to maintain such qualifications
in effect for as long as may be necessary to complete the distribution of
the Shares; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation
13
in any jurisdiction in which it is not so qualified or to make any
undertakings in respect of doing business in any jurisdiction in which it is
not otherwise so subject. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the Shares have
been qualified as above provided.
(f) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than the end of the
fiscal quarter first occurring after the first anniversary of the "effective
date of the Registration Statement" (as defined in Rule 158(c) of the 1933
Act Regulations), an earnings statement (in reasonable detail but which need
not be audited) complying with the provisions of Section 11(a) of the 1933
Act and Rule 158 thereunder.
(g) The Company will use the net proceeds received by it from the sale
of the Shares in the manner specified in the Prospectus under the caption
"Use of Proceeds."
(h) During a period of five years after the date hereof, the Company
will furnish to you: (i) concurrently with furnishing to its
securityholders, copies of any statements of operations of the Company for
each of the first three quarters furnished to the Company's
securityholders; (ii) concurrently with furnishing to its securityholders, a
balance sheet of the Company as of the end of such fiscal year, together
with statements of operations, of cash flows and of securityholders' equity
of the Company for such fiscal year, accompanied by a copy of the
certificate or report thereon of independent public accountants; (iii) as
soon as they are available, copies of all reports (financial or otherwise)
mailed to securityholders; and (iv) as soon as they are available, copies of
all reports and financial statements furnished to or filed with the
Commission, any securities exchange or the National Association of
Securities Dealers, Inc. (the "NASD"). During such five-year period, the
foregoing financial statements shall be on a consolidated basis to the
extent that the accounts of the Company are consolidated with any
subsidiaries, and shall be accompanied by similar financial statements for
any significant subsidiary that is not so consolidated.
(i) During the period beginning from the date hereof and continuing to
and including the date 120 days after the date of the Prospectus, the
Company will not, without the prior written consent of Xxxxxxx Rice &
Company L.L.C. offer, pledge, issue, sell, contract to sell, grant any
option for the sale of, or otherwise dispose of, or announce any offer,
pledge, sale, grant of any option to purchase or other disposition of,
directly or indirectly, any shares of Common Stock or securities convertible
into, exercisable for or exchangeable for shares of Common Stock, except as
provided in Section 3 of this Agreement, pursuant to the Company's 1995
Stock Incentive Plan or in connection with acquisitions of businesses or
assets by the Company.
(j) The Company will maintain a transfer agent and, if necessary under
the jurisdiction of incorporation of the Company, a registrar (which may be
the same entity as the transfer agent) for its Common Stock.
14
(k) The Company will cause the Shares to be listed, subject to notice
of issuance, on the Nasdaq Stock Market and will use commercially reasonable
best efforts to maintain the listing of the Shares on the Nasdaq Stock
Market.
(l) The Company is familiar with the Investment Company Act of 1940,
as amended, and the rules and regulations thereunder, and has in the past
conducted its affairs, and will in the future conduct its affairs, in such a
manner so as to ensure that the Company was not and will not be an
"investment company" or an entity "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(m) The Company will not, and will use its best efforts to cause its
officers, directors and affiliates not to, in violation of Regulation M of
the 1934 Act Regulations, (i) take, directly or indirectly prior to
termination of the underwriting syndicate contemplated by this Agreement,
any action designed to stabilize or manipulate the price of any security of
the Company, or which may cause or result in, or which might in the future
reasonably be expected to cause or result in, the stabilization or
manipulation of the price of any security of the Company, to facilitate the
sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay
anyone any compensation for soliciting purchases of the Shares or (iii) pay
or agree to pay to any person any compensation for soliciting any order to
purchase any other securities of the Company.
(n) If at any time during the 30-day period after the Registration
Statement becomes effective, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in your reasonable
opinion the market price of the Common Stock has been or is likely to be
materially affected (regardless of whether such rumor, publication or event
necessitates a supplement to or amendment of the Prospectus) and after
written notice from you advising the Company to the effect set forth above,
the Company agrees to consult with you concerning the substance and
dissemination of a press release or other public statement responding to or
commenting on such rumor, publication or event.
Section 5. Covenants of the Selling Stockholders. The Selling
Stockholders covenant and agree with each of the Underwriters that the Selling
Stockholders will not, in violation of Regulation M of the 1934 Act Regulations,
(i) take, directly or indirectly, prior to the termination of the underwriting
syndicate contemplated by this Agreement, any action designed to cause or to
result in, or that might reasonably be expected to constitute, the stabilization
or manipulation of the price of any security of the Company to facilitate the
sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay anyone
any compensation for soliciting purchases of, the Shares or (iii) pay to or
agree to pay any person any compensation for soliciting another to purchase any
other securities of the Company.
Section 6. Payment of Expenses. The Company will pay and bear all
costs, fees and expenses incident to the performance of its obligations under
this Agreement (excluding fees and expenses of counsel for the Underwriters,
except as specifically set forth below), including (a) the
15
preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), as originally filed and as
amended, the Preliminary Prospectuses, the Prospectus and any Term Sheet and any
amendments or supplements thereto, and the cost of furnishing copies thereof to
the Underwriters, (b) the preparation, printing and distribution of this
Agreement, the certificates representing the Shares, the memoranda relating to
compliance with state securities laws ("Blue Sky Memoranda") and any instruments
relating to any of the foregoing, (c) the issuance and delivery of the Shares to
the Underwriters, including any transfer taxes payable upon the sale of the
Shares to the Underwriters (other than transfer taxes on resales by the
Underwriters), (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Shares under the applicable state
securities laws in accordance with the terms of this Agreement, including filing
fees and fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Memoranda, (f)
all costs, fees and expenses in connection with the notification to the Nasdaq
Stock Market of the proposed issuance of the Shares, (g) filing fees relating to
the review of the offering by the NASD, (h) the transfer agent's and registrar's
fees and all miscellaneous expenses referred to in Part II of the Registration
Statement, (i) costs related to travel and lodging incurred by the Company and
its representatives relating to meetings with and presentations to prospective
purchasers of the Shares reasonably determined by the Underwriters to be
necessary or desirable to effect the sale of the Shares to the public, and (j)
all other costs and expenses incident to the performance of the Company's
obligations hereunder (including costs incurred in closing the purchase of the
Option Shares, if any) that are not otherwise specifically provided for in this
section. The Company, upon your request, will provide funds in advance for
filing fees in connection with "blue sky" qualifications.
If the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 7 hereof
is not satisfied, because of any termination pursuant to Section 10 hereof or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of default by any of the Underwriters, the Company will reimburse the
Underwriters severally on demand for all reasonable out-of-pocket expenses,
including fees and disbursements of Underwriters' counsel, reasonably incurred
by the Underwriters in reviewing the Registration Statement and the Prospectus,
and in investigating and making preparations for the marketing of the Shares.
Section 7. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase and pay for (i) the Firm Shares that they have
respectively agreed to purchase pursuant to this Agreement (and any Option
Shares as to which the option granted in Section 3 has been exercised and the
Date of Delivery determined by you is the same as the Closing Time) at the
Closing Time and (ii) the Option Shares at the Date of Delivery of the Option
Shares, are subject to
16
the accuracy of the representations and warranties of the Company contained
herein as of the Closing Time or the Date of Delivery, as the case may be, and
to the accuracy of the representations and warranties of the Company contained
in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 p.m. on the date of this Agreement or, with your consent, at a
later time and date not later, however, than 5:30 p.m. New York time on the
first business day following the date hereof, or at such later time or on
such later date as you may agree to in writing; if the Company has elected
to rely upon Rule 462(b), the 462(b) Registration Statement shall have
become effective by 10:00 p.m. New York time, Washington, D.C. time, on the
date of this Agreement; and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement or any 462(b) Registration
Statement shall have been issued under the 1933 Act and no proceedings for
that purpose shall have been instituted or shall be pending or, to your
knowledge or the knowledge of the Company, shall be contemplated by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the satisfaction of counsel for
the Underwriters. If the Company has elected to rely upon Rule 430A, a
Prospectus or a Term Sheet containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 424(b) (or a post-
effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A).
(b) At the Closing Time, you shall have received a favorable opinion
of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel
for the Company, dated as of the Closing Time, together with signed or
reproduced copies of such opinion for each of the other Underwriters, in
form and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware with the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus. The Company is
qualified to transact business as a foreign corporation and is in
good standing in each of the jurisdictions in which the ownership
or leasing of the Company's properties or the nature or conduct of
its business requires such qualification, except where the failure
to do so would not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries taken as a whole.
(ii) Each of the Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
state of its
17
incorporation. Each such entity has all requisite corporate power
and authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement and the
Prospectus. Each such entity is duly qualified to do business and
is in good standing as a foreign corporation in each other
jurisdiction in which the ownership or leasing of its properties
or the nature or conduct of its business requires such
qualification, except where the failure to do so would not have a
material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the
Company and the Subsidiaries taken as a whole.
(iii) The Company has the corporate power and authority to enter into
this Agreement, to issue, sell and deliver the Shares as provided
herein and to consummate the transactions contemplated herein.
This Agreement has been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and
delivery by the Underwriters, constitutes a valid and binding
agreement of the Company, enforceable in accordance with its
terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other laws
affecting creditors' rights or by general principles of equity
whether considered at law or in equity, except to the extent that
enforcement of the indemnification provisions set forth in Section
8 of this Agreement may be limited by federal or state securities
laws or the public policy underlying such laws and except that no
opinion need be expressed as to the effect of the first sentence
of Section 15 of this Agreement as to the laws of the State of
Louisiana.
(iv) Each consent, approval, authorization, order, license,
certificate, permit, registration, designation or filing by or
with any governmental agency or body necessary for the valid
authorization, issuance, sale and delivery of the Shares, the
execution, delivery and performance of this Agreement and the
consummation by the Company of the transactions contemplated
hereby, has been made or obtained and is in full force and effect,
except such as may be necessary under state securities laws or
required by the NASD in connection with the purchase and
distribution of the Shares by the Underwriters, as to which such
counsel need express no opinion.
(v) Neither the issuance, sale and delivery by the Company of the
Shares, nor the execution, delivery and performance of this
Agreement, nor the consummation of the transactions contemplated
hereby will conflict with or result in a breach or violation of
any of the terms and provisions of, or (with or without the giving
notice or the passage of time or both) constitute a default under,
(i) the charter or by-laws of the Company or the Subsidiaries,
respectively, or, to such counsel's knowledge after due inquiry,
under any indenture, mortgage, deed of trust, loan agreement,
note, lease or other
18
agreement or instrument to which the Company or the Subsidiaries,
respectively, is a party or to which the Company or the
Subsidiaries, respectively, any of their respective properties or
other assets, is subject, (ii) to such counsel's knowledge, any
applicable statute, judgment, decree, order, rule or regulation of
any court or governmental agency or body, or (iii) to such
counsel's knowledge, result in the creation or imposition of any
lien, charge, claim or encumbrance upon any property or asset of
the Company or the Subsidiaries, respectively.
(vi) The Common Stock conforms in all material respects as to legal
matters to the description thereof contained in the Registration
Statement and the Prospectus under the heading "Description of
Capital Stock."
(vii) The Shares to be issued and sold to the Underwriters hereunder
have been validly authorized by the Company. When issued, if not
already outstanding, and delivered against payment therefor as
provided in this Agreement, such shares will be validly issued,
fully paid and nonassessable. To such counsel's knowledge, no
preemptive rights of shareholders exist with respect to any of the
Shares which have not been satisfied or waived. To such counsel's
knowledge, no person or entity holds a right to require or
participate in the registration under the 1933 Act of the Shares
pursuant to the Registration Statement which has not been satisfied
or waived and, except as set forth in the Prospectus, no person
holds a right to require registration under the 1933 Act of any
shares of Common Stock of the Company at any other time which has
not been satisfied or waived. The form of certificates evidencing
the Shares complies with all applicable requirements of Delaware
law.
(viii) The Company has an authorized capitalization as set forth in the
Prospectus under the caption "Capitalization." All of the issued
shares of capital stock of the Company have been duly authorized
and validly issued, are fully paid and nonassessable. None of the
issued shares of capital stock of the Company has been issued or is
owned or held in violation of any preemptive rights of
shareholders.
(ix) All of the issued shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and, to such counsel's knowledge after
due inquiry, are owned directly, or indirectly through another
Subsidiary, by the Company free and clear of all liens, security
interests, pledges, charges, encumbrances, defects, shareholders'
agreements, voting trusts, equities or claims of any nature
whatsoever except security interests disclosed in the Prospectus
and as provided by the Bank Credit Facility. To such counsel's
knowledge after due inquiry, other than the Subsidiaries, the
Company does not own, directly or indirectly, any
19
capital stock or other equity securities of any other corporation
or any ownership interest in any partnership, joint venture or
other association.
(x) Except as disclosed in the Prospectus, to such counsel's knowledge
after due inquiry, there are no outstanding (i) securities or
obligations of the Company or any of its Subsidiaries convertible
into or exchangeable for any capital stock of the Company or any
such Subsidiary, (ii) warrants, rights or options to subscribe for
or purchase from the Company or any such Subsidiary any such
capital stock or any such convertible or exchangeable securities or
obligations, or (iii) obligations of the Company or any such
Subsidiary to issue any shares of capital stock, any such
convertible or exchangeable securities or obligation, or any such
warrants, rights or options.
(xi) Neither the Company nor its Subsidiaries is in violation of their
respective charters or by-laws, and, to such counsel's knowledge
after due inquiry, no material default exists, and no event has
occurred nor state of facts exist which, with notice or after the
lapse of time to cure or both, would constitute a material default
in the due performance and observance of any obligation, agreement,
term, covenant, or condition contained in any indenture, mortgage,
deed of trust, loan agreement, note, lease or other agreement or
instrument to which any such entity is a party or to which any such
entity or any of its properties is subject.
(xii) To such counsel's knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation against the
Company, the Subsidiaries or any of their respective officers and
directors or to which the properties, assets or rights of any such
entity are subject, before or brought by any court or governmental
agency or body or board of arbitrators, that is required to be
described in the Registration Statement or the Prospectus but is
not described as required.
(xiii) The descriptions in the Registration Statement and the
Prospectus of the contracts, leases and other legal documents
therein described present fairly the information required to be
shown and there are no contracts, leases or other documents known
to such counsel of a character required to be described in the
Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement
which are not described or filed or incorporated by reference as
required.
(xiv) The Shares have been approved for listing on the Nasdaq Stock
Market.
(xv) The Registration Statement and any 462(b) Registration Statement
have become effective under the 1933 Act and, to the knowledge of
such counsel,
20
no stop order suspending the effectiveness of the Registration
Statement or any 462(b) Registration Statement has been issued
and no proceeding for that purpose has been instituted or is
pending or contemplated under the 1933 Act. Other than financial
statements and other financial and operating data and schedules
contained therein, as to which counsel need express no opinion,
the Registration Statement, any 462(b) Registration Statement,
all Preliminary Prospectuses, the Prospectus and any amendment or
supplement thereto, appear on their face to conform as to form in
all material respects with the requirements of the 1933 Act and
the rules and regulations thereunder.
(xvi) The Company is not, or solely as a result of the consummation of
the transactions contemplated hereby will not become, an
"investment company," or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of
1940, as amended.
(xvii) The descriptions in the Prospectus of statutes, regulations,
legal or governmental proceedings are accurate and present fairly
a summary of the information required to be shown under the 1933
Act and the 1933 Act Regulations.
Such counsel also shall state that they have no reason to believe
that the Registration Statement, any 462(b) Registration Statement or
any further amendment thereto made prior to the Closing Time or the Date
of Delivery, as the case may be, on its effective date and as of the
Closing Time or the Date of Delivery, as the case may be, contained or
contains any untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus, or
any amendment or supplement thereto made prior to the Closing Time or
the Date of Delivery, as the case may be, as of its issue date and as of
the Closing Time or the Date of Delivery, as the case may be, contained
or contains any untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (provided that such counsel need express no belief regarding
the financial statements and related schedules and other financial data
contained in the Registration Statement, any 462(b) Registration
Statement, any amendment thereto, or the Prospectus, or any amendment or
supplement thereto).
In rendering the opinions set forth in Section 7(b), such counsel
may rely on the following:
21
(A) as to matters involving the application of laws other than
the laws of the United States and jurisdictions in which they are
admitted, to the extent such counsel deems proper and to the extent
specified in such opinion, upon an opinion or opinions (in form and
substance reasonably satisfactory to Underwriters' counsel) of other
counsel familiar with the applicable laws, and
(B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and certificates or
other written statements of officers or departments of various
jurisdictions having custody of documents respecting the existence or
good standing of the Company, provided that copies of all such opinions,
statements or certificates shall be delivered to Underwriters' counsel.
The opinion of counsel for the Company shall state that the opinion of any other
counsel, or certificate or written statement, on which such counsel is relying
is in form satisfactory to such counsel and their belief that you and they are
justified in relying thereon.
(c) At the Closing Time, you shall have received a favorable opinion
of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel
for the Selling Stockholders, dated as of the Closing Time, together with
signed or reproduced copies of such opinion for each of the Underwriters in
form and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) This Agreement has been duly executed and delivered by each of the
Selling Stockholders, the sale of the Shares to be sold by the
Selling Stockholders at such Closing Time and the performance of
this Agreement and the consummation of the transactions herein
contemplated, to such counsel's knowledge after due inquiry, will
not conflict with or (with or without the giving of notice or the
passage of time or both) result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which any of the Selling
Stockholders is a party or to which any of their respective
properties or assets is subject, nor, to such counsel's knowledge
after due inquiry, will such action conflict with or violate any
statute, rule or regulation or any order, judgment or decree of any
court or governmental agency or body having jurisdiction over any
of the Selling Stockholders or any of the Selling Stockholders'
properties or assets.
(ii) No consent, approval, authorization, order or declaration of or
from, or registration, qualification or filing with, any court or
governmental agency or body is required for the sale of the Shares
being sold by the Selling Stockholders or the consummation of the
transactions contemplated by this Agreement, except the
registration of such Shares under the Act and such as
22
may be required under state securities or blue sky laws in
connection with the offer, sale and distribution of such Shares by
the Underwriters.
(iii) Each of the Selling Stockholders has good and valid title to the
Shares being sold by such Selling Stockholder hereunder, free and
clear of all security interests, liens, encumbrances, equities or
other claims, and, to such counsel's knowledge, shareholders'
agreements or voting trusts; and, upon purchase of the Shares to
be sold by the Selling Stockholders as provided in this Agreement,
each of the Underwriters (assuming that it is a bona fide
purchaser within the meaning of the Uniform Commercial Code of the
State of Louisiana) will acquire good and marketable title to such
Shares, free and clear of all security interests, liens,
encumbrances, equities or other claims.
In rendering the opinions set forth in Section 7(c), such counsel
may rely on the following:
(1) as to matters involving the application of laws other than
the laws of the United States and jurisdictions in which they are
admitted, to the extent such counsel deems proper and to the extent
specified in such opinion, upon an opinion or opinions (in form and
substance reasonably satisfactory to Underwriters' counsel) of other
counsel familiar with the applicable laws, and
The opinion of counsel for the Selling Stockholders, shall state that the
opinion of any other counsel, or certificate or written statement, on which such
counsel is relying is in form satisfactory to such counsel and that you and they
are justified in relying thereon.
(d) At the Closing Time, you shall have received a favorable opinion
from Xxxxxxx & Xxxxx L.L.P., counsel for the Underwriters, dated as of the
Closing Time, with respect to the incorporation of the Company, the issuance
and sale of the Shares, the Registration Statement, the Prospectus and other
related matters as the Underwriters 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 on such matters.
(e) At the Closing Time, (i) the Registration Statement, any 462(b)
Registration Statement, and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be stated
therein under the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations; the Company shall have complied in all material respects with
Rule 430A (if it shall have elected to rely thereon) and neither the
Registration Statement, any 462(b) Registration Statement, nor the
Prospectus, as they may then be amended or supplemented, shall contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading,
23
(ii) there shall not have been, since the respective dates as of which
information is given in the Registration Statement, any material adverse
change in the business, prospects, properties, assets, results of operations
or condition (financial or otherwise) of the Company, whether or not arising
in the ordinary course of business, (iii) no action, suit or proceeding at
law or in equity shall be pending or, to the best of Company's knowledge,
threatened against the Company that would be required to be set forth in the
Prospectus other than as set forth therein and no proceedings shall be
pending or, to the best knowledge of the Company, threatened against the
Company before or by any federal, state or other commission, board or
administrative agency wherein an unfavorable decision, ruling or finding
could materially adversely affect the business, prospects, assets, results
of operations or condition (financial or otherwise) of the Company, other
than as set forth in the Prospectus, (iv) the Company shall have complied
with all agreements and satisfied all conditions on their part to be
performed or satisfied pursuant to this Agreement at or prior to the Closing
Time, and (v) the representations and warranties of the Company set forth in
Section 1 shall be accurate as though expressly made at and as of the
Closing Time. At the Closing Time, you shall have received a certificate
executed by the President and Chief Financial Officer of the Company dated
as of the Closing Time, to such effect and with respect to the following
additional matters: (A) the Registration Statement has become effective
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Prospectus
has been issued, and no proceedings for that purpose have been instituted or
are pending or, to the best of their knowledge, threatened under the 1933
Act; and (B) they have reviewed the Registration Statement and the
Prospectus and, when the Registration Statement and any 462(b) Registration
Statement became effective and at all times subsequent thereto up to the
delivery of such certificate, the Registration Statement, any 462(b)
Registration Statement and the Prospectus and any amendments or supplements
thereto contained all statements and information required to be included
therein or necessary to make the statements therein not misleading and
neither the Registration Statement, any 462(b) Registration Statement, nor
the Prospectus nor any amendment or supplement thereto included any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and, since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an amended or
supplemented Prospectus that has not been so set forth.
(f) You shall have received from KPMG Peat Marwick L.L.P. letters
dated, respectively, the date hereof (or, if the Registration Statement has
been declared effective prior to the execution and delivery of this
Agreement, dated such effective date and the date of this Agreement) and the
Closing Time and the Date of Delivery, in form and substance satisfactory to
you, to the effect set forth in Annex I hereto. In the event that the
letters referred to in this subsection set forth any changes, decreases or
increases in the items specified in paragraph (iii) of Annex I, it shall be
a further condition to the obligations of the Underwriters that (i) such
letters shall be accompanied by a written explanation by the Company as to
the significance thereof, unless the Underwriters deem such explanation
unnecessary, and (ii) such changes, decreases or increases do not, in your
sole judgment, make it impracticable or
24
inadvisable to proceed with the purchase, sale and delivery of the Shares as
contemplated by the Registration Statement, as amended as of the date of
such letter.
(g) At the Closing Time, you shall have received from KPMG Peat
Marwick L.L.P. a letter, in form and substance satisfactory to you and dated
as of the Closing Time, to the effect that they reaffirm the statements made
in the letter furnished pursuant to subsection (e) above, except that the
specified date referred to shall be a date not more than five days prior to
the Closing Time.
(h) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
request for the purpose of enabling them to pass upon the issuance and sale
of the Shares as contemplated in this Agreement and the matters referred to
in Section 7(d) and in order to evidence the accuracy and completeness of
any of the representations, warranties or statements of the Company, the
performance of any of the covenants of the Company, or the fulfillment of
any of the conditions herein contained; and all proceedings taken by the
Company at or prior to the Closing Time in connection with the
authorization, issuance and sale of the Shares as contemplated in this
Agreement shall be reasonably satisfactory in form and substance to you and
to counsel for the Underwriters. The Company will furnish you with such
number of conformed copies of such opinions, certificates, letters and
documents as you shall reasonably request.
(i) The NASD, upon review of the terms of the public offering of the
Shares, shall not have objected to such offering, such terms or the
Underwriters' participation in the same.
(j) Subsequent to the date hereof, there shall not have occurred any
of the following: (i) there has occurred or accelerated any outbreak of
hostilities or other national or international calamity or crisis or change
in economic or political conditions the effect on the financial markets of
the United States is such as to make it, in your judgment, impracticable to
market the Shares or enforce contracts for the sale of the Shares, or (ii)
trading in any securities of the Company has been suspended by the
Commission or by the Nasdaq Stock Market, or if trading generally on the New
York Stock Exchange or in the over-the-counter market has been suspended, or
limitations on prices for trading (other than limitations on hours or
numbers of days of trading) have been fixed, or maximum ranges for prices
for securities have been required, by such exchange or the NASD or by order
of the Commission or any other governmental authority, or (iii) there has
been any downgrading in the rating of any of the Company's debt securities
or preferred stock by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the 1933 Act),
or (iv) a banking moratorium has been declared by federal or New York or
Louisiana authorities, or (v) any federal or state statute, regulation, rule
or order of any court or other governmental authority has been enacted,
published, decreed or otherwise promulgated which in your reasonable opinion
materially adversely affects or will materially adversely affect the
business
25
or operations of the Company, or (vi) any action has been taken by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your reasonable opinion has a material adverse
effect on the securities markets in the United States.
(k) Prior to the date of the execution of this Agreement, the Company
shall have furnished to the Representatives a letter substantially in the
form of Exhibit A hereto from each executive officer and director of the
Company, addressed to the Representatives, in which each such person agrees
not to offer, pledge, sell, contract to sell, grant any option for the sale
of, or otherwise dispose of, or announce any offer, pledge, sale, grant of
any option to purchase or other disposition of, directly or indirectly, any
shares of Common Stock beneficially owned by such person or any securities
convertible into, exercisable for or exchangeable for shares of Common Stock
for a period of 120 days after the date of the Prospectus without the prior
written consent of Xxxxxxx Xxxx & Company L.L.C.; provided, however, that
the foregoing restrictions shall not apply to any gift of Common Stock to a
donee who agrees in writing for the benefit of the Underwriters to be bound
by the foregoing restrictions with respect to such shares of Common Stock.
If any of the conditions specified in this Section 7 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this Agreement
may be terminated by you on notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party, except as provided in Section 6. Notwithstanding any such
termination, the provisions of Section 8 shall remain in effect.
The several obligations of the Underwriters to purchase Option Shares
hereunder are subject to the satisfaction on and as of any Date of Delivery for
Option Shares of the conditions set forth in this Section 7, except that, if any
Date of Delivery for Option Shares is other than the Closing Time, the
certificates, opinions and letters referred to in paragraphs (b), (c) and (d)
shall be revised to reflect the sale of Option Shares.
Section 8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject under the 1933 Act, or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) (i) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in (A) any Preliminary
Prospectus, the Registration Statement, any 462(b) Registration Statement or
the Prospectus, or any amendment or supplement thereto, or (B) any
application or other document, or any amendment or supplement thereto,
executed by the Company or based upon written information furnished by or on
behalf of the Company filed in any jurisdiction in order to qualify the
Shares under the securities or blue sky laws thereof or filed with the
Commission or any securities association or securities exchange (each an
"Application"), or (ii) arise out of or are based upon the omission or
alleged omission to state in any Preliminary Prospectus,
26
the Registration Statement, any 462(b) Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any Application a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, any 462(b) Registration Statement or
the Prospectus, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter expressly for use therein; and provided further, that such
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of an Underwriter (or any person controlling an Underwriter) from
whom the person asserting any such loss, claim, damage or liability
purchased the Shares that are the subject thereof, if such person did not
receive a copy of the Prospectus (or the Prospectus, as amended or
supplemented) at or prior to the written confiirmation of the sale of the
Shares to such person where such delivery of the Prospectus (or the
Prospectus, as amended or supplemented) is required by the Securities Act
and where the untrue statement or omissionof a material fact contained in
such Preliminary Prospectus was corrected in the Prospectus (or the
Prospectus, as amended or supplemented), unless the failure to deliver was a
result of the Company's failure to deliver the Prospectus in accordance with
Section 4(d) of this Agreement. The Company will also indemnify and hold
harmless each Underwriter against any losses, claims, damages or
liabilities, joint and several, to which such Underwriter may become subject
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any breach of any warranty
or covenant of the Company contained herein. In addition to its other
obligations under this Section 8(a), the Company agrees that, as an interim
measure during the pendency of any such claim, action, investigation,
inquiry or other proceeding arising out of or based upon any statement or
omission, or any alleged statement or omission, described in this Section
8(a), it will reimburse the Underwriters on a monthly basis for all
reasonable legal and other expenses incurred by the Underwriters in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the
obligations of the Company to reimburse the Underwriters for such expenses
and the possibility that such payments might later be held to have been
improper by a court of competent jurisdiction; provided, however, that the
obligation of the Company to make any such reimbursements shall be subject
to receipt from the Underwriters of an undertaking to return any such
reimbursements to the extent that is determined by a court of competent
jurisdiction or an arbitrator appointed in accordance with Section 8(e) that
such indemnification of the Underwriters by the Company is not permitted.
Any such interim reimbursement payments that are not made to an Underwriter
within 30 days of a request for reimbursement shall bear interest at the
prime rate (or reference rate or other commercial lending rate for borrowers
of the highest credit standing) published from time to time by The Wall
Street Journal (the "Prime Rate") from the date of such request. This
indemnity
27
agreement shall be in addition to any liabilities that the Company may
otherwise have. The Company will not, without the prior written consent of
each Underwriter, settle or compromise or consent to the entry of any
judgment in any pending or threatened action or claim or related cause of
action or portion of such cause of action in respect of which
indemnification may be sought hereunder (whether or not such Underwriter is
a party to such action or claim), unless such settlement, compromise or
consent includes an unconditional release of such Underwriter from all
liability arising out of such action or claim (or related cause of action or
portion thereof).
The indemnity agreement in this Section 8(a) shall extend upon the
same terms and conditions to, and shall inure to the benefit of, each
person, if any, who controls any Underwriter within the meaning of the 1933
Act to the same extent as such agreement applies to the Underwriters.
(b) Each Selling Stockholder will indemnify and hold harmless the
Company and each Underwriter against any losses, claims, damages or
liabilities, to which the Company or any Underwriter may become subject
under the 1933 Act, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (i) arise out of or are based
upon any breach of any warranty or covenant of such Selling Stockholder
herein contained, (ii) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in (A) any
Preliminary Prospectus, the Registration Statement, any 462(b) Registration
Statement or the Prospectus, or any amendment or supplement thereto, or (B)
any Application, or (iii) arise out of or are based upon the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement, any 462(b) Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any Application a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and each Underwriter for any
legal or other expenses reasonably incurred by either the Company or such
Underwriter, or both, in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that such
Selling Stockholder shall not be liable in any such case to the Underwriters
to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the Registration
Statement, any 462(b) Registration Statement, or the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by any Underwriter expressly for use
therein; and provided further, that such indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of an Underwriter (or
any person controlling an Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Shares that are the
subject thereof, if such person did not receive a copy of the Prospectus (or
the Prospectus, as amended or supplemented) at or prior to the written
confiirmation of the sale of the Shares to such person where such delivery
of the Prospectus (or the Prospectus, as amended or supplemented) is
required by the Securities Act and where the untrue statement or omissionof
a material fact contained in such Preliminary Prospectus was corrected in
the Prospectus (or the Prospectus,
28
as amended or supplemented), unless the failure to deliver was a result of
the Company's failure to deliver the Prospectus in accordance with Section
4(d) of this Agreement; and provided, further, however, that such Selling
Stockholder shall be liable hereunder in any case only to the extent of the
total net proceeds from the offering (before deducting expenses) received by
such Selling Stockholder from the Underwriters for the Shares sold by such
Selling Stockholder hereunder, unless any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement, any 462(b) Registration Statement or any amendment or supplement
thereto, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto or any Application in reliance upon and in conformity
with written information furnished to the Company by such Selling
Stockholder expressly for use therein, in which case such limitation of the
liability of such Selling Stockholder shall not apply. In addition to its
other obligations under this Section 8(b), each Selling Stockholder agrees
that, as an interim measure during the pendency of any such claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, described in
this Section 8(b), such Selling Stockholder will reimburse the Company and
the Underwriters on a monthly basis for all reasonable legal and other
expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding
the absence of a judicial determination as to the propriety and
enforceability of such Selling Stockholder's obligation to reimburse the
Company or the Underwriters for such expenses and the possibility that such
payments might later be held to have been improper by a court of competent
jurisdiction; provided, however, that the obligation of such Selling
Stockholder to make any such reimbursements shall be subject to receipt from
the Company or the Underwriters, as the case may be, of an undertaking to
return any such reimbursements to the extent that it is determined by a
court of competent jurisdiction that such indemnification of the Company and
the Underwriters by such Selling Stockholder is not permitted. Any such
interim reimbursement payments that are not made to the Company or an
Underwriter within 30 days of receipt of a request for reimbursement, and
all appropriate supporting documentation, shall bear interest at the Prime
Rate from the date of such request. This indemnity agreement shall be in
addition to any liabilities that the Selling Stockholders may otherwise
have. The Selling Stockholders will not, without the prior written consent
of the Company and Xxxxxxx Xxxx & Company L.L.C., as representative of the
Underwriters, settle or compromise or consent to the entry of any judgment
in any pending or threatened action or claim or related cause of action or
portion of such cause of action in respect of which indemnification may be
sought hereunder (whether or not any of the Company or any Underwriter is a
party to such action or claim), unless such settlement, compromise or
consent includes an unconditional release of the Company and each
Underwriter from all liability arising out of such action or claim (or
related cause of action or portion thereof).
The indemnity agreement in this Section 8(b) shall extend upon the
same terms and conditions to, and shall inure to the benefit of, each of the
officers and directors of the Company and each Underwriter and each person,
if any, who controls the Company and any
29
Underwriter within the meaning of the 1933 Act to the same extent such
indemnity agreement applies to the Company and the Underwriters.
(c) Each Underwriter, severally but not jointly, will indemnify and
hold harmless the Company and the Selling Stockholders against any losses,
claims, damages or liabilities to which the Company may become subject,
under the 1933 Act, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any breach of any warranty or covenant by such Underwriter herein contained
or any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, any
462(b) Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by such Underwriter expressly
for use therein; and will reimburse the Company and the Selling Stockholders
for any legal or other expenses reasonably incurred by the Company or the
Selling Stockholders in connection with investigating or defending any such
loss, claim, damage, liability or action. In addition to its other
obligations under this Section 8(c), the Underwriters agree that, as an
interim measure during the pendency of any such claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, described in
this Section 8(c), they will reimburse the Company and the Selling
Stockholders on a monthly basis for all reasonable legal and other expenses
incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and enforceability
of their obligation to reimburse the Company and the Selling Stockholders
for such expenses and the possibility that such payments might later be held
to have been improper by a court of competent jurisdiction. Any such interim
reimbursement payments that are not made to the Company and the Selling
Stockholders within 30 days of a request for reimbursement shall bear
interest at the Prime Rate from the date of such request. This indemnity
agreement shall be in addition to any liabilities that the Underwriters may
otherwise have. No Underwriter will, without the prior written consent of
the Company and the Selling Stockholders, settle or compromise or consent to
the entry of judgment in any pending or threatened action or claim or
related cause of action or portion of such cause of action in respect of
which indemnification may be sought hereunder (whether or not the Company or
the Selling Stockholders are parties to such action or claim), unless such
settlement, compromise or consent includes an unconditional release of the
Company and the Selling Stockholders from all liability arising out of such
action or claim (or related cause of action or portion thereof).
The indemnity agreement in this Section 8(c) shall extend upon the
same terms and conditions to, and shall inure to the benefit of, each
officer and director of the Company and
30
each person, if any, who controls the Company within the meaning of the 1933
Act to the same extent as such agreement applies to the Company.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; no indemnification provided for in
subsection (a), (b) or (c) shall be available to any party who shall fail to
give notice as provided in this subsection (d) if the party to whom notice
was not given was unaware of the proceeding to which such notice would have
related and was prejudiced by the failure to give such notice, but the
omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability that it may have to any indemnified
party otherwise than under Section 8. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party (which consent shall not be
unreasonably withheld), be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof other than reasonable costs of investigation, except
that if the indemnified party has been advised by counsel in writing that
there are one or more defenses available to the indemnified party which are
different from or additional to those available to the indemnifying party,
then the indemnified party shall have the right to employ separate counsel
and in that event the reasonable fees and expenses of such separate counsel
for the indemnified party shall be paid by the indemnifying party; provided,
however, that if the indemnifying party is the Company or a Selling
Stockholder, the indemnifying party shall only be obligated to pay the
reasonable fees and expenses of a single law firm (and any reasonably
necessary local counsel) employed by all of the indemnified parties. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(e) It is agreed that any controversy arising out of the operation of
the interim reimbursement arrangements set forth in Section 8(a), (b) and
(c) hereof, including the amounts of any requested reimbursement payments,
the method of determining such amounts and the basis on which such amounts
shall be apportioned among the indemnifying parties, shall be settled by
arbitration conducted pursuant to the Code of Arbitration Procedure of the
National Association of Securities Dealers, Inc. Any such arbitration must
be commenced by service of a written demand for arbitration or a written
notice of intention to arbitrate, therein electing the arbitration tribunal.
In the event the party demanding arbitration does not make
31
such designation of an arbitration tribunal in such demand or notice, then
the party responding to said demand or notice is authorized to do so. Any
such arbitration will be limited to the operation of the interim
reimbursement provisions contained in Sections 8(a), (b) and (c) hereof and
will not resolve the ultimate propriety or enforceability of the obligation
to indemnify for expenses that is created by the provisions of Sections
8(a), (b) and (c).
(f) In order to provide for just and equitable contribution in
circumstances under which the indemnity provided for in this Section 8 is
for any reason judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the right of appeal) to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company and the Selling Stockholders, on the one hand, and the Underwriters,
on the other hand, shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
incurred by the Company and the Selling Stockholders, and one or more of the
Underwriters, as incurred, in such proportions that (a) the Underwriters are
responsible pro rata for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Prospectus bears to
the public offering price (before deducting expenses) appearing thereon, and
(b) the Company and the Selling Stockholders are responsible for the
balance, provided, however, that no person guilty of fraudulent
misrepresentations (within the meaning of Section 11(f) of the 0000 Xxx)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation; provided, further, that if the allocation
provided above is not permitted by applicable law, the Company and the
Selling Stockholders, on the one hand, and the Underwriters, on the other
hand, shall contribute to the aggregate losses in such proportion as is
appropriate to reflect not only the relative benefits referred to above but
also the relative fault of the Company and the Selling Stockholders, on the
one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations.
Relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Company or the Selling Stockholders, on the one hand, or by the
Underwriters, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8(f) were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 8(f). The amount paid or
payable by a party as a result of the losses, claims, damages or liabilities
referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with investigating
or defending such action or claim. Notwithstanding the provisions of this
Section 8(f), (i) no Selling Stockholder shall be required to contribute any
amount in excess of the aggregate amount of net proceeds received by such
Selling Stockholder from the sale of Shares by such Selling Stockholder and
(ii) no Underwriter shall be required to contribute
32
any amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. The Underwriters' obligations in
this Section 8(f) to contribute are several in proportion to their
respective underwriting obligations and not joint. For purposes of this
Section 8(f), each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company, within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as the Company
Section 9. Representations, Warranties and Agreements to Survive
Delivery. The representations, warranties, indemnities, agreements and other
statements of the Company, or its officers, and the Selling Stockholders set
forth in or made pursuant to this Agreement will remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Company, the Selling Stockholders or any Underwriter or controlling person, and
with respect to an Underwriter, a Selling Stockholder or the Company will
survive delivery of and payment for the Shares or termination of this Agreement.
Section 10. Effective Date of Agreement and Termination.
(a) This Agreement shall become effective immediately as to Sections 6
and 8 and, as to all other provisions, (i) if at the time of execution of
this Agreement the Registration Statement has not become effective, at 9:30
a.m. New York, New York time on the first full business day following the
effectiveness of the Registration Statement, or (ii) if at the time of
execution of this Agreement the Registration Statement has been declared
effective, at 9:30 a.m. New York, New York time on the first full business
day following the date of execution of this Agreement; but this Agreement
shall nevertheless become effective at such earlier time after the
Registration Statement becomes effective as you may determine on and by
notice to the Company and the Selling Stockholders or by release of any of
the Shares for sale to the public. For the purposes of this Section 10, the
Shares shall be deemed to have been so released upon the release of
publication of any newspaper advertisement relating to the Shares or upon
the release by you of telegrams (i) advising the Underwriters that the
Shares are released for public offering, or (ii) offering the Shares for
sale to securities dealers, whichever may occur first. By giving notice
before the time this Agreement becomes effective, you, as representative of
the several Underwriters, or the Company, may prevent this Agreement from
becoming effective, without liability of any party to any other party,
except that the Company shall remain obligated to pay costs and expenses to
the extent provided in Section 6 hereof and except that the provisions of
Section 8 shall remain in effect.
(b) You may terminate this Agreement, by notice to the Company and the
Selling Stockholders, at any time at or prior to the Closing Time (i) in
accordance with the
33
penultimate paragraph of Section 7 of this Agreement, or (ii) if there has
been since the respective dates as of which information is given in the
Registration Statement, any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
business, prospects, management, properties, assets, results of operations
or condition (financial or otherwise) of the Company, whether or not arising
in the ordinary course of business, or (iii) if there has occurred or
accelerated any outbreak of hostilities or other national or international
calamity or crisis or change in economic or political conditions the effect
of which on the financial markets of the United States is such as to make
it, in your judgment, impracticable to market the Shares or enforce
contracts for the sale of the Shares, or (iv) if trading in any securities
of the Company has been suspended by the Commission or by the Nasdaq Stock
Market or if trading generally on the New York Stock Exchange or in the
over-the-counter market has been suspended, or limitations on prices for
trading (other than limitations on hours or numbers of days of trading) have
been fixed, or maximum ranges for prices for securities have been required,
by such exchange or the NASD or by order of the Commission or any other
governmental authority, or (v) if a banking moratorium has been declared by
federal or New York or Louisiana authorities, or (vi) any federal or state
statute, regulation, rule or order of any court or other governmental
authority has been enacted, published, decreed or otherwise promulgated
which in your reasonable opinion materially adversely affects or will
materially adversely affect the business or operations of the Company, or
(vii) any action has been taken by any federal, state or local government or
agency in respect of its monetary or fiscal affairs which in your reasonable
opinion has a material adverse effect on the securities markets in the
United States.
(c) If this Agreement is terminated pursuant to this Section 10, such
termination shall be without liability of any party to any other party,
except to the extent provided in Section 6. Notwithstanding any such
termination, the provisions of Section 8 shall remain in effect.
Section 11. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the Shares
that it or they are obligated to purchase pursuant to this Agreement (the
"Defaulted Securities"), you shall have the right, within 36 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms set forth in
this Agreement; if, however, you have not completed such arrangements within
such 36-hour period, then:
(a) If the aggregate number of Firm Shares which are Defaulted
Securities does not exceed 10% of the aggregate number of Firm Shares to be
purchased pursuant to this Agreement, the non-defaulting Underwriters shall
be obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligation proportions bear to the
underwriting obligations of all non-defaulting Underwriters, and
34
(b) If the aggregate number of Firm Shares which are Defaulted
Securities exceeds 10% of the aggregate number of Firm Shares to be
purchased pursuant to this Agreement, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 11 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination of
this Agreement, either you or the Company shall have the right to postpone the
Closing Time for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements, and the Company agrees promptly to file any
amendments to the Registration Statement or supplements to the Prospectus that
may thereby be made necessary. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 11.
Section 12. Default by the Company. If the Company or any of the
Selling Stockholders shall fail at the Closing Time to sell and deliver the
aggregate number of Firm Shares that it is obligated to sell, then this
Agreement shall terminate without any liability on the part of any non-
defaulting party, except to the extent provided in Section 6 and except that the
provisions of Section 8 shall remain in effect.
No action taken pursuant to this Section shall relieve the Company or any of
the Selling Stockholders from liability, if any, in respect to such default.
Section 13. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed c/o Johnson Rice & Company L.L.C.,
000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxx
X. Xxxxx (with a copy sent in the same manner to Xxxxxxx & Xxxxx L.L.P., 0000
Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention: Xxxxxx X. Xxxxx); notices
to the Company shall be directed to it at 0000 Xxxxxxxxx Xxxx, Xxxxx Xxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxx (with a copy of each notice to the
Company or to any Selling Stockholder sent in the same manner to Jones, Walker,
Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., 000 Xx. Xxxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxx); and notices to the
Selling Stockholders shall be directed to them at their addresses specified for
them on the signature pages hereof.
Section 14. Parties. This Agreement is made solely for the benefit of
and is binding upon the Underwriters, the Selling Stockholders and the Company
and, to the extent provided in Section 8, any person controlling the Company,
the Selling Stockholders or any of the Underwriters, the officers and directors
of the Company, and their respective executors, administrators, successors and
assigns. Subject to the provisions of Section 8, no other person shall acquire
or have any right under
35
or by virtue of this Agreement. The term "successors and assigns" shall not
include any purchaser, as such purchaser, from any of the several Underwriters
of the Shares.
All of the obligations of the Underwriters hereunder are several and not
joint.
Section 15. Governing Law and Time. This Agreement shall be governed
by the laws of the State of Louisiana. Specified time of the day refers to
United States Eastern Time. Time shall be of the essence of this Agreement.
Section 16. Counterparts. This Agreement may be executed in one or
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, and upon the acceptance
hereof by Xxxxxxx Rice & Company L.L.C., on behalf of each of the Underwriters,
this instrument will become a binding agreement among the Company and the
several Underwriters in accordance with its terms. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in the Agreement among Underwriters, a copy of which
shall be submitted to the Company for examination, upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
SUPERIOR ENERGY SERVICES, INC.
By:
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
------------------------------------
Xxxxxxx X. Xxxx
[address]
------------------------------------
Xxxxxx X. Xxxxxx, Xx.
[address]
36
-------------------------------------
Xxxxx X. Xxxxxxxxx
[address]
-------------------------------------
Xxxxxxx X. Xxxxx
[address]
-------------------------------------
Xxxxx X. Xxxxx
[address]
-------------------------------------
Xxxx X. Xxxxxx
[address]
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above:
XXXXXXX XXXX & COMPANY L.L.C.
JEFFERIES & COMPANY, INC.
XXXXXX, XXXXXXX INC.
By: Xxxxxxx Rice & Company L.L.C.
By:
---------------------------------
(Authorized Representative)
On behalf of each of the Underwriters
37
SCHEDULE A
Number of
Firm Shares
to be Purchased
---------------
Underwriter
-----------
Xxxxxxx Xxxx & Company L.L.C.
-------------
Jefferies & Company, Inc.
-------------
Xxxxxx, Xxxxxxx Inc.
-------------
TOTAL 6,000,000
=============
38
SCHEDULE B
Number of Number of
Name of Selling Firm Shares Option Shares
Stockholders To Be Sold To Be Sold
--------------- ----------- -------------
Xxxxxxx X. Xxxx 618,902 800,648
Xxxxx X. Xxxxxxxxx 419,708 28,154
Xxxxxx X. Xxxxxx, Xx. 418,068 28,044
Xxxxxxx X. Xxxxx 331,724 22,252
Xxxxx X. Xxxxx 225,498 15,126
Xxxx X. Xxxxxx 86,100 5,776
Total 2,100,000 900,000
========= =======
39
SCHEDULE C
Superior Well Service, Inc.
Oil Stop, Inc.
Baytron, Inc.
Superior Fishing and Rental, Inc.
Connection Technology, Ltd.
Dimensional Oil Field Services, Inc.
Nautilus Pipe & Tool Rental, Inc.
Superior Bearing & Machine Works, Inc.
F. & F. Wireline Service, Inc.
Tong Rentals and Supply Company, Inc.
Fastorq, Inc.
0000 Xxxxxx Xxxx, Inc.
0000 Xxxxxx Xxxx, Inc.
Sub-Surface Tools, Inc.
Stabil Drill Specialties, Inc.
40
ANNEX I
Pursuant to Section 7(f) of the Underwriting Agreement, KPMG Peat
Marwick L.L.P. shall furnish letters to the Underwriters to the effect that:
(i) They are independent public accountants with respect to the
Company and its consolidated subsidiaries, with respect to Stabil Drill
Specialties, Inc. and with respect to Sub-Surface Tools, Inc. within the
meaning the 1933 Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the consolidated financial statements and
schedules audited by them and included in the Prospectus, the Registration
Statement and any 462(b) Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act and the related published rules and regulations thereunder;
(iii) On the basis of limited procedures, not constituting an audit
in accordance with generally accepted auditing standards, consisting of a
reading of the latest available interim unaudited consolidated financial
statements of the Company and its consolidated subsidiaries included in the
Registration Statement and the Prospectus, a reading of the latest
available interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since
the date of the latest audited financial statements included in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited consolidated condensed financial statements of
the Company and its consolidated subsidiaries included in the
Registration Statement and the Prospectus do not comply in form in all
material respects with the applicable accounting requirements of the
1933 Act and the related published rules and regulations thereunder or
are not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
consolidated financial statements included in the Registration
Statement and the Prospectus;
(B) as of a specified date not more than 5 days prior to the date
of such letter, there were any changes in the capital stock (other
than the issuance of capital stock upon exercise of options which were
outstanding on the date of the latest balance sheet included in the
Prospectus) or any increase in inventories or the long-term debt or
short-term debt of the Company and its subsidiaries, or any decreases
in net current assets or net assets or other items specified by the
Underwriters, or any increases in any items specified by the
Underwriters, in each case as compared with
amounts shown in the latest balance sheet included in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(C) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in Clause (B) there were any decreases in net sales or operating
income or the total or per share amounts of net income or other items
specified by the Underwriters, or any increases in any items specified
by the Underwriters, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Underwriters, except in each
case for increases or decreases which the Prospectus discloses have
occurred or may occur which are described in such letter; and
(iv) In addition to the audit referred to in their report(s) included
in the Prospectus and the limited procedures, inspection of minute books,
inquiries and other procedures referred to in paragraph (iii) above, they
have carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Underwriters which are derived from the general accounting records of the
Company and its subsidiaries, included in the Registration Statement and
the Prospectus, or which appear in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Underwriters, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have
found them to be in agreement.
(v) On the basis of a reading of the unaudited pro forma consolidated
condensed financial statements included in the Registration Statement and
the Prospectus, carrying out certain specified procedures that would not
necessarily reveal matters of significance with respect to the comments set
forth in this paragraph (v), inquiries of certain officials of the Company
and its consolidated subsidiaries who have responsibility for financial and
accounting matters and proving the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts in the unaudited pro
forma consolidated condensed financial statements, nothing came to their
attention that caused them to believe that the unaudited pro forma
consolidated condensed financial statements do not comply as to form in all
material respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such statements.
References to the Registration Statement and the Prospectus in this
Annex I shall include any amendment or supplement thereto at the date of
such letter.
2
EXHIBIT A
November ___, 1997
Xxxxxxx Xxxx & Company L.L.C.
Jefferies & Company, Inc.
Xxxxxx, Xxxxxxx Inc.
As Representatives of the
Several Underwriters
c/o Johnson Rice & Company L.L.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Gentlemen:
The undersigned understands that Superior Energy Services, Inc. (the
"Company"), a Delaware corporation, has filed a Registration Statement on Form
S-3 with the Securities and Exchange Commission in connection with a proposed
underwritten public offering (the "Offering") of shares of the Company's Common
Stock, $0.001 par value per share (the "Common Stock").
At the request of Xxxxxxx Xxxx & Company L.L.C., Jefferies & Company, Inc.
and Xxxxxx, Xxxxxxx Inc., as representatives of the several underwriters (the
"Representatives") participating in the Offering, and in consideration of the
underwriters' participation in the Offering, the undersigned hereby does agree
that the undersigned will not, without the prior written consent of Xxxxxxx Rice
& Company L.L.C., directly or indirectly, offer, pledge, sell, contract to sell,
grant any option for the sale of or otherwise dispose of or announce any offer,
pledge, sale, grant of any option to purchase or other disposition of, directly
or indirectly, any shares of Common Stock or any securities convertible into,
exercisable for or exchangeable for shares of Common Stock owned by the
undersigned for a period of 120 days from the date of the final prospectus
relating to the Common Stock; provided, however, that the foregoing restrictions
shall not apply to any gift of shares of Common Stock to a donee who agrees in
writing for the benefit of the underwriters to be bound by the foregoing
restrictions with respect to such shares of Common Stock.
Sincerely,
