EXHIBIT 10.1
8,220,000 SHARES*
WARRIOR ENERGY SERVICES CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
St. Petersburg, Florida
April 18, 2006
Xxxxxxx Xxxxx & Associates, Inc.
As Representative of the Several Underwriters
listed on Schedule I hereto
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Warrior Energy Services Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters"), and certain stockholders of the Company named in Schedule II
hereto (the "Selling Stockholders") severally and not jointly propose, subject
to the terms and conditions stated herein, to sell to the Underwriters, an
aggregate of 8,220,000 shares of the Company's Common Stock, par value $0.0005
per share (the "Common Stock"), of which (a) 7,627,534 shares are to be issued
and sold by the Company, and (b) 592,466 shares are to be sold by the Selling
Stockholders, each Selling Stockholder selling the number of shares set forth
opposite such Selling Stockholder's name in Schedule II hereto. The aggregate of
8,220,000 shares to be purchased from the Company and the Selling Stockholders
are called the "Firm Shares." In addition, the Company have agreed to sell to
the Underwriters, upon the terms and conditions stated herein, up to an
additional 1,233,000 shares of Common Stock (the "Additional Shares") to cover
over-allotments by the Underwriters, if any, to be issued and sold by the
Company. The Firm Shares and the Additional Shares are collectively referred to
in this Agreement as the "Shares." Xxxxxxx Xxxxx & Associates, Inc. is acting as
the representative of the several Underwriters and in such capacity is referred
to in this Agreement as the "Representative."
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* Plus an additional 1,233,000 shares subject to Underwriter's over-allotment
option.
The Company and the Underwriters agree that up to 10% of the Firm
Shares to be purchased by the Underwriters (the "Directed Shares") shall be
reserved for sale by the Underwriters to certain eligible directors, officers
and employees of the Company and persons having business relationships with the
Company (collectively, the "DSP Participants"), as part of the distribution of
the Shares by the Underwriters (the "Directed Share Program") subject to the
terms of this Agreement, the applicable rules, regulations and interpretations
of the NASD, Inc. (the "NASD") and all other applicable laws, rule and
regulations. Xxxxxxx Xxxxx, solely in its capacity as the Directed Share Program
underwriter and not otherwise (the "DSP Underwriter"), has been selected to
process the sales to the DSP Participants under the Directed Share Program. To
the extent that such Directed Shares are not orally confirmed for purchase by
the DSP Participants by 7:30 a.m., New York City time, on the first business day
after the date of this Agreement, such Directed Shares may be offered to the
public as set forth in the Prospectus (as defined below).
The Company wishes to confirm as follows its agreement with you and the
other several Underwriters, on whose behalf you are acting, in connection with
the several purchases of the Shares from the Company.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (File No. 333-131781), including a
prospectus subject to completion, relating to the Shares. Such registration
statement, as amended, including the financial statements, exhibits and
schedules thereto, at the time when it becomes effective and as thereafter
amended by any post-effective amendment, is referred to in this Agreement as the
"Registration Statement." The prospectus in the form included in the
Registration Statement or, if the prospectus included in the Registration
Statement omits certain information in reliance upon Rule 430A under the Act and
such information is thereafter included in a prospectus filed with the
Commission pursuant to Rule 424(b) under the Act or as part of a post-effective
amendment to the Registration Statement after the Registration Statement becomes
effective, the prospectus as so filed, is referred to in this Agreement as the
"Prospectus." If the Company files another registration statement with the
Commission to register a portion of the Shares pursuant to Rule 462(b) under the
Act (the "Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to include the registration statement on Form
S-1 (File No. 333-131781) and the Rule 462 Registration Statement, as each such
registration statement may be amended pursuant to the Act. The prospectus
subject to completion dated March 31, 2006 in the form included in the
Registration Statement, as such prospectus is amended from time to time until
the date of the Prospectus, is referred to in this Agreement as the "Preliminary
Prospectus." For purposes of this Agreement, "free writing prospectus" has the
meaning ascribed to it in Rule 405 under the Act, and "Issuer Free Writing
Prospectus" shall mean each free writing prospectus prepared by or on behalf of
the Company or used or referred to by the Company in connection with the
offering of the Shares. "Time of Sale Information" shall mean the Preliminary
Prospectus together with the free writing prospectuses, if any, identified in
Schedule III hereto as being included in the Time of Sale Information. All
references in this Agreement to the Registration Statement, the Rule 462
Registration Statement, the Preliminary Prospectus, the Prospectus or the Time
of Sale Information, or any amendments or supplements to any of the foregoing,
shall be deemed to refer to and include any documents incorporated by reference
therein, and shall include any copy thereof filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval System ("XXXXX"). "Time
of Sale" means 4:00 p.m., St. Petersburg, Florida time on the date hereof.
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2. Agreements to Sell and Purchase. Upon the terms and conditions set
forth herein, (i) the Company agrees to issue and sell an aggregate of 8,220,000
Firm Shares to the Underwriters and (ii) each Selling Stockholder agrees to sell
to the Underwriter the number of Firm Shares set forth opposite such Selling
Stockholder's name on Schedule II hereto. Upon the basis of the representations,
warranties and agreements of the Company and the Selling Stockholders herein
contained and subject to all the terms and conditions set forth herein, each
Underwriter agrees, severally and not jointly, to purchase from the Company and
the Selling Stockholders, collectively, at a purchase price of $21.855 per Share
(the "purchase price per Share"), the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto.
The Company hereby also agrees to sell to the Underwriters, and, upon
the basis of the representations, warranties and agreements of the Company
herein contained and subject to all the terms and conditions set forth herein,
the Underwriters shall have the right for 30 days from the date of the
Prospectus to purchase from the Company up to 1,233,000 Additional Shares at the
purchase price per Share for the Firm Shares. The Additional Shares may be
purchased solely for the purpose of covering over-allotments, if any, made in
connection with the offering of the Firm Shares. If any Additional Shares are to
be purchased, each Underwriter, severally and not jointly, agrees to purchase
the number of Additional Shares (subject to such adjustments as you may
determine to avoid fractional shares) that bears the same proportion to the
total number of Additional Shares to be purchased by the Underwriters as the
number of Shares set forth opposite the name of such Underwriter in Schedule I
hereto bears to the total number of Shares. The option to purchase Additional
Shares may be exercised at any time within 30 days after the date of the
Prospectus, but no more than once.
3. Terms of Public Offering. The Company has been advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the Prospectus.
Not later than 12:00 p.m. on the second business day following the date
the Shares are released by the Underwriters for sale to the public, the Company
shall deliver or cause to be delivered copies of the Prospectus in such
quantities and at such places as the Representative shall request.
4. Delivery of the Shares and Payment Therefor. Delivery to the
Underwriters of the Firm Shares and payment therefor shall be made at the
offices of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx at 10:00 a.m., St. Petersburg, Florida time, on April 24,
2006, or such other place, time and date as the Representative shall designate
by notice to the Company (the time and date of such closing are called the
"Closing Date"). The place of closing for the Firm Shares and the Closing Date
may be varied by agreement between the Representative and the Company. The
Company and the Selling Stockholders hereby acknowledge that circumstances under
which the Representative may provide notice to postpone the Closing Date as
originally scheduled include any determination by the Company, the Selling
Stockholders or the Representative to recirculate to the public copies of an
amended or supplemented Prospectus or a delay as contemplated by the provisions
of Section 11 hereof.
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Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the offices of Xxxxxxx
Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx, at
10:00 a.m., St. Petersburg, Florida time, on such date or dates (the "Additional
Closing Date") (which may be the same as the Closing Date, but shall in no event
be earlier than the Closing Date nor earlier than three nor later than ten
business days after the giving of the notice hereinafter referred to) as shall
be specified in a written notice, from the Representative on behalf of the
Underwriters to the Company, of the Underwriters' determination to purchase a
number, specified in such notice, of Additional Shares. Such notice may be given
at any time within 30 days after the date of the Prospectus and must set forth
(i) the aggregate number of Additional Shares as to which the Underwriters are
exercising the option and (ii) the names and denominations in which the
certificates for which the Additional Shares are to be registered. The place of
closing for the Additional Shares and the Additional Closing Date may be varied
by agreement between you and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 1:00 p.m., St. Petersburg, Florida time, not later
than the second full business day preceding the Closing Date or the Additional
Closing Date, as the case may be. Such certificates shall be made available to
you in St. Petersburg, Florida for inspection and packaging not later than 9:30
a.m., St. Petersburg, Florida time, on the business day immediately preceding
the Closing Date or the Additional Closing Date, as the case may be. The
certificates evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date or the
Additional Closing Date, as the case may be, against payment of the purchase
price therefor by wire transfer of immediately available funds to an account
specified in writing, which specification shall occur not later than the close
of business on the business day next preceding the Closing Date or the
Additional Closing Date, as the case may be, by the Company and the Selling
Stockholders. Payment for the Shares sold by the Company hereunder shall be
delivered by the Representative to the Company. Payment for the Shares sold by
the Selling Stockholders hereunder shall be delivered by the Representative to
the Custodian (as defined herein).
It is understood that the Representative has been authorized, for its
own account and the accounts of the several Underwriters, to accept delivery of
and receipt for, and make payment of the purchase price per Share for the Firm
Shares and the Additional Shares, if any, that the Underwriters have agreed to
purchase. Xxxxxxx Xxxxx and Associates, Inc., individually and not as
Representative of the Underwriters, may, but shall not be obligated to, make
payment for any Shares to be purchased by any Underwriter whose funds shall not
have been received by the Representative by the Closing Date or the Additional
Closing Date, as the case may be, for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any of its obligations
under this Agreement.
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Each Selling Stockholder hereby agrees that (i) it will pay all stock
transfer taxes, stamp duties and other similar taxes, if any, payable upon the
sale or delivery of the Shares to be sold by such Selling Stockholder to the
several Underwriters, or otherwise in connection with the performance of such
Selling Stockholder's obligations hereunder and (ii) the Custodian is authorized
to deduct for such payment any such amounts from the proceeds to such Selling
Stockholder hereunder and to hold such amounts for the account of such Selling
Stockholder with the Custodian under the Custody Agreement (as defined herein).
5. Covenants and Agreements
5.1 Of the Company. The Company covenants and agrees with the
several Underwriters as follows:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become effective, if it has
not already become effective, and will advise you promptly and, if requested by
you, will confirm such advice in writing (i) when the Registration Statement has
become effective and the time and date of any filing of any post-effective
Registration Statement or any amendment or supplement to any Preliminary
Prospectus or the Prospectus and the time and date that any post-effective
amendment to the Registration Statement becomes effective, (ii) if Rule 430A
under the Act is employed, when the Prospectus has been timely filed pursuant to
Rule 424(b) under the Act, (iii) of the receipt of any comments of the
Commission, or any request by the Commission for amendments or supplements to
the Registration Statement, any Preliminary Prospectus or the Prospectus or for
additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purposes and (v) within the period of time
referred to in Section 5(h) below, of any change in the Company's condition
(financial or other), business, prospects, properties, net worth or results of
operations, or of any event that comes to the attention of the Company that
makes any statement made in the Registration Statement or the Prospectus (as
then amended or supplemented) untrue in any material respect or that requires
the making of any additions thereto or changes therein in order to make the
statements therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading in any material respect, or of the
necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal or lifting of such order at the earliest possible time. The
Company will provide the Underwriters with copies of the form of Prospectus, in
such number as the Underwriters may reasonably request, and file with the
Commission such Prospectus in accordance with Rule 424(b) of the Act before the
close of business on the first business day immediately following the date
hereof.
(b) The Company will furnish to you, without charge, two signed
duplicate originals of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits thereto, and will also furnish to you, without charge, such number of
conformed copies of the Registration Statement as originally filed and of each
amendment thereto as you may reasonably request.
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(c) The Company will promptly file with the Commission any
amendment or supplement to the Registration Statement or the Prospectus that
may, in the judgment of the Company or the Representatives, be required by the
Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or
supplement to the Registration Statement or to the Prospectus or any Issuer Free
Writing Prospectus to the Representative and obtain your consent prior to filing
any of those with the Commission, which consent shall not be unreasonably
withheld or delayed.
(e) The Company will retain in accordance with the Act all
Issuer Free Writing Prospectuses not required to be filed pursuant to the Act;
and if at any time after the date hereof any events shall have occurred as a
result of which any Issuer Free Writing Prospectus, as then amended or
supplemented, would conflict with the information in the Registration Statement,
the most recent Preliminary Prospectus or the Prospectus or would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or, if for any other reason it shall be
necessary to amend or supplement any Issuer Free Writing Prospectus, to notify
you and, upon your request, to file such document and to prepare and furnish
without charge to each Underwriter as many copies as they may from time to time
reasonably request of an amended or supplemented Issuer Free Writing Prospectus
that will correct such conflict, statement or omission or effect such
compliance;
(f) Prior to the execution and delivery of this Agreement, the
Company has delivered or will deliver to you, without charge, in such quantities
as you have requested or may hereafter reasonably request, copies of each form
of the Preliminary Prospectus. Consistent with the provisions of Section 5(h)
hereof, the Company consents to the use, in accordance with the provisions of
the Act and with the securities or Blue Sky laws of the jurisdictions in which
the Shares are offered by the several Underwriters and by dealers, prior to the
date of the Prospectus, of each Preliminary Prospectus so furnished by the
Company.
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(g) As soon after the execution and delivery of this Agreement
as is practicable and thereafter from time to time for such period as in the
reasonable opinion of counsel for the Underwriters a prospectus is required by
the Act to be delivered in connection with sales by any Underwriter or a dealer
(the "Prospectus Delivery Period"), and for so long a period as you may request
for the distribution of the Shares, the Company will deliver to each Underwriter
and each dealer, without charge, as many copies of the Prospectus and the Time
of Sale Information (and of any amendment or supplement thereto) as they may
reasonably request. The Company consents to the use of the Prospectus and the
Time of Sale Information (and of any amendment or supplement thereto) in
accordance with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in which the Shares are offered by the several
Underwriters and by all dealers to whom Shares may be sold, both in connection
with the offering and sale of the Shares and for such period of time thereafter
as the Prospectus is required by the Act to be delivered in connection with
sales by any Underwriter or dealer. If at any time prior to the later of (i) the
completion of the distribution of the Shares pursuant to the offering
contemplated by the Registration Statement or (ii) the expiration of prospectus
delivery requirements with respect to the Shares under Section 4(3) of the Act
and Rule 174 thereunder, any event shall occur that in the judgment of the
Company or in the opinion of counsel for the Underwriters is required to be set
forth in the Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus to comply with the Act or any other law,
the Company will forthwith prepare and, subject to Section 5(a) hereof, file
with the Commission and use its best efforts to cause to become effective as
promptly as possible an appropriate supplement or amendment thereto, and will
furnish to each Underwriter who has previously requested Prospectuses, without
charge, a reasonable number of copies thereof.
(h) The Company will cooperate with you and counsel for the
Underwriters in connection with the registration or qualification of the Shares
for offering and sale by the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as you may reasonably
designate and will file such consents to service of process or other documents
as may be reasonably necessary in order to effect and maintain such registration
or qualification for so long as required to complete the distribution of the
Shares; provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to general service of process in suits, other than
those arising out of the offering or sale of the Shares, as contemplated by this
Agreement and the Prospectus, in any jurisdiction where it is not now so
subject. In the event that the qualification of the Shares in any jurisdiction
is suspended, the Company shall so advise you promptly in writing.
(i) The Company will make generally available to its security
holders an earnings statement (in form complying with the provisions of Rule
158), which need not be audited, covering a twelve-month period commencing after
the effective date of the Registration Statement and the Rule 462 Registration
Statement, if any, and ending not later than 15 months thereafter, as soon as
practicable after the end of such period, which earnings statement shall satisfy
the provisions of Section 11(a) of the Act.
(j) During the period ending three years from the date hereof,
the Company will furnish to you and, upon your request, to each of the other
Underwriters, (i) as soon as available, a copy of each proxy statement,
quarterly or annual report or other report of the Company mailed to stockholders
or filed with the Commission, the NASD or NASDAQ Stock Market, Inc. ("NASDAQ")
or any national securities exchange and (ii) from time to time such other
information concerning the Company as you may reasonably request.
(k) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provision hereof (except pursuant to a
termination under Section 12 hereof) or if this Agreement shall be terminated by
the Underwriters because of any inability, failure or refusal on the part of the
Company to perform in all material respects any agreement herein or to comply in
all material respects with any of the terms or provisions hereof or to fulfill
in all material respects any of the conditions of this Agreement, the Company
agrees to reimburse you and the other Underwriters for all out-of-pocket
expenses (including travel expenses and reasonable fees and expenses of counsel
for the Underwriters, but excluding wages and salaries paid by you) reasonably
incurred by you in connection herewith.
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(l) The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder in accordance in all material respects with
the statements under the caption "Use of Proceeds" in the Prospectus.
(m) For a period commencing on the date hereof and ending on the
180th day after the date of the Prospectus (the "Lock-Up Period"), the Company
will not, directly or indirectly, (1) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device that is designed to, or
could be expected to, result in the disposition by any person at any time in the
future of) any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the Common Stock issued pursuant to
this Agreement or employee benefit plans, qualified stock option plans or other
employee compensation plans, or recapitalization agreements existing on the date
hereof and listed on Schedule V hereto, or pursuant to currently outstanding
options, warrants or rights and other than Common Stock or other securities of
the Company sold in a private transaction in which the recipient of such
securities agrees to be bound by the restrictions in this Section 5.1(m)), or
sell or grant options, rights or warrants with respect to any shares of Common
Stock or securities convertible into or exchangeable for Common Stock (other
than the grant of options, rights, warrants or restricted stock pursuant to
plans existing on the date hereof), (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of such shares of Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or other securities, in cash or otherwise, (3) file or cause to be
filed a registration statement, including any amendments, with respect to the
registration of any shares of Common Stock or securities convertible,
exercisable or exchangeable into Common Stock or any other securities of the
Company or (4) publicly disclose the intention to do any of the foregoing, in
each case without the prior written consent of the Representative on behalf of
the Underwriters, notwithstanding the foregoing, if (1) during the last 17 days
of the Lock-Up Period, the Company issues an earnings release or announces
material news or a material event relating to the Company occurs or (2) prior to
the expiration of the Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the
Lock-Up Period, then the restrictions imposed in this paragraph shall continue
to apply until the expiration of the 18-day period beginning on the date of
issuance of the earnings release or the announcement of the material news or the
occurrence of the material event, unless the Representative, on behalf of the
Underwriters, waives such extension in writing.
(n) Prior to the Closing Date or the Additional Closing Date, as
the case may be, the Company will furnish to you, as promptly as possible,
copies of any unaudited interim financial statements of the Company and its
subsidiaries for any period subsequent to the periods covered by the financial
statements appearing in the Prospectus.
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(o) The Company will comply with all provisions of any
undertakings contained in the Registration Statement.
(p) The Company will not at any time, directly or indirectly,
take any action designed, or which might reasonably be expected to cause or
result in, or which will constitute, stabilization or manipulation of the price
of the shares of Common Stock to facilitate the sale or resale of any of the
Shares.
(q) The Company will timely file with NASDAQ all documents and
notices required by NASDAQ of companies that have or will issue securities that
are traded on
NASDAQ.
(r) The Company shall engage and maintain, at its expense, a
transfer agent and, if necessary under the jurisdiction of its incorporation or
the rules of any national securities exchange on which the Common Stock will be
listed, a registrar (which, if permitted by applicable laws and rules may be the
same entity as the transfer agent) for the Common Stock.
(s) In connection with the Directed Share Program, the Company
shall use its reasonable efforts to ensure that the Directed Shares will be
restricted to the extent required by the NASD or the NASD rules from sale,
transfer, assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement. The DSP
Underwriter will notify the Company as to which DSP Participants will need to be
so restricted. The Company shall direct the transfer agent to place stop
transfer restrictions upon such securities for such period of time. Should the
Company release, or seek to release, from such restrictions any of the Directed
Shares, the Company shall reimburse the Underwriters for any reasonable expenses
(including, without limitation, legal expenses) they incur in connection with
such release.
5.2 Of Each Selling Stockholder. Each Selling Stockholder covenants
and agrees, severally and not jointly, with the several Underwriters as follows:
(a) Such Selling Stockholder will execute and deliver to the
Representative a Lock-Up Agreement, in the form of Exhibit A attached hereto.
(b) Such Selling Stockholder will review the Prospectus and will
comply with all agreements and satisfy all conditions on its part to be complied
with or satisfied pursuant to this Agreement on or prior to the Closing Date and
will advise you prior to the Closing Date if any statements to be made on behalf
of such Selling Stockholder in the certificate contemplated by Section 9(l)
hereof would be inaccurate if made as of the Closing Date.
(c) On the Closing Date, all stock transfer and other taxes
(other than income taxes) that are required to be paid upon the sale and
transfer of the Firm Shares to be sold by such Selling Stockholder to the
Underwriters hereunder will have been fully paid for by such Selling
Stockholder.
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(d) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), and the regulations promulgated thereunder, with respect
to the transactions herein contemplated, such Selling Stockholder shall deliver
to you at least two days prior to the Closing Date a properly completed and
executed United States Treasury Department Substitute Form W-9.
6. Representations and Warranties.
6.1 Of the Company. The Company hereby represents and warrants
to each Underwriter on the date hereof, and shall be deemed to represent and
warrant to each Underwriter on the Closing Date and the Additional Closing Date,
as the case may be, that:
(a) The Company was not at the time of initial filing of the
Registration Statement and at the earliest time thereafter that the Company or
another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) of the Act) of the Shares, is not on the date hereof and will not be
on the applicable Delivery Date an "ineligible issuer" (as defined in Rule 405).
(b) The Registration Statement conformed, and any amendment to
the Registration Statement filed after the date hereof will conform, when filed,
in all material respects with the requirements of the Act. The Preliminary
Prospectus conformed, and the Prospectus will conform, in all material respects,
when filed with the Commission pursuant to Rule 424(b), with the requirements of
the Act.
(c) The Registration Statement did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; provided, that no representation or warranty is made as to
information contained in or omitted from the Registration Statement in reliance
upon and in conformity with written information furnished to the Company through
the Representative by or on behalf of any Underwriter specifically for inclusion
therein.
(d) The Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in or omitted
from the Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representative by or on behalf of any
Underwriter specifically for inclusion therein.
(e) The Time of Sale Information, all considered together, did
not and will not through the Closing Date contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in or omitted
from the Time of Sale Information in reliance upon and in conformity with
written information furnished to the Company through the Representative by or on
behalf of any Underwriter specifically for inclusion therein.
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(f) Each Issuer Free Writing Prospectus (including, without
limitation, any road show that is a free writing prospectus under Rule 433),
when considered together with the Time of Sale Information as of the Time of
Sale, did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(g) Each Issuer Free Writing Prospectus conformed or will conform
in all material respects to the requirements of the Act on the date of first
use, and the Company has complied with all prospectus delivery and any filing
requirements applicable to such Issuer Free Writing Prospectus pursuant to the
Act. The Company has retained in accordance with the Act all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the Act. The Company
has made available a "bona fide electronic road show," as defined in Rule 433,
in compliance with Rule 433(d)(8)(ii), such that no filing of any "road show" as
defined in Rule 433(b) is required in connection with the offering of the
shares.
(h) There are no Issuer Free Writing Prospectuses other than
those (i) that are listed on Schedule III and (ii) for which consent has been
given by you pursuant to Section 5.1(e).
(i) The capitalization of the Company is as set forth in the Time
of Sale Information as of the date set forth therein. The capitalization of the
Company will be as set forth in the Prospectus as of the date set forth therein.
All the outstanding shares of Common Stock of the Company have been, and as of
the Closing Date and the Additional Closing Date, as the case may be, will be,
duly authorized and validly issued, are fully paid and nonassessable and are
free of any preemptive or similar rights; except as set forth in the Time of
Sale Information and the Prospectus, the Company is not a party to or bound by
any outstanding options, warrants or similar rights to subscribe for, or
contractual obligations to issue, sell, transfer or acquire, any of its capital
stock or any securities convertible into or exchangeable for any of such capital
stock; the Shares to be issued and sold to the Underwriters by the Company
hereunder have been duly authorized and, when issued and delivered to the
Underwriters against full payment therefor in accordance with the terms hereof
will be validly issued, fully paid and nonassessable and free of any preemptive
or similar rights; the capital stock of the Company conforms to the description
thereof in the Registration Statement, the Time of Sale Information and the
Prospectus (or any amendment or supplement thereto); and the delivery of
certificates for the Shares being sold by the Company against payment therefor
pursuant to the terms of this Agreement will pass valid title to the Shares
being sold by the Company, free and clear of any claim, encumbrance or defect in
title, to the several Underwriters purchasing such shares in good faith and
without notice of any lien, claim or encumbrance. The certificates for the
Shares being sold by the Company are in valid and sufficient form.
(j) The Company is a corporation duly organized and validly
existing as a corporation in good standing under the laws of the state of its
incorporation with full corporate power and authority to own, lease and operate
its properties and to conduct its business as presently conducted and as
described in the Registration Statement, the Time of Sale Information and the
Prospectus (and any amendment or supplement thereto) and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure to so
register or qualify has not had or will not have a material adverse effect on
the condition (financial or other), business, properties, net worth, results of
operations or prospects of the Company (a "Material Adverse Effect").
-11-
(k) The Company does not have any subsidiaries and does not own a
material interest in or control, directly or indirectly, any other corporation,
partnership, joint venture, association, trust or other business organization.
As used in this Agreement, subsidiaries shall mean direct and indirect
subsidiaries of the Company.
(l) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened, against the Company or to which the
Company or any of their properties are subject, that are required to be
described in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) but are not described as required. Except as described in
the Registration Statement, the Time of Sale Information and Prospectus, there
is no action, suit, inquiry, proceeding or investigation by or before any court
or governmental or other regulatory or administrative agency or commission
pending or, to the best knowledge of the Company, threatened, against or
involving the Company, which might individually or in the aggregate prevent or
adversely affect the transactions contemplated by this Agreement or result in a
Material Adverse Effect, nor to the Company's knowledge, is there any basis for
any such action, suit, inquiry, proceeding or investigation. There are no
agreements, contracts, indentures, leases or other instruments that are required
to be described in the Registration Statement, the Time of Sale Information or
the Prospectus (or any amendment or supplement thereto) or to be filed as an
exhibit to the Registration Statement that are not described, filed or
incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus as required by the Act. All such contracts to
which the Company is a party have been duly authorized, executed and delivered
by the Company, constitute valid and binding agreements of the Company and are
enforceable against the Company in accordance with the terms thereof, except as
enforceability thereof may be limited by (i) the application of bankruptcy,
reorganization, insolvency and other laws affecting creditors' rights generally
and (ii) equitable principles being applied at the discretion of a court before
which any proceeding may be brought. The Company has not received notice or been
made aware that any other party is in breach of or default to the Company under
any of such contracts.
(m) The Company is not (i) in violation of (A) its certificate of
incorporation or bylaws, or other organizational documents, (B) any law,
ordinance, administrative or governmental rule or regulation applicable to the
Company or any of its subsidiaries, the violation of which would have a Material
Adverse Effect or (C) any decree of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries; or (ii) in
default in any material respect in the performance of any obligation, agreement
or condition contained in (A) any bond, debenture, note or any other evidence of
indebtedness or (B) any agreement, indenture, lease or other instrument (each of
(A) and (B), an "Existing Instrument") to which the Company is a party or by
which any of its properties may be bound, which default would have a Material
Adverse Effect; and there does not exist any state of facts that constitutes an
event of default on the part of the Company as defined in such documents or
that, with notice or lapse of time or both, would constitute such an event of
default.
-12-
(n) The Company's execution and delivery of this Agreement and
the performance by the Company of its obligations under this Agreement have been
duly and validly authorized by the Company; this Agreement has been duly
executed and delivered by the Company; and this Agreement constitutes a valid
and legally binding agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent enforceability may be limited by
(i) the application of bankruptcy, reorganization, insolvency and other laws
affecting creditors' rights generally and (ii) equitable principles being
applied at the discretion of a court before which any proceeding may be brought,
except as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws.
(o) None of the issuance and sale of the Shares by the Company,
the execution, delivery or performance of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby (i) requires
any consent, approval, authorization or other order of or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required for the registration of
the Shares under the Act, the listing of the Shares for trading on NASDAQ, the
registration of the Common Stock under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") and compliance with the securities or Blue
Sky laws of various jurisdictions, all of which will be, or have been, effected
in accordance with this Agreement and except for the NASD's clearance of the
underwriting terms of the offering contemplated hereby as required under the
NASD's Rules of Fair Practice), (ii) conflicts with or will conflict with or
constitutes or will constitute a breach of, or a default under, the Company's
certificate of incorporation or the Company's bylaws or any agreement,
indenture, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which any of its properties may be bound, (iii)
violates any statute, law, regulation, ruling, filing, judgment, injunction,
order or decree applicable to the Company or any of its subsidiaries or any of
their properties, or (iv) results in a breach of, or default or Debt Repayment
Triggering event (as defined below) under, or results in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, or requires the consent of any
other party to, any Existing Instrument, except for such consents, approvals,
authorizations, orders, registrations, filings, conflicts, breaches, defaults,
liens, charges or encumbrances that will not, individually or in the aggregate,
result in a Material Adverse Effect. As used herein, a "Debt Repayment
Triggering Event" means any event or condition that gives, or with the giving of
notice or lapse of time would give, the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any of its subsidiaries.
-13-
(p) Except as described in the Time of Sale Information and the
Prospectus, and except for options to purchase capital stock issued pursuant to
the Company's 2000 Stock Incentive Plan, neither the Company nor any of its
subsidiaries has outstanding and at the Closing Date and the Additional Closing
Date, as the case may be, will have outstanding any options to purchase, or any
warrants to subscribe for, or any securities or obligations convertible into, or
any contracts or commitments to issue or sell, any shares of Common Stock or any
such warrants or convertible securities or obligations. No holder of securities
of the Company has rights to the registration of any securities of the Company,
other than the Selling Stockholders with respect to the Shares included in the
Registration Statement, as a result of or in connection with the filing of the
Registration Statement or the consummation of the transactions contemplated
hereby that have not been satisfied or heretofore waived in writing.
(q) Xxxxx Xxxxxxx LLP, the certified public accountants who have
certified the financial statements (including the related notes thereto and
supporting schedules) filed as part of the Registration Statement and the
Prospectus (or any amendment or supplement thereto), are independent public
accountants as required by the Act and the Exchange Act.
(r) The financial statements, together with related schedules and
notes, included in the Registration Statement, the Time of Sale Information and
the Prospectus (and any amendment or supplement thereto), present fairly in all
material respects the financial condition, results of operations, cash flows and
changes in financial position of the Company on the basis stated in the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set forth
in the Registration Statement and Prospectus (and any amendment or supplement
thereto) is in all material respects accurately presented and prepared on a
basis consistent with such financial statements and the books and records of the
Company.
The financial statements of Bobcat Pressure Control, Inc. ("Bobcat"),
together with related schedules and notes, included in the Registration
Statement, the Time of Sale Information and the Prospectus (and any amendment or
supplement thereto), present fairly in all material respects the financial
condition, results of operations, cash flows and changes in financial position
of Bobcat on the basis stated in the Registration Statement at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Registration Statement and Prospectus (and
any amendment or supplement thereto) is in all material respects accurately
presented and prepared on a basis consistent with such financial statements and
the books and records of Bobcat.
-14-
The pro forma condensed financial statements together with related
notes thereto included in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) present fairly the information contained
therein, have been prepared in accordance with the Commission's rules and
regulations with respect to pro forma financial statements and have been
properly presented on the bases described therein. Additionally, the assumptions
used in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances referred to
therein.
No other financial statements or schedules are required to be included
in the Registration Statement.
(s) Except as disclosed in the Registration Statement, the Time
of Sale Information and the Prospectus (or any amendment or supplement thereto),
subsequent to the respective dates as of which such information is given in the
Registration Statement, (i) the Company has not incurred any material
liabilities or obligations, indirect, direct or contingent, or entered into any
transaction that is not in the ordinary course of business, (ii) the Company has
not sustained any material loss or interference with its business or properties
from fire, flood, windstorm, accident or other calamity, whether or not covered
by insurance, (iii) the Company has not paid or declared any dividends or other
distributions with respect to its capital stock and the Company is not in
default under the terms of any class of capital stock of the Company or any
outstanding debt obligations, (iv) there has not been any change in the
authorized or outstanding capital stock of the Company or any material change in
the indebtedness of the Company (other than in the ordinary course of business)
and (v) there has not been any material adverse change, or any development
involving or that may reasonably be expected to result in a Material Adverse
Effect, in the condition (financial or otherwise), business, properties, net
worth or result of operations of the Company.
(t) All offers and sales of the Company's capital stock and other
debt or other securities prior to the date hereof were made in compliance with
or were the subject of an available exemption from the Act and all other
applicable state and federal laws or regulations, or any actions under the Act
or any state or federal laws or regulations in respect of any such offers or
sales are effectively barred by effective waivers or statutes of limitation.
(u) The Common Stock (including the Shares) is registered
pursuant to Section 12(g) of the Exchange Act. The Shares have been approved for
quotation on the NASDAQ National Market under the symbol "WARR", subject to
official notice of issuance of the Shares being sold by the Company, and upon
consummation of the offering contemplated hereby the Company will be in
compliance with NASDAQ's designation and maintenance criteria applicable to the
Company.
(v) Other than excepted activity pursuant to Regulation M under
the Exchange Act, the Company has not taken and will not take, directly or
indirectly, any action that constituted, or any action designed to, or that
might reasonably be expected to cause or result in or constitute, under the Act
or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares or for any other purpose.
(w) The Company and each of its subsidiaries have filed all tax
returns required to be filed (other than certain state or local tax returns, as
to which the failure to file, individually or in the aggregate, would not have a
Material Adverse Effect), which returns are complete and correct, and neither
the Company nor any subsidiary is in default in the payment of any taxes that
were payable pursuant to said returns or any assessments with respect thereto.
Except as disclosed in the Time of Sale Information and the Prospectus, all
deficiencies asserted as a result of any federal, state, local or foreign tax
audits have been paid or finally settled and no issue has been raised in any
such audit that, by application of the same or similar principles, reasonably
could be expected to result in a proposed deficiency for any other period not so
audited. There are no outstanding agreements or waivers extending the statutory
period of limitation applicable to any federal, state, local or foreign tax
return for any period. On the Closing Date and the Additional Closing Date, as
the case may be, all stock transfer and other taxes that are required to be paid
in connection with the sale of the shares to be sold by the Company to the
Underwriters will have been fully paid by the Company and all laws imposing such
taxes will have been complied with.
-15-
(x) Except as set forth in the Time of Sale Information and the
Prospectus, there are no transactions with "affiliates" (as defined in Rule 405
promulgated under the Act) or any officer, director or security holder of the
Company (whether or not an affiliate) that are required by the Act to be
disclosed in the Registration Statement. Additionally, no relationship, direct
or indirect, exists between the Company or any of its subsidiaries on the one
hand, and the directors, officers, stockholders, customers or suppliers of the
Company or any subsidiary on the other hand that is required by the Act to be
disclosed in the Registration Statement, the Time of Sale Information and the
Prospectus that is not so disclosed.
(y) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an investment company
within the meaning of the Investment Company Act of 1940, as amended.
(z) Except as otherwise disclosed in the Time of Sale Information
and the Prospectus, each of the Company and its subsidiaries has good and valid
title to all property (real and personal) described in the Time of Sale
Information and the Prospectus as being owned by it, free and clear of all
liens, claims, security interests or other encumbrances except (i) such as are
described in the Time of Sale Information or the Prospectus or (ii) such as are
not materially burdensome and do not have or will not result in a Material
Adverse Effect to the use of the property or the conduct of the business of the
Company. All property (real and personal) held under lease by the Company and
its subsidiaries is held by it under valid, subsisting and enforceable leases
with only such exceptions as are described in the Time of Sale Information or
the prospectus or in the aggregate are not materially burdensome and do not have
or result in a Material Adverse Effect to the use of the property or the conduct
of the business of the Company.
(aa) Each of the Company and its subsidiaries has all permits,
licenses, franchises, approvals, consents and authorizations of governmental or
regulatory authorities (hereinafter "permit" or "permits") as are necessary to
own its properties and to conduct its business in the manner described in the
Time of Sale Information and the Prospectus, subject to such qualifications as
may be set forth in the Time of Sale Information and the Prospectus, except
where the failure to have obtained any such permit has not had and will not have
a Material Adverse Effect; each of the Company and its subsidiaries has operated
and is operating its business in material compliance with and not in material
violation of all of its obligations with respect to each such permit and no
event has occurred that allows, or after notice or lapse of time would allow,
revocation or termination of any such permit or result in any other material
impairment of the rights of any such permit, subject in each case to such
qualification as may be set forth in the Time of Sale Information and the
Prospectus; and, except as described in the Time of Sale Information and the
Prospectus, such permits contain no restrictions that are materially burdensome
to the Company or any of its subsidiaries.
-16-
(bb) The Company and its subsidiaries maintain 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
authorizations 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.
(cc) Neither the Company nor, to the Company's knowledge, any
employee or agent of the Company, acting in such capacity, has, directly or
indirectly, (i) made any unlawful contribution to any candidate for political
office, or failed to disclose fully any contribution in violation of law or (ii)
made any payment to any federal, state, local or foreign governmental official,
or other person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof or applicable foreign jurisdictions.
(dd) The Company is (i) in compliance with any and all applicable
federal, state, local and foreign laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or other approvals would not,
individually or in the aggregate, have a Material Adverse Effect. The Company
has not been named as a "potentially responsible party" under the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended. The
Company does not own, lease or occupy any property that appears on any list of
hazardous sites compiled by any state or local governmental agency.
(ee) Except as otherwise disclosed in the Time of Sale
Information of the Prospectus, the Company owns and has full right, title and
interest in and to, or has valid licenses to use, each material trade name,
trademark, service xxxx, patent, copyright, approval, trade secret and other
similar rights (collectively "Intellectual Property") under which the Company
conducts all or any material part of its business, and the Company has not
created any lien or encumbrance on, or granted any right or license with respect
to, any such Intellectual Property except where the failure to own or obtain a
license or right to use any such Intellectual Property has not and will not have
a Material Adverse Effect; there is no claim pending against the Company with
respect to any Intellectual Property, and the Company has not received notice or
otherwise become aware that any Intellectual Property that it uses or has used
in the conduct of its business infringes upon or conflicts with the rights of
any third party. The Company has not become aware that any material Intellectual
Property that it uses or has used in the conduct of its business infringes upon
or conflicts with the rights of any third party.
-17-
(ff) The Company has procured Lock-Up Agreements, substantially
in the form of Exhibit A attached hereto, from each of the Company's executive
officers and directors and the Selling Stockholders.
(gg) Except as previously disclosed in writing to the
Underwriters, no officer, director or nominee for director of the Company has a
direct or indirect affiliation or association with any member of the NASD.
(hh) Except as otherwise disclosed in the Time of Sale
Information of the Prospectus, the Company and each of its subsidiaries are
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in
which it is engaged; and neither the Company nor any of its subsidiaries has
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a comparable
cost.
(ii) In the ordinary course of its business, the Company reviews
the effect of Environmental Laws on the business, operations and properties of
the Company and its subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). On the
basis of such review and amount of its established reserves, the Company has
reasonably concluded that such associated costs and liabilities would not,
individually or in the aggregate, result in a Material Adverse Effect.
(jj) The Company and its subsidiaries and any "employee benefit
plan" (as defined under the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and published interpretations thereunder
(collectively, "ERISA")) established or maintained by the Company, its
subsidiaries or their "ERISA Affiliates" (as defined below) are in compliance in
all material respects with ERISA and all other applicable state and federal
laws. "ERISA Affiliate" means, with respect to the Company or a subsidiary, any
member of any group or organization described in Sections 414(b), (c), (m) or
(o) of the Code of which the Company or such subsidiary is a member. No
"reportable event" (as defined in ERISA) has occurred or is reasonably expected
to occur with respect to any "employee benefit plan" established or maintained
by the Company, its subsidiaries or any of their ERISA Affiliates. No "employee
benefit plan" established or maintained by the Company, its subsidiaries or any
of their ERISA Affiliates, if such "employee benefit plan" were terminated,
would have any "amount of unfunded benefit liabilities" (as defined in ERISA).
Neither the Company, its subsidiaries nor any of their ERISA Affiliates has
incurred or reasonably expects to incur any liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any "employee benefit
plan" or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee
benefit plan" established or maintained by the Company, its subsidiaries or any
of their ERISA Affiliates that is intended to be qualified under Section 401(a)
of the Code is so qualified and nothing has occurred, whether by action or
failure to act, that would cause the loss of such qualification.
-18-
(kk) The Company and its subsidiaries have complied and will
comply in all material respects with wage and hour determinations issued by the
U.S. Department of Labor under the Service Contract Act of 1965 and the Fair
Labor Standards Act in paying its employees' salaries, fringe benefits and other
compensation for the performance of work or other duties in connection with
contracts with the U.S. government, and have complied and will comply in all
material respects with the requirements of the Americans with Disabilities Act
of 1990, the Family and Medical Leave Act of 1993, the Civil Rights Act of 1964
(Title VII), the National Labor Relations Act, the Vietnam Era Veteran's
Readjustment Act, the Age Discrimination in Employment Act, as amended by the
Older Workers' Benefit Protection Act, and federal, state and local and foreign
labor laws, each as amended except where the failure to comply with any such
requirements has not, and will not, have a Material Adverse Effect.
(ll) The Registration Statement, the Prospectus, the Time of Sale
Information and any preliminary prospectus comply, and any further amendments or
supplements thereto will comply, with any applicable laws or regulations of
foreign jurisdictions in which the Prospectus, the Time of Sale Information or
any preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program. No authorization,
approval, consent, license, order registration or qualification of or with any
government, governmental instrumentality or court, other than such as have been
obtained, is necessary under the securities laws and regulations of foreign
jurisdictions in which the Directed Shares are offered outside the United
States. The Company has not offered, or caused the Underwriters to offer,
any Shares to any person pursuant to the Directed Share Program with the intent
to unlawfully influence (x) a customer or supplier of the Company to alter the
customer's or supplier's level or type of business with the Company or (y) a
trade journalist or publication to write or publish favorable information about
the Company or its products.
6.2 Of the Selling Stockholders. Each Selling Stockholder hereby
represents and warrants, severally as to itself and not jointly, to each
Underwriter on the date hereof, and shall be deemed to represent and warrant to
each Underwriter on the Closing Date and the Additional Closing Date, that:
(a) Immediately prior to Closing, such Selling Stockholder is the
lawful owner of the Shares to be sold by such Selling Stockholder pursuant to
this Agreement and has, and on the Closing Date and the Additional Closing Date,
as the case may be, will have, good and valid title to such Shares, free of all
restrictions on transfer, liens, encumbrances, security interests, equities and
claims whatsoever.
(b) Such Selling Stockholder has, and on the Closing Date and the
Additional Closing Date, as the case may be, will have, full legal right, power
and authority, and all authorization and approval required by law, to enter into
(i) this Agreement, (ii) the Custody Agreement signed by such Selling
Stockholder and American Stock Transfer & Trust Company, as custodian (the
"Custodian"), relating to the deposit of the Shares to be sold by such Selling
Stockholder (the "Custody Agreement") and (iii) the Power of Attorney appointing
certain individuals named therein as such Selling Stockholder's
attorneys-in-fact (the "Attorneys") to the extent set forth therein relating to
the transactions contemplated hereby and by the Prospectus (the "Power of
Attorney") to sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder in the manner provided herein.
-19-
(c) Each of the Agreement, the Custody Agreement and Power of
Attorney of such Selling Stockholder has been duly authorized, executed and
delivered by such Selling Stockholder and is a valid and binding agreement of
such Selling Stockholder, enforceable as to such Selling Stockholder in
accordance with its terms, except to the extent enforceability may be limited by
(i) the application of bankruptcy, reorganization, insolvency and other laws
affecting creditors' rights generally and (ii) equitable principles being
applied at the discretion of a court before which a proceeding may be brought,
except as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and, pursuant to such Power of Attorney, such
Selling Stockholder has, among other things, authorized the Attorneys, or any
one of them, to execute and deliver on such Selling Stockholder's behalf this
Agreement and any other document that they, or any one of them, may deem
necessary or desirable in connection with the transactions contemplated hereby
and thereby and to deliver the Shares to be sold by such Selling Stockholder
pursuant to this Agreement.
(d) None of the sale of the Shares by such Selling Stockholder, the
execution, delivery or performance by such Selling Stockholder of this
Agreement, the Custody Agreement and Power of Attorney of such Selling
Stockholder by or on behalf of such Selling Stockholder, the compliance by such
Selling Stockholder with all the provisions hereof and thereof nor the
consummation by such Selling Stockholder of the transactions contemplated hereby
and thereby (i) requires any consent, approval, authorization or other order of,
or registration or filing with, any court, regulatory body or administrative
agency or other governmental body, agency or official (except such as may be
required under the securities or Blue Sky laws of the various states), (ii)
conflicts with or will conflict with or constitutes or will constitute a breach
of or a default under, the organizational documents of such Selling Stockholder,
if such Selling Stockholder is not an individual, or any agreement, indenture,
lease or other instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder or any property of such Selling Stockholder is
bound or (iii) violates any statute, law, regulation, ruling, filing, judgment,
injunction, order or decree applicable to such Selling Stockholder or any
property of such Selling Stockholder, except where such breach, violation,
default or conflict or failure to obtain consent or make a filing, individually
or in the aggregate, would not have a material adverse effect on the
consummation of by such Selling Stockholder of the transactions contemplated by
this Agreement.
(e) The information in the Prospectus under the caption "Selling
Stockholders" that specifically relates to such Selling Stockholder and which
was furnished in writing by the Selling Stockholder to the Company expressly for
use in the Prospectus does not, and will not on the Closing Date or the
Additional Closing Date, as the case may be, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
-20-
(f) At any time prior to the Closing Date or the Additional Closing
Date, as the case may be, if there is any change in the information referred to
in Section 6.2(e) hereof, such Selling Stockholder will immediately notify the
Representative of such change.
(g) Other than excepted activity pursuant to Regulation M under the
Exchange Act, such Selling Stockholder has not taken and will not take, directly
or indirectly, any action that constituted, or any action designed to, or that
might reasonably be expected to cause or result in or constitute, under the Act
or otherwise, stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares.
(h) Upon delivery of and payment for the Shares to be sold by such
Selling Stockholder pursuant to this Agreement, good and valid title to such
Shares will pass to the Underwriters, free of all restrictions on transfer,
liens, encumbrances, security interests, equities and claims whatsoever.
(i) Such Selling Stockholder does not have any registration or other
similar rights to have any equity or debt securities registered for sale by the
Company under the Registration Statement or included in the offering
contemplated by this Agreement, except for such rights as are being exercised in
the offering contemplated by this Agreement or such rights as have been duly
waived with respect to the offering contemplated by this Agreement.
(j) Such Selling Stockholder is not prompted to sell shares of Common
Stock by any material non-public information concerning the Company that is not
set forth in the Registration Statement.
(k) Such Selling Stockholder has not prepared or had prepared on its
behalf or used or referred to, and will not prepare or have prepared on its
behalf or use or refer to, any free writing prospectus, and has not distributed
and will not distribute any written materials in connection with the offer or
sale of the Shares.
-21-
7. Expenses. Whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective or is terminated, the Company
agrees to pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof and of any Preliminary Prospectus to the Underwriters and
dealers; (ii) the printing and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the Registration
Statement, the Prospectus, each Preliminary Prospectus, the Time of Sale
Information, the Blue Sky memoranda, the Master Agreement Among Underwriters,
this Agreement, the Selected Dealers Agreement and all amendments or supplements
to any of them as may be reasonably requested for use in connection with the
offering and sale of the Shares; (iii) consistent with the provisions of Section
5.1(i), all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws or Blue Sky laws, including
reasonable attorneys' fees and out-of-pocket expenses of the counsel for the
Underwriters in connection therewith; (iv) the filing fees incident to securing
any required review by the NASD of the fairness of the terms of the sale of the
Shares and the reasonable fees and disbursements of the Underwriters' counsel
relating thereto; (v) the fees and expenses associated with including the Common
Stock on NASDAQ; (vi) the cost of preparing stock certificates; (vii) the costs
and charges of any transfer agent or registrar; (viii) the cost of the tax
stamps, if any, in connection with the issuance and delivery of the Shares to
the respective Underwriters; (ix) all other fees, costs and expenses referred to
in Item 13 of the Registration Statement; (x) the transportation, lodging,
graphics and other expenses incidental to the Company's preparation for and
participation in the "roadshow" for the offering contemplated hereby; and (xi)
all costs and expenses of the Underwriters, including reasonable fees and
disbursements of counsel for the Underwriters, in connection with matters
related to the Directed Shares that are designated by the Company for sale to
DSP Participants. Except as provided in this Section 7 and in Section 8 hereof,
the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel. In addition, in the event that the proposed
offering is terminated for the reasons set forth in Section 5.1(l) hereof, the
Company agrees to reimburse the Underwriters as provided in Section 5.1(l).
8. Indemnification and Contribution. Subject to the limitations in this
paragraph below, the Company agrees to indemnify and hold harmless you and each
other Underwriter, the directors, officers, employees and agents of each
Underwriter, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses, including
reasonable costs of investigation and attorneys' fees and expenses
(collectively, "Damages") arising out of or based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, in the Registration Statement, the Time of Sale Information, any
Issuer Free Writing Prospectus or the Prospectus or in any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading, except to the extent that any such Damages
arise out of or are based upon an untrue statement or omission or alleged untrue
statement or omission that has been made therein or omitted therefrom in
reliance upon and in conformity with the information furnished in writing to the
Company by or on behalf of any Underwriter through the Representative, expressly
for use in connection therewith or (ii) any inaccuracy in or breach of the
representations and warranties of the Company contained herein or any failure of
the Company to perform its obligations hereunder or under law. This
indemnification shall be in addition to any liability that the Company may
otherwise have.
-22-
Subject to the limitations in this paragraph below, each Selling
Stockholder, severally and not jointly, agrees to indemnify and hold harmless
you and each other Underwriter, the directors, officers, employees and agents of
each Underwriter, and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any and all Damages arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or in the Registration Statement, the Time of Sale
Information, any free writing prospectus or the Prospectus or in any amendment
or supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading, except to the extent that any such Damages
arise out of or are based upon an untrue statement or omission or alleged untrue
statement or omission that has been made therein or omitted therefrom in
reliance upon and in conformity with the information not expressly relating to
the Selling Stockholders or the offering by them of their shares of Common Stock
or furnished in writing to the Company by or on behalf of any Underwriter
through you expressly for use in connection therewith or (ii) any inaccuracy in
or breach of the representations and warranties of such Selling Stockholder
contained herein or any failure of such Selling Stockholder to perform its
obligations hereunder or under law provided, however, that no Selling
Stockholder shall be liable under this Section 8 or otherwise for any amount in
excess of the net proceeds received by it (computed without deduction for any
taxes on such amount) in connection with the sale of the Shares. This
indemnification shall be in addition to any liability that the Selling
Stockholders or any Selling Stockholder may otherwise have.
If any action or claim shall be brought against any Underwriter or any
person controlling any Underwriter in respect of which indemnity may be sought
against the Company or the Selling Stockholders, such Underwriter or such
controlling person shall promptly notify in writing the party(s) against whom
indemnification is being sought (the "indemnifying party" or "indemnifying
parties"), and such indemnifying party(s) shall assume the defense thereof,
including the employment of counsel reasonably acceptable to such Underwriter or
such controlling person and the payment of all reasonable fees of and expenses
incurred by such counsel. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person, unless (i) the
indemnifying party(s) has (have) agreed in writing to pay such fees and
expenses, (ii) the indemnifying party(s) has (have) failed to assume the defense
and employ counsel reasonably acceptable to the Underwriter or such controlling
person or (iii) the named parties to any such action (including any impleaded
parties) include both such Underwriter or such controlling person and the
indemnifying party(s), and such Underwriter or such controlling person shall
have been advised by its counsel that one or more legal defenses may be
available to the Underwriters that may not be available to the Company or the
Selling Stockholders, or that representation of such indemnified party and any
indemnifying party(s) by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the indemnifying party(s) shall not have
the right to assume the defense of such action with respect to the defense or
aspect of the defense where differing interests exists on behalf of such
Underwriter or such controlling person (but the Company and the Selling
Stockholders, as applicable, shall not be liable for the fees and expenses of
more than one counsel for the Underwriters and such controlling persons)). It is
understood that the indemnifying party shall not, in respect of the legal
expenses of the Underwriters and controlling persons in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Underwriters and all controlling persons. In the case of any
such separate firm for the Underwriters and such controlling persons, such firm
shall be designated in writing by the Representatives. The indemnifying party(s)
shall not be liable for any settlement of any such action effected without its
(their several) written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, the indemnifying
party(s) agree(s) to indemnify and hold harmless any Underwriter and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment, but in the case of a judgment
only to the extent stated in the first and second paragraph of this Section 8.
-23-
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company and the Selling Stockholders, their respective
directors (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company), their
respective officers who sign the Registration Statement and any person who
controls the Company or the Selling Stockholders within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing several indemnity from the Company and the Selling Stockholders to
each Underwriter, but only with respect to information furnished in writing by
or on behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus, the Time of Sale Information, any Issuer
Free Writing Prospectus or any Preliminary Prospectus, or any amendment or
supplement thereto. This indemnification shall be in addition to any liability
that the Underwriters may otherwise have. If any action or claim shall be
brought or asserted against the Company or the Selling Stockholders, any of
their respective directors, any of their respective officers or any such
controlling person based on the Registration Statement, the Prospectus, the Time
of Sale Information or any Preliminary Prospectus, or any amendment or
supplement thereto, and in respect of which indemnity may be sought against any
Underwriter pursuant to this paragraph, such Underwriter shall have the rights
and duties given to the Company and the Selling Stockholders by the immediately
preceding and following paragraph (except that if the Company and the Selling
Stockholders shall have assumed the defense thereof such Underwriter shall not
be required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at such
Underwriter's expense), and the Company and the Selling Stockholders, their
respective directors, any such officers and any such controlling persons, shall
have the rights and duties given to the Underwriters by the immediately
preceding and following paragraph.
In any event, the Company or the Selling Stockholders will not, without
the prior written consent of the Representative (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment in any proceeding or threatened claim, action, suit or proceeding in
respect of which the indemnification may be sought hereunder (whether or not the
Representative or any person who controls the Representative within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act is a party to such
claim, action, suit or proceeding) unless such settlement, compromise or consent
includes an unconditional release of all Underwriters and such controlling
persons from all liability arising out of such claim, action, suit or
proceeding.
-24-
The Company agrees to indemnify and hold harmless the Underwriters,
their officers and employees and each person, if any, who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act against
any loss, claim, damage, liability or expense, as incurred, to which such
Underwriter or such controlling person may become subject, which (i) is caused
by any untrue statement or alleged untrue statement of a material fact contained
in any material prepared by or with the consent of the Company for distribution
to Participants in connection with the Directed Share Program or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading; (ii)
is caused by the failure of any Participant to pay for and accept delivery of
Directed Shares that such Participant agreed to purchase; (iii) arises out of or
is based upon the violation of any applicable laws or regulations of any
jurisdictions where Directed Shares have been offered; or (iv) is related to,
arising out of, or in connection with the Directed Share Program; provided,
however, that the Company shall not be liable under clauses (iii) and (iv) of
this sentence for any loss, claim, damage, liability or expense that is
determined in a final judgment by a court of competent jurisdiction to have
resulted from the willful misconduct of any Underwriter. The indemnity agreement
set forth in this paragraph shall be in addition to any liabilities that the
Company may otherwise have.
If the indemnification provided for in this Section 8 is unavailable or
insufficient for any reason whatsoever to an indemnified party in respect of any
Damages referred to herein, then an indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Damages (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders, respectively, on the one hand, and the Underwriters on the
other hand, from the offering and sale of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative and several fault of the Company
and the Selling Stockholders, respectively, on the one hand, and the
Underwriters on the other hand, in connection with the statements or omissions
that resulted in such Damages as well as any other relevant equitable
considerations. The relative and several benefits received by the Company and
the Selling Stockholders, respectively, on the one hand, and the Underwriters on
the other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus; provided that, in the event that the
Underwriters shall have purchased any Additional Shares hereunder, any
determination of the relative benefits received by the Company and the Selling
Stockholders or the Underwriters from the offering of the Shares shall include
the net proceeds (before deducting expenses) received by the Company and the
Selling Stockholders, and the underwriting discounts and commissions received by
the Underwriters, from the sale of such Additional Shares, in each case computed
on the basis of the respective amounts set forth on the cover page of the
Prospectus. The relative fault of the Company and the Selling Stockholders,
respectively, on the one hand, and the Underwriters on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or 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.
-25-
The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 8
was determined by a pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take into account the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the Damages referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount of the underwriting
commissions received by such underwriter in connection with the Shares
underwritten by it and distributed to the public. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 8 are several in proportion to the respective numbers of Firm Shares set
forth opposite their names in Schedule I hereto (or such numbers of Firm Shares
increased as set forth in Section 10 hereof) and not joint.
Notwithstanding the third paragraph of this Section 8, any Damages for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as Damages are incurred after receipt of reasonably itemized invoices therefor.
The indemnity, contribution and reimbursement agreements contained in this
Section 8 and the several, and not joint, representations and warranties of the
Company and the Selling Stockholders set forth in this Agreement shall remain
operative and in full force and effect, regardless of (i) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter,
the Company, the Selling Stockholders, their respective directors or officers or
any person controlling the Company or the Selling Stockholders, (ii) acceptance
of any Shares and payment therefor hereunder and (iii) any termination of this
Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the Company or the Selling Stockholders, their respective
directors or officers or any person controlling the Company or the Selling
Stockholders, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 8.
It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in the third paragraph of this
Section 8, including the amounts of any requested reimbursement payments and the
method of determining such amounts, shall be settled by arbitration conducted
pursuant to the Code of Arbitration Procedure of the NASD. Any such arbitration
must be commenced by service of a written demand for arbitration or written
notice of intention to arbitrate, therein electing the arbitration tribunal. In
the event the party demanding arbitration does not make 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. Such arbitration would be limited to
the operation of the interim reimbursement provisions contained in the third and
fifth paragraphs of this Section 8, and would not resolve the ultimate propriety
or enforceability of the obligation to reimburse expenses that is created by the
provisions of the third paragraph of this Section 8.
-26-
9. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) The Registration Statement shall have become effective not later
than 4:00 p.m., New York City time, on the date hereof, or at such later date
and time as shall be consented to in writing by the Representative, and all
filings required by Rules 424(b), 430A and 462 under the Act shall have been
timely made.
(b) You shall be reasonably satisfied that since the respective dates
as of which information is given in the Registration Statement, the Time of Sale
Information and Prospectus, (i) except as set forth or contemplated by the
Registration Statement, there shall not have been any change in the capital
stock of the Company or any material change in the indebtedness (other than in
the ordinary course of business) of the Company, (ii) except as set forth or
contemplated by the Registration Statement, the Time of Sale Information or the
Prospectus, no material oral or written agreement or other transaction shall
have been entered into by the Company that is not in the ordinary course of
business or that could reasonably be expected to result in a material reduction
in the future earnings of the Company, (iii) no loss or damage (whether or not
insured) to the property of the Company shall have been sustained that had or
could reasonably be expected to have a Material Adverse Effect, (iv) no legal or
governmental action, suit or proceeding affecting the Company or any of its
properties that is material to the Company or that affects or could reasonably
be expected to affect the transactions contemplated by this Agreement shall have
been instituted or threatened and (v) there shall not have been any material
change in the condition (financial or otherwise), business, management, results
of operations or prospects of the Company or its subsidiaries that makes it
impractical or inadvisable in your judgment to proceed with the public offering
or purchase of the Shares as contemplated hereby.
(c) You shall have received on the Closing Date (and the Additional
Closing Date, if any) an opinion of Xxxxx Xxxxx L.L.P., counsel to the Company,
substantially to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware, with
full 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 (and any amendment or supplement thereto),
and is duly registered or otherwise qualified to conduct its business
as a foreign corporation and is in good standing in the State of Texas.
(ii) The capitalization of the Company conforms in all material
respects to the description thereof contained in the Prospectus under
the caption "Capitalization" and the Shares conform in all material
respects to the description of the Common Stock in the Prospectus.
(iii) All shares of capital stock of the Company outstanding
prior to the issuance of the Shares to be issued and sold by the
Company hereunder, including the shares of Common Stock owned by the
Selling Stockholders, have been duly authorized and validly issued, are
fully paid and nonassessable and are free of any preemptive or similar
rights arising under the Company's certificate of incorporation or
bylaws or under any agreement known to such counsel that entitle or
will entitle any person to acquire any Shares upon the issuance thereof
by the Company, and, to the knowledge of such counsel, no such rights
will exist as of the Closing Date.
-27-
(iv) Neither the offer, sale or delivery of the Shares by the
Company nor the execution, delivery or performance by the Company of
this Agreement nor consummation by the Company of the transactions
contemplated hereby, (A) conflicts or will conflict with or constitutes
or will constitute a breach of, or a default under, the certificate of
incorporation or bylaws of the Company, (B) conflicts or will conflict
with or constitutes or will constitute a breach of, or a default under,
any material agreement, indenture, lease or other instrument to which
the Company is a party or by which any of its properties is bound and
which is included as an exhibit to the Registration Statement, or (C)
violates or will result in any violation of any existing law, statute,
regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or decree
that is known to such counsel and is applicable to the Company or any
of its properties, except in the case of clauses (B) and (C) for any
conflict, breach, default or violation that would not reasonably be
expected to have a Material Adverse Effect.
(v) Except as described in the Registration Statement or
Prospectus, there is no action, suit, inquiry, proceeding, or
investigation by or before any Delaware, Texas or federal court or
governmental or other regulatory or administrative agency or commission
pending or, to the knowledge of such counsel, threatened, against or
involving the Company or its subsidiaries, or the properties of either
the Company or any of its subsidiaries: (A) which might individually or
in the aggregate prevent or adversely affect the transactions
contemplated by this Agreement or result in a Material Adverse Effect;
or (B) that are required to be described in the Registration Statement
or Prospectus (or any amendment or supplement thereto) that are not
described as required therein.
(vi) Such counsel does not know of any agreements, contracts,
indentures, leases or other documents or instruments required to be
summarized or disclosed in the Registration Statement or filed as an
exhibit thereto that have not been so summarized or disclosed or filed.
-28-
(vii) No consent, approval, authorization or other order of, or
registration or filing with, any Delaware, Texas or federal court,
regulatory body, administrative agency or other governmental body,
agency or official is required on the part of the Company (except such
as have been obtained under the Act or the Exchange Act, such as may be
required under state securities or Blue Sky laws governing the purchase
and distribution of the Shares and such as would not reasonably be
expected to have a Material Adverse Effect) for the valid issuance and
sale of the Shares to the Underwriters under this Agreement.
(viii) The form of certificate used to evidence the Common Stock
is in due and proper form and complies with all applicable requirements
of the certificate of incorporation and bylaws of the Company and the
General Corporation Law of the State of Delaware.
(ix) The description of the Company's stock option, stock bonus
and other stock plans or arrangements, and the options or other rights
granted and exercised thereunder, set forth in the Prospectus
accurately and fairly presents the information required to be shown
with respect to such plans, arrangements, options and rights.
(x) The Company has all requisite power and authority to enter
into this Agreement and to issue, sell and deliver the Shares to be
sold by it to the Underwriters as provided herein. The Agreement has
been duly authorized, executed and delivered by, and is a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as to the extent enforceability may
be limited by (i) the application of bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium, or other laws relating
to or affecting the enforcement of creditors' rights generally and (ii)
general principles of equity and public policy (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
and except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws.
(xi) The Shares to be issued and sold to the Underwriters by the
Company hereunder have been duly authorized by all necessary corporate
action, and, when issued and delivered to the Underwriters against
payment therefor in accordance with the terms hereof, such Shares will
be validly issued, fully paid and nonassessable and free of any
preemptive or similar rights arising under the Company's certificate of
incorporation or bylaws or under any agreement known to such counsel
that entitle or will entitle any person to acquire any Shares upon the
issuance thereof by the Company.
(xii) The Registration Statement has been declared effective by
the Commission under the Act. To the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
has been issued under the Act and no proceedings for such purpose have
been instituted or are pending or are contemplated or threatened by the
Commission. Any required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) under the Act has been made in the
manner and within the time period required by such Rule 424(b).
(xiii) The Registration Statement, including any Rule 462
Registration Statement, the Prospectus and each amendment or supplement
to the Registration Statement and the Prospectus, as of their
respective effective or issue dates (other than the financial
statements and supporting schedules, the notes thereto and auditors
report thereon and the other financial, statistical and accounting data
included therein or in exhibits to or excluded from the Registration
Statement, as to which no opinion need be given) each appear on its
face to comply as to form in all material respects with the
requirements of the Act.
-29-
(xiv) The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(xv) The statements (i) in the Prospectus under the captions
"Description of Our Capital Stock," "Management's Discussion and
Analysis and Results of Operations--Liquidity and Capital
Resources-Description of our Indebtedness," "Business--Environmental
Regulation," "Certain Relationships and Related Party Transactions,"
"Shares Eligible for Future Sale," and "Underwriting" and (ii) in Item
14 and Item 15 of the Registration Statement, insofar as such
statements constitute matters of law, summaries of legal matters, the
Company's certificate of incorporation or bylaw provisions, documents
or legal proceedings, or legal conclusions, have been reviewed by such
counsel and fairly summarize, in all material respects, the matters
referred to therein.
In rendering such opinion, counsel may rely, to the extent they deem
such reliance proper, as to matters of fact upon certificates of officers of the
Company and of government officials, provided that counsel shall state their
belief that they and you are justified in relying thereon and in rendering the
opinion set forth in paragraph (xii) above, state that they have relied on oral
advice of the Commission that the Commission has declared the Registration
Statement effective under the Act. Copies of all such certificates shall be
furnished to you and your counsel on the Closing Date and the Additional Closing
Date, as the case may be. Such counsel shall also be entitled to state that its
opinion is limited to the federal laws of the United States of America, the laws
of the State of Texas and the General Corporation Law of the State of Delaware.
Such counsel shall state that, in the foregoing opinions, phrases such as "to
the knowledge of such counsel," "known to such counsel" and those with
equivalent wording refer to the conscious awareness of information by the
lawyers of such firm who prepare such opinion, sign such opinion or are actively
involved in assisting and advising the Company in connection with the
preparation of the Registration Statement and the execution and delivery of the
Underwriting Agreement.
-30-
In addition to the opinion set forth above, such counsel shall state
that such counsel has participated in conferences with officers and other
representatives of the Company and the Selling Stockholders, with
representatives of the independent accountants of the Company, with
representatives of and counsel for the Underwriters, at which the contents of
the Registration Statement and the Prospectus were discussed, and although such
counsel did not independently verify such information, and is not passing upon
and does not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or Prospectus
(except to the extent set forth in paragraphs (ii) and (xv) above), on the basis
of the foregoing (relying as to materiality to a large extent upon officers and
other representatives of the Company and upon representatives of the
Underwriters), no facts have come to such counsel's attention that lead such
counsel to believe that the Registration Statement or the Prospectus or any
amendment thereto (except for the financial statements and schedules, the notes
thereto and the auditors' reports thereon, the other financial, statistical and
accounting data included therein or omitted therefrom and the exhibits thereto,
as to which such counsel has not been asked to comment), at the date thereof,
included an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Registration Statement or the Prospectus as of the
date of the opinion (except as aforesaid), included an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(d) You shall have received on the Closing Date (and the Additional
Closing Date, if any) an opinion of Xxxxxxx X. Xxxxxx, P.A., counsel to the
Company, substantially to the effect that:
(i) Except as set forth in the Prospectus, the Company is not a
party to or bound by any outstanding options, warrants or similar
rights to subscribe for, or contractual obligations to issue, sell,
transfer or acquire, any of its capital stock or any securities
convertible into or exchangeable for any of such capital stock.
(ii) To such counsel's knowledge, all offers and sales of the
Company's securities within the prior 10 years have been made in
compliance in all material respects with the registration requirements
of the Act and other applicable state securities laws or regulations or
applicable exemptions therefrom.
(iii) To the knowledge of such counsel after reasonable inquiry,
neither the Company nor any of its subsidiaries is in violation of its
certificate of incorporation or bylaws and is not in default in the
performance of any obligation, agreement or condition contained in any
bond, indenture, note or other evidence of indebtedness or any other
agreement or obligation of the Company, where the default would have,
individually or in the aggregate, a Material Adverse Effect.
(iv) The Shares have been approved for listing on NASDAQ National
Market.
(e) You shall have received on the Closing Date (and the Additional
Closing Date, if any) an opinion of Xxxxxxx X. Xxxxxx, P.A., counsel to the
Selling Stockholders, substantially to the effect that:
(i) The Selling Stockholders have all requisite power and
authority to enter into this Agreement and to sell and deliver the
Shares to be sold by them to the Underwriters as provided herein. This
Agreement has been duly authorized, executed and delivered by, and is a
valid and binding agreement of, the Selling Stockholders enforceable
against the Selling Stockholders in accordance with its terms, except
to the extent enforceability may be limited by (i) bankruptcy,
reorganization, insolvency or other laws affecting enforcement of
creditors' rights generally and (ii) equitable principles being applied
at the discretion of a court before which any proceeding may be
brought, and except as to indemnity and contribution hereunder may be
limited by federal or state securities laws.
-31-
(ii) The Shares to be sold to the Underwriters by the Selling
Stockholders hereunder have been duly authorized and, when delivered to
the Underwriters against payment therefor in accordance with the terms
hereof, (A) such Shares will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights that entitle
or will entitle any person to acquire any Shares upon the sale thereof
by the Selling Stockholders and (B) good and valid title to such
Shares, free and clear of any claim, encumbrance or defect in title of
any nature (other than any arising by or through the Underwriters),
will pass to each Underwriter that has purchased any portion of such
Shares in good faith and without knowledge of any such claim,
encumbrance or defect.
(iii) Neither the offer, sale or delivery of the Shares by the
Selling Stockholders, the execution, delivery or performance by the
Selling Stockholders of this Agreement, compliance by the Selling
Stockholders with all provisions hereof nor consummation by the Selling
Stockholders of the transactions contemplated hereby (A) conflicts or
will conflict with or constitutes or will constitute a breach of, or a
default under, the organizational documents of such Selling
Stockholder, if such Selling Stockholder is not an individual, or any
material agreement, indenture, lease or other instrument to which such
Selling Stockholder is a party or by which any of their properties is
bound, (B) creates or will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of such Selling
Stockholder or (C) violates or will result in any violation of any
existing law, statute, regulation, ruling (assuming compliance with all
applicable state and securities and Blue Sky laws), judgment,
injunction, order or decree that is known to such counsel and is
applicable to such Selling Stockholder or any of its properties.
(iv) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official is required on
the part of the Selling Stockholders (except such as have been obtained
under the Act or such as may be required under state securities or Blue
Sky laws governing the purchase and distribution of the Shares) for the
valid sale of the Shares to the Underwriters by the Selling
Stockholders under this Agreement.
(v) Each of the Custody Agreement and Power of Attorney of the
Selling Stockholders has been duly authorized, executed and delivered
by the Selling Stockholders and is a valid, legal and binding agreement
of the Selling Stockholders enforceable against the Selling
Stockholders in accordance with its terms, except to the extent
enforceability may be limited by (i) bankruptcy, reorganization,
insolvency or other laws affecting enforcement of creditors' rights
generally and (ii) equitable principles being applied at the discretion
of a court before which any proceeding may be brought, and except as to
indemnity and contribution may be limited by federal or state
securities laws.
-32-
In rendering such opinion, counsel may rely, to the extent they deem
such reliance proper, as to matters of fact upon certificates of officers of the
Company and of government officials, provided that counsel shall state their
belief that they and you are justified in relying thereon. Copies of all such
certificates shall be furnished to you and your counsel on the Closing Date and
the Additional Closing Date, as the case may be.
(f) You shall have received on the Closing Date or Additional
Closing Date, as the case may be, an opinion of Xxxxxxx Xxxxx LLP, as counsel
for the Underwriters, dated the Closing Date or Additional Closing Date, as the
case may be, with respect to the issuance and sale of the Shares, the
Registration Statement and other related matters as you may reasonably request,
and the Company and its counsel shall have furnished to your counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(g) You shall have received letters addressed to you and dated the
date hereof and the Closing Date or the Additional Closing Date, as the case may
be, from (i) the firm of Xxxxx Xxxxxxx LLP, independent certified public
accountants and (ii) the Chief Financial Officer of the Company, substantially
in the forms heretofore approved by you.
(h) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued by the Commission and no
proceedings for that purpose shall be pending or, to the knowledge of the
Company, shall be threatened or contemplated by the Commission at or prior to
the Closing Date or Additional Closing Date, as the case may be; (ii) no order
suspending the effectiveness of the Registration Statement or the qualification
or registration of the Shares under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending or, to the knowledge of the Company, threatened or contemplated by the
authorities of any jurisdiction; (iii) any request for additional information on
the part of the staff of the Commission or any such authorities shall have been
complied with to the satisfaction of the staff of the Commission or such
authorities; (iv) after the date hereof, no amendment or supplement to the
Registration Statement or the Prospectus shall have been filed unless a copy
thereof was first submitted to you and you did not object thereto in good faith;
and (v) all of the representations and warranties of the Company contained in
this Agreement shall be true and correct in all material respects (except for
such representations and warranties qualified by materiality, which
representations and warranties shall be true and correct in all respects) on and
as of the date hereof and on and as of the Closing Date or Additional Closing
Date, as the case may be, as if made on and as of the Closing Date or Additional
Closing Date, as the case may be, and you shall have received a certificate,
dated the Closing Date and signed by the chief executive officer and the chief
financial officer of the Company (or such other officers as are acceptable to
you) to the effect set forth in this Section 9(g) and in Sections 9(b) and 9(h)
hereof.
(i) The Company shall not have failed in any material respect at or
prior to the Closing Date or the Additional Closing Date, as the case may be, to
have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date or Additional Closing Date, as the case may be.
(j) The Company shall have furnished or caused to have been
furnished to you such further certificates and documents as you shall have
reasonably requested.
-33-
(k) At or prior to the Closing Date, you shall have received the
written Lock-Up Agreements from each of the Company's officers and directors and
the Selling Stockholders not to directly or indirectly (i) sell, offer or
contract to sell or otherwise dispose of or transfer any shares of Company
Securities, whether now owned or acquired after the date of the Prospectus or
with respect to which the power of disposition is acquired after the date of the
Prospectus, or file any registration statement under the Act with respect to the
foregoing or (ii) enter into any swap or other agreement or any other agreement
that transfers, in whole or in part, directly or indirectly, the economic
consequences of ownership of Company Securities whether any such swap or
transaction is to be settled by delivery of Company Securities, in cash or
otherwise; other than as provided in such written commitment before the
expiration of 180 days from the Closing Date, without the prior written consent
of Xxxxxxx Xxxxx & Associates, Inc.
(l) At or prior to the effective date of the Registration Statement,
you shall have received a letter from the Corporate Financing Department of the
NASD confirming that such Department has determined to raise no objections with
respect to the fairness or reasonableness of the underwriting terms and
arrangements of the offering contemplated hereby.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of the Additional
Closing Date of the conditions set forth in this Section 9, except that, if the
Additional Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in this Section 9 shall be dated as of the
Additional Closing Date and the opinions called for by paragraphs (c), (d), (e)
and (f) shall be revised to reflect the sale of Additional Shares.
If any of the conditions hereinabove provided for in this Section 9
shall not have been satisfied when and as required by this Agreement, this
Agreement may be terminated by you by notifying the Company of such termination
in writing or by telegram at or prior to such Closing Date, but you shall be
entitled to waive any of such conditions.
10. Effective Date of Agreement. This Agreement shall become effective
upon the later of (a) the execution and delivery hereof by the parties hereto
and (b) release of notification of the effectiveness of the Registration
Statement by the Commission; provided, however, that the provisions of Sections
7 and 8 shall at all times be effective.
11. Use of Free Writing Prospectus. Each Underwriter severally
covenants with the Company that it has not made and will not make any offer
relating to the Shares that would constitute a "free writing prospectus," as
defined in Rule 405 under the Act, required to be filed with the Commission
without the consent of the Company, not to be unreasonably withheld, other than
any such offer included in an Issuer Free Writing Prospectus. The Company
covenants with the Underwriters that it has not made and will not make any offer
relating to the Shares that would constitute a "free writing prospectus," as
defined in Rule 405 under the Act, required to be filed with the Commission
without the consent of the Representative, not to be unreasonably withheld,
other than any such offer included in an Issuer Free Writing Prospectus included
in the Time of Sale Information.
-34-
12. Defaulting Underwriters. If any one or more of the Underwriters
shall fail or refuse to purchase Firm Shares that it or they have agreed to
purchase hereunder, and the aggregate number of Firm Shares that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Firm Shares, each non-defaulting
Underwriter shall be obligated, severally, in the proportion in which the number
of Firm Shares set forth opposite its name in Schedule I hereto bears to the
aggregate number of Firm Shares set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
the Agreement Among Underwriters, to purchase the Firm Shares that such
defaulting Underwriter or Underwriters agreed, but failed or refused to
purchase. If any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares and
arrangements satisfactory to you and the Company for the purchase of such Firm
Shares are not made within 48 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter the
Company - any selling stockholder. In any such case that does not result in
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven (7) days, in
order that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this
Agreement.
13. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company by notice to the Company, if prior to the Closing
Date or the Additional Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, in your sole judgment,
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or NASDAQ, (ii) trading in securities generally on the NYSE or NASDAQ
shall have been suspended or materially limited, or minimum or maximum prices
shall have been generally established on such exchange, or additional material
governmental restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by any such exchange or
by order of the Commission or any court or other governmental authority, (iii) a
general moratorium on commercial banking activities shall have been declared by
either federal or New York State authorities, (iv) any downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, (v) any such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities, or (vi) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions or other material event the effect
of which on the financial markets of the United States is such as to make it, in
your judgment, impracticable or inadvisable to market the Shares or to enforce
contracts for the sale of the Shares. Notice of such cancellation shall be
promptly given to the Company and its counsel by telegraph, telecopy or
telephone and shall be subsequently confirmed by letter.
-35-
14. Failure of One or More of the Selling Stockholders to Sell and
Deliver the Shares. If one or more of the Selling Stockholders shall fail to
sell and deliver to the Underwriters more than one-half of the aggregate number
of Shares to be sold and delivered at the Closing Date by the Selling
Stockholders pursuant to this Agreement, then the Underwriters may at their
option, by written notice from the Representative to the Company and the Selling
Stockholders, either (i) terminate this Agreement without any liability on the
part of any Underwriter or, except as provided in Sections 7 and 8 hereof, the
Company or the Selling Stockholders or (ii) purchase the Shares that the Company
and other Selling Stockholders have agreed to sell and deliver in accordance
with the terms hereof. If one or more of the Selling Stockholders shall fail to
sell and deliver to the Underwriters more than one-half of the aggregate number
of Shares to be sold and delivered by such Selling Stockholders pursuant to this
Agreement at the Closing Date or Additional Closing Date, then the Underwriters
shall have the right, by written notice from the Representative to the Company
and the Selling Stockholders, to postpone the Closing Date or the Additional
Closing Date, as the case may be, but in no event for longer than seven days in
order that the required changes, if any, to the Registration Statement and the
Prospectus or any other documents or arrangements may be effected.
15. Information Furnished by the Underwriters. The Company acknowledges
that: (i) in the Preliminary Prospectus, the (a) sixth paragraph of the cover
and (b) the second sentence of the thirteenth paragraph and the fourth,
fourteenth and fifteenth paragraphs under the caption "Underwriting;" and (ii)
in the Prospectus, the (x) sixth paragraph of the cover and (y) the second
sentence of the thirteenth paragraph and fourth, sixteenth and seventeenth
paragraphs under the caption "Underwriting," constitute the only information
furnished by or on behalf of the Underwriters through you or on your behalf as
such information is referred to in Sections 6, 7 and 8 hereof.
16. Miscellaneous. Except as otherwise provided in Sections 5 and 12
hereof, notice given pursuant to any of the provisions of this Agreement shall
be in writing and shall be delivered
(i) to the Company at:
Warrior Energy Services Corporation
000 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
-36-
with a copy to:
Xxxxx Xxxxx L.L.P.
One Shell Plaza
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx
(ii) to the Underwriters at:
Xxxxxxx Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
with a copy to:
Xxxxxxx Xxxxx LLP
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company and its directors and officers and the Selling
Stockholders.
17. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida without
reference to choice of law principles thereunder.
This Agreement may be signed in various counterparts, which together
shall constitute one and the same instrument.
This Agreement shall be effective when, but only when, at least one
counterpart hereof shall have been executed on behalf of each party hereto.
The Company, the Selling Stockholders and the Underwriters each hereby
irrevocably waive any right they may have to a trial by jury in respect to any
claim based upon or arising out of this Agreement or the transactions
contemplated hereby.
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
-37-
Very truly yours,
Warrior Energy Services Corporation
President and Chief Executive Officer
The Selling Stockholders Named in Schedule II
Hereto, Acting Severally
By:
------------------------------------------
Attorney-in-Fact
CONFIRMED as of the date first above mentioned, on behalf of the Representative
and the other several Underwriters named in Schedule I hereto.
XXXXXXX XXXXX & ASSOCIATES, INC.
By:
--------------------------------------------------
Authorized Representative
-38-
SCHEDULE I
NUMBER
NAME FIRM SHARES
---- -----------
XXXXXXX XXXXX & ASSOCIATES, INC. 3,189,360
XXXXXXX & COMPANY INTERNATIONAL 3,189,360
XXXXXXX XXXX & COMPANY L.L.C. 1,594,680
XXXXXX XXXXXXX XXXXXXXX XXXXXXX, INC. 82,200
XXXXXXXXXXX & CO. INC. 82,200
XXXXXXXXX ENERGY PARTNERS, INC. 82,200
----------
TOTAL: 8,220,000
==========
-39-
SCHEDULE II
SCHEDULE OF SELLING STOCKHOLDERS
Number of
Firm Shares
Stockholder to be Sold
----------- ----------
Xxxxx X. Xxxxxxx Declaration Trust 22,333
Xxxxxxx and Xxxx Xxxxxx 47,893
Blackcross 119,370
CGMI XXX Custodian for benefit of Xxxxxxxx Xxxxx 35,756
Xxxx and Xxxxx Xxxx 23,874
Xxx Xxxxxxx, Jr. 34,314
Cranberry Ventures LLC 4,000
XX Xxxxxxx Living Trust 34,388
Xxxxxx Xxxxxx 25,000
Xxxxxxx X. Xxxxxx Living Trust 23,946
Xxx X. Xxxxxxx 13,300
Xxx X. Xxxxx 333
Xxxxx X. XxXxxx 23,946
Xxxxx X. Xxxxxx 1,667
Xxxxxx X. Xxxxxxx Insurance Trust DTD 47,748
Xxxxxxx Xxxxxxx 23,872
Xxxx Xxxxxxxxxxx 23,837
Xxxxxxx X. Xxxxxxxx 12,706
The Estate of Xxxxx Xxxxxx 11,936
Smeets Investors, LLC 47,893
W. Xxxxx Xxxxx 4,167
Estate of Xxxxxxx X. Xxxx, Xx. 10,187
-40-
SCHEDULE III
SCHEDULE OF ISSUER FREE WRITING PROSPECTUSES
A. Included in the Time of Sale Information
1. None.
B. Not Included in the Time of Sale Information
1. Electronic Roadshow.
-41-
SCHEDULE IV
PERSONS DELIVERING LOCK-UP AGREEMENTS
1. Executive Officers
2. Directors
3. Selling Stockholders
4. SJMB, L.P.
5. St. Xxxxx Capital Partners, L.P.
-42-
SCHEDULE V
RECAPITALIZATION AGREEMENTS
1. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxxxx X. Xxxxxxx.
2. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Blackcross.
3. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxxxx X. Xxxxxx.
4. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and the Estate of Xxxxx Xxxxxx.
5. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxxxxx Xxxxx XXX.
6. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and XX Xxxxxxx Living Trust.
7. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Cranberry Ventures, LLC.
8. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxxx X. Xxxxxxx Insurance Trust DTD.
9. Recapitalization Agreement by and among Black Warrior Wireline Corp., a
Delaware corporation, Xxxxx Xxxx and Xxxxx Xxxx.
10. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxx X. Xxxxx.
11. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxxxx X. Xxxxxx.
12. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxx Xxxxxxxxxx.
13. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and the Estate of Xxxxxxx X. Xxxx, Xx.
14. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxx X. Xxxxxxx Declaration Trust.
15. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxx X. XxXxxx.
16. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxx X. Xxxxxx.
17. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxxxx X. Xxxxxxxx.
18. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxx Xxxxxxxxx.
19. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxx X. Xxxxxxx.
20. Recapitalization Agreement by and among Black Warrior Wireline Corp., a
Delaware corporation, Xxxx X. Xxxx and Xxxxx X. Xxxx.
21. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxxxx X. Xxxxxxx Trust DTD 7/17/00.
22. Recapitalization Agreement by and among Black Warrior Wireline Corp., a
Delaware corporation, Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxx.
23. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxxxx & Xxxx Xxxxxx Community Property.
24. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxxxx Xxxxxxx.
25. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxx Xxxxxxxxxxx.
26. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Smeets Investors, LLC.
27. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxxxx X. Xxxxxxx.
28. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxxx X. Xxxxxx 1992 Trust.
29. Recapitalization Agreements by and between Black Warrior Wireline
Corp., a Delaware corporation, and Xxx Xxxxxxx, Jr.
30. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and W. Xxxxx Xxxxx.
31. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and Xxxxxxx X. Xxxxxx Living Trust.
32. Recapitalization Agreement by and among Black Warrior Wireline Corp., a
Delaware corporation, Xxxxxxx X. Xxxxxxxxxx; Northgate, L.L.C., Hub,
Inc.; Xxxxxxx X. Xxxxxxxxxx, XXX, Guaranty & Trust Co. TTEE and Xxxxxxx
X. Xxxxxxxxxx Irrevocable Trust Dated 10/10/92 for the Benefit of Piper
Xxxxxx Xxxxxxxxxx.
-43-
33. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and St. Xxxxx Capital Partners, L.P.
34. Recapitalization Agreement by and between Black Warrior Wireline Corp.,
a Delaware corporation, and SJMB, L.P.
-44-
EXHIBIT A
_______, 2006
WARRIOR ENERGY SERVICES CORPORATION
000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representative of the Several Underwriters
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
RE: WARRIOR ENERGY SERVICES CORPORATION (THE "COMPANY") - RESTRICTION ON
SALES OF COMPANY SECURITIES
Ladies and Gentlemen:
This letter is delivered to you pursuant to the Underwriting Agreement
(the "Underwriting Agreement") to be entered into by the Company, as issuer,
Xxxxxxx Xxxxx & Associates, Inc., the representative (the "Representative") of
certain underwriters (the "Underwriters") to be named therein certain
stockholders of the Company named therein. Upon the terms and subject to the
conditions of the Underwriting Agreement, the Underwriters intend to effect a
public offering of Common Stock, par value $0.0005 per share, of the Company
(the "Shares"), as described in and contemplated by the registration statement
of the Company on Form S-1, File No. 333-131781 (the "Registration Statement"),
as filed with the Securities and Exchange Commission on February 13, 2006 and
amended on April 3, 2006 and April 14, 2006 (the "Offering").
The undersigned recognizes that it is in the best financial interests
of the undersigned, as an officer or director, or an owner of stock, options,
warrants or other securities of the Company (the "Company Securities"), that the
Company complete the proposed Offering.
The undersigned further recognizes that the Company Securities held by
the undersigned are, or may be, subject to certain restrictions on
transferability, including those imposed by United States federal securities
laws. Notwithstanding these restrictions, the undersigned has agreed to enter
into this letter agreement to further assure the Underwriters that the Company
Securities of the undersigned, now held or hereafter acquired, will not enter
the public market at a time that might impair the underwriting effort.
-45-
Therefore, as an inducement to the Underwriters to execute the
Underwriting Agreement, the undersigned hereby acknowledges and agrees that the
undersigned will not (i) offer, sell, contract to sell, pledge, grant any option
to purchase or otherwise dispose of (collectively, a "Disposition") any Company
Securities, or any securities convertible into or exercisable or exchangeable
for, or any rights to purchase or otherwise acquire, any Company Securities held
by the undersigned or acquired by the undersigned after the date hereof, or that
may be deemed to be beneficially owned by the undersigned (collectively, the
"Lock-Up Shares") pursuant to the Rules and Regulations promulgated under the
Securities Act of 1933, as amended (the "Act"), and the Securities Exchange Act
of 1934, as amended, by virtue of the right to dispose of such Lock-Up Shares
for a period commencing on the date hereof and ending 180 days after the date of
the Company's Prospectus first filed pursuant to Rule 424(b) under the Act,
inclusive (the "Lock-Up Period"), without the prior written consent of Xxxxxxx
Xxxxx & Associates, Inc. or (ii) exercise or seek to exercise or effectuate in
any manner any rights of any nature that the undersigned has or may have
hereafter to require the Company to register under the Act the undersigned's
sale, transfer or other disposition of any of the Lock-Up Shares or other
securities of the Company held by the undersigned, or to otherwise participate
as a selling securityholder in any manner in any registration effected by the
Company under the Act, including under the Registration Statement, during the
Lock-Up Period, notwithstanding the foregoing, if (x) during the last 17 days of
the Lock-Up Period, the Company issues a release concerning earnings or material
news or a material event relating to the Company occurs; or (y) prior to the
expiration of the Lock-Up Period, the Company announces it will release earnings
results during the 16 day period beginning on the last day of the Lock-Up
Period; the restrictions imposed in this letter agreement shall continue to
apply until the expiration of the 18 day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event. The
foregoing restrictions are expressly agreed to preclude the undersigned from
engaging in any hedging, collar (whether or not for any consideration) or other
transaction that is designed to or reasonably expected to lead or result in a
Disposition of Lock-Up Shares during the Lock-Up Period, even if such Lock-Up
Shares would be disposed of by someone other than such holder. Such prohibited
hedging or other transactions would include any short sale or any purchase, sale
or grant of any right (including any put or call option or reversal or
cancellation thereof) with respect to any Lock-Up Shares or with respect to any
security (other than a broad-based market basket or index) that includes,
relates to or derives any significant part of its value from Lock-Up Shares.
Notwithstanding the agreement not to make any Disposition during the
Lock-Up Period, you have agreed that the foregoing restrictions shall not apply
to:
(1) the Company Securities being offered in the prospectus
included in the Registration Statement;
(2) any grant or exercise of options pursuant to the Company's
2000 Stock Incentive Plan;
(3) bona fide gifts or transfers by will or intestacy in which the
transferee agrees to be bound by the provisions of this
letter;
(4) sales pursuant to the Recapitalization Agreements (as defined
in the Prospectus); or
(5) the distribution of Company Securities to the partners of the
undersigned provided that such partners agree to be bound by
the provisions of this letter.
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It is understood that, if the Underwriting Agreement (other than the
provisions thereof that survive termination) shall terminate or be terminated
prior to payment for and delivery of the Shares, you will release the
undersigned from the obligations under this letter agreement.
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of Lock-Up
Shares if such transfer would constitute a violation or breach of this letter.
This letter shall be binding on the undersigned and the respective successors,
heirs, personal representatives and assigns of the undersigned. Capitalized
terms used but not defined herein have the respective meanings assigned to such
terms in the Underwriting Agreement.
Very truly yours,
Signature of Securityholder
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