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Exhibit 1.1
FIRST WAVE MARINE, INC.
___________Shares
Common Stock
(Par Value $0.01 Per Share)
--------------------------
UNDERWRITING AGREEMENT
New York, New York
____________, 1997
XXXXXXXX & CO. INC.
XXXXXXXXX & COMPANY, INC.
XXXXXX XXXXXX & COMPANY, INC.
As Representatives of the several
Underwriters named in Schedule I hereto
c/x Xxxxxxxx & Co. Inc.
Equitable Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
First Wave Marine, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell,
and certain stockholders of the Company named in Schedule II hereto (the
"Selling Stockholders") propose to sell, to the Underwriters named in Schedule
I hereto (the "Underwriters"), an aggregate of ___________ shares of Common
Stock, par value $0.01 per share (the "Common Stock"), of the Company, of which
_________ shares are to be issued and sold by the Company and an aggregate of
________ shares are to be sold by the Selling Stockholders in the respective
amounts set forth in Schedule II hereto. The aggregate ________ shares of
Common Stock to be sold by the Company and the Selling Stockholders are herein
collectively referred to as the "Firm Securities." In addition, the Company and
the Selling Stockholders propose to grant to the Underwriters an option to
purchase up to an aggregate of an additional ________ shares of Common Stock
(the "Option Securities") on the terms and for the purposes set forth in
Section 2 hereof, of which up to _______ shares are to be issued and sold by
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the Company and up to an aggregate of _______ shares are to be sold by the
Selling Stockholders. The Firm Securities and the Option Securities are herein
collectively referred to as the "Securities." Except as may be expressly set
forth below, any reference to you in this Agreement shall be solely in your
capacity as the Representatives.
The Company and certain minority shareholders (the "Exchange
Participants") of Newpark Shipbuilding & Repair, Inc. ("Newpark") entered into
an Exchange Agreement, dated as of October 16, 1997 (the "Exchange Agreement")
whereby such Exchange Participants sold and delivered to the Company all of
their 17,000 shares of capital stock in Newpark in exchange for 93,840 shares
of Common Stock of the Company (collectively, the ("Exchange"). The Company,
EAE Services, Inc. ("EAE"), Xxxx Xxxxxxxxx Marine, Inc., Xxxxxxxxx Shipyard and
Fabrication, Inc., Xxxx X. Xxxxxxxxx, III and Xxxxx X. Xxxxxxxxx have entered
into a Stock Purchase Agreement, dated as of October 15, 1997 (the "Acquisition
Agreement"), whereby EAE will purchase all of the outstanding capital stock of
Xxxx Xxxxxxxxx Marine, Inc. and, indirectly, Xxxxxxxxx Shipyard and,
Fabrication, Inc. (hereinafter collectively referred to as "Xxxxxxxxx").
1. (a) The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333- )
and as part thereof a preliminary prospectus, in respect of the
Securities, has been filed with the Securities and Exchange Commission
(the "Commission") in the form heretofore delivered to you and, with
the exception of exhibits to the registration statement, to you for
each of the other Underwriters; if such registration statement has not
become effective, an amendment (the "Final Amendment") to such
registration statement, including a form of final prospectus,
necessary to permit such registration statement to become effective,
will promptly be filed by the Company with the Commission; if such
registration statement has become effective and any post-effective
amendment to such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement,
which amendment or amendments shall be in acceptable form to you, the
most recent such amendment has been declared effective by the
Commission; if such registration statement has become effective, a
final prospectus (the "Rule 430A Prospectus") relating to the
Securities containing information permitted to be omitted at the time
of effectiveness by Rule 430A of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"),
will promptly be filed by the Company pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act (any preliminary
prospectus filed as part of such registration statement being herein
called a "Preliminary Prospectus," such registration statement as
amended at the time that it becomes or became effective, or, if
applicable, as amended at the time the most recent post-effective
amendment to such registration statement filed with the Commission
prior to the execution and delivery of this Agreement became effective
(the "Effective Date"), including a registration statement (if any)
filed pursuant to Rule 462(b) under the Act increasing the size of the
offering registered under the Act and including all exhibits thereto
and all information deemed to be a part thereof at such time
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pursuant to Rule 430A of the rules and regulations of the Commission
under the Act, being herein called the "Registration Statement" and
the final prospectus relating to the Securities in the form first
filed pursuant to Rule 424(b)(1) or (4) of the rules and regulations
of the Commission under the Act or, if no such filing is required, the
form of final prospectus included in the Registration Statement, being
herein called the "Prospectus");
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through you expressly for use
therein;
(iii) On the Effective Date and the date of Prospectus is
filed with the Commission, and when any further amendment or
supplements thereto become effective or are filed with the Commission,
as the case may be, the Registration Statement, the Prospectus and
such amendment or supplements did and will conform in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through you expressly for use
therein;
(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and to conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases property, or conducts
any business, so as to require such qualification, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the business affairs or
prospects of the Company and its subsidiaries, taken as a whole (such
adverse effect to be hereinafter referred to as a "Material Adverse
Effect"); and each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and to conduct
its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases property, or conducts any business, so as to require
such
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qualification, except where the failure to so qualify would not have a
Material Adverse Effect;
(v) All the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and, upon consummation of
the Exchange, will be owned directly or indirectly by the Company free
and clear of all liens, encumbrances, equities, security interests, or
claims with the exception of the Company's pledge of the capital stock
of Newpark to Xxxxxx Financial Leasing, Inc. ("Xxxxxx") pursuant to
that certain Pledge Agreement, dated August 29, 1996 ("Xxxxxx Pledge
Agreement"), and the Company's pledge of the capital stock of EAE
Industries, Inc. pursuant to the terms of that certain Pledge
Agreement with Xxxxxx dated August 8, 1997 ("EAE Pledge Agreement");
and there are no outstanding options, warrants or other rights calling
for the issuance of, and there are no commitments, plans or
arrangements to issue, any shares of capital stock of any subsidiary
or any security convertible or exchangeable or exercisable for capital
stock of any subsidiary; except for the shares of stock of each
subsidiary owned directly or indirectly by the Company, neither the
Company nor any subsidiary owns directly or indirectly any shares of
capital stock of any corporation or have any equity interest in any
firm, partnership, joint venture, association or other entity;
(vi) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement; the
execution, delivery and performance by the Company of its obligations
under this Agreement have been duly and validly authorized by all
requisite corporate action of the Company; and this Agreement
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and except as enforceability of those provisions
relating to indemnity may be limited by Federal securities laws and
principles of public policy;
(vii) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, which loss or interference is material to the
Company and its subsidiaries, taken as a whole; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been, and prior to the
Time of Delivery (as defined in Section 4 hereof) there will not be,
any change in the capital stock (other than shares issued pursuant to
exercise of employee stock options that the Prospectus indicates are
outstanding (the "Employee Option Shares") or short-term debt or
long-term debt of the Company or any of its subsidiaries, or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as whole,
otherwise than as set forth or contemplated in the Prospectus;
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(viii) The Company and its subsidiaries and Xxxxxxxxx have
good and marketable title in fee simple to all real property and good
and marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except such
as are described or contemplated by the Prospectus, or such as do not
materially adversely interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries and
Xxxxxxxxx, and any real property and buildings held under lease by the
Company and its subsidiaries and Xxxxxxxxx are held by them under
valid, subsisting and enforceable leases with such exceptions as are
not material and do not materially adversely interfere with the use
made and proposed to be made of such real property and buildings by
the Company and its subsidiaries and Xxxxxxxxx;
(ix) The Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement, and all the
issued shares of capital stock of the Company (including the
Securities to be sold by the Selling Stockholders) have been duly and
validly authorized and issued, are fully paid and non-assessable, are
free of any preemptive rights, rights of first refusal or similar
rights, were issued and sold in compliance with the applicable Federal
and state securities laws and conform in all material respects to the
description in the Prospectus; except as described in the Prospectus,
there are no outstanding options, warrants or other rights calling for
the issuance of, and there are no commitments, plans or arrangements
to issue, any shares of capital stock of the Company or any security
convertible or exchangeable or exercisable for capital stock of the
Company; there are no holders of securities of the Company who, by
reasons of the filing of the Registration Statement have the right
(and have not waived such right) to request the Company to include in
the Registration Statement securities owned by them;
(x) The Securities to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued, fully paid and
non-assessable, and will conform in all material respects to the
description thereof in the Prospectus and will be quoted on the Nasdaq
National Market as of the Effective Date;
(xi) The performance of this Agreement, the consummation
of the transactions herein contemplated and the issue and sale of the
Securities and the compliance by the Company with all the provisions
of this Agreement will not result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge, claim, or
encumbrance upon, any of the property or assets of the Company or any
of its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or the Bylaws, in each
case as amended to the date hereof, of the Company or any of its
subsidiaries or any statute or any order, rule or regulation of any
court or governmental
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agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body is required for the issue and
sale of the Securities or the consummation of the other transactions
contemplated by this Agreement, except the registration under the Act
of the Securities, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
state or foreign securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(xii) Except as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries or any of their respective officers or directors
is a party or of which any property of the Company or any of its
subsidiaries is the subject, other than litigation or proceedings
incident to the business conducted by the Company and its subsidiaries
which will not, individually or in the aggregate if determined
adversely to the Company or any of its subsidiaries, have a Material
Adverse Effect; and, to the best of the Company's knowledge, no such
proceedings are threatened; and neither the Company nor any of its
subsidiaries is involved in any labor dispute, nor, to the Company's
knowledge, is any labor dispute threatened;
(xiii) The Company and its subsidiaries and Xxxxxxxxx have
such licenses, permits and other approvals or authorizations of and
from governmental or regulatory authorities ("Permits") as are
necessary under applicable law to own their respective properties and
to conduct their respective businesses in the manner now being
conducted and as described in the Prospectus subject in each case to
such qualification as may be set forth in the Prospectus and except
where the failure to have such Permits would not have a Material
Adverse Effect; and the Company and its subsidiaries have fulfilled
and performed all of their respective obligations with respect to such
Permits, and no event has occurred which allows, or after notice or
lapse of time or both would allow, revocation or termination thereof
or result in any other material impairment of the rights of the holder
of any such permits subject in each case to such qualification as may
be set forth in the Prospectus and except where the failure to fulfill
or perform or the occurrence of such an event would not have a
Material Adverse Effect;
(xiv) Except as described in the Registration Statement and
except as would not, singly or in the aggregate, result in a Material
Adverse Effect, (A) none of the Company, any of its subsidiaries or
Xxxxxxxxx is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic
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substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries and Xxxxxxxxx have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries or Xxxxxxxxx and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries or Xxxxxxxxx relating to Hazardous
Materials or any Environmental Laws;
(xv) Xxxxx Xxxxxxxx LLP who have certified certain
financial statements of the Company and its consolidated subsidiaries
and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Registration
Statement and the Prospectus, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder;
(xvi) The consolidated financial statements and schedules
of the Company and its subsidiaries and Xxxxxxxxx included in the
Registration Statement and the Prospectus present fairly the financial
condition, the results of operations and the cash flows of the Company
and its subsidiaries and Xxxxxxxxx as of the dates and for the periods
therein specified in conformity with U.S. generally accepted
accounting principles consistently applied throughout the periods
involved, except as otherwise stated therein; and the other financial
and statistical information and data set forth in the Registration
Statement and the Prospectus is accurately presented and, to the
extent such information and data is derived from the financial
statements and books and records of the Company and its subsidiaries
and Xxxxxxxxx, is prepared on a basis consistent with such financial
statements and the books and records of the Company and its
subsidiaries and Xxxxxxxxx; the pro forma financial information
included in the Registration Statement and the Prospectus have been
properly compiled and comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X of
the Commission; no other financial statements or schedules are
required to be included in the Registration Statement and the
Prospectus;
(xvii) There are no statutes or governmental regulations, or
any contracts or other documents that are required to be described in
or filed as exhibits to the Registration Statement which are not
described therein or filed as exhibits thereto; and all such contracts
to which the Company or any subsidiary is a party have been duly
authorized, executed and delivered by the Company or such subsidiary,
constitute valid and binding agreements of the
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Company or such subsidiary and are enforceable against the Company or
subsidiary in accordance with the terms thereof;
(xviii) The Company and its subsidiaries and Xxxxxxxxx own or
possess adequate patent rights or licenses or other rights to use
patent rights, inventions, trademarks, service marks, trade names,
copyrights, technology and know-how necessary to conduct the general
business now or proposed to be operated by them as described in the
Prospectus except where the failure to have such rights would not have
a Material Adverse Effect; none of the Company, any of its
subsidiaries or Xxxxxxxxx has received any notice of infringement of
or conflict with asserted rights of others with respect to any patent,
patent rights, inventions, trademarks, service marks, trade names,
copyrights, technology or know-how which, singly or in the aggregate,
could materially adversely affect the business, operations, financial
condition, income or business prospects of the Company and its
subsidiaries considered as a whole; and, the discoveries, inventions,
products or processes of the Company and its subsidiaries and
Xxxxxxxxx referred to in the Prospectus do not, to the Company's
knowledge, infringe or conflict with any patent or right of any third
party, or any discovery, invention, product or process which is the
subject of a patent application filed by any third party, known to the
Company;
(xix) None of the Company, any of and its subsidiaries or
Xxxxxxxxx are in violation of any term or provision of its Certificate
of Incorporation or Bylaws (or similar corporate constituent
documents), in each case as amended to the date hereof, or are in
violation in any material respect of any law, ordinance, administrative
or governmental rule or regulation applicable to the Company or any of
its subsidiaries, or of any decree of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries;
(xx) No default exists, and no event has occurred which
with notice or lapse of time, or both, would constitute a default in
the due performance and observance of any term, covenant or condition
of any indenture, mortgage, deed of trust, bank loan or credit
agreement, lease or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which any of them or their
respective properties is bound or may be affected where such default
would have a Material Adverse Effect;
(xxi) The Acquisition Agreement has been duly authorized,
executed and delivered by each of the Company, EAE, Xxxx Xxxxxxxxx
Marine, Inc., Xxxxxxxxx Shipyard and Fabrication, Inc., Xxxx X.
Xxxxxxxxx, III and Xxxxx X. Xxxxxxxxx, and is in full force and effect
and constitute a valid and legally binding obligation of each of the
Company, EAE, Xxxx Xxxxxxxxx Marine, Inc., Xxxxxxxxx Shipyard and
Fabrication, Inc., Xxxx X. Xxxxxxxxx, III and Xxxxx X. Xxxxxxxxx,
enforceable against each person in accordance with its terms, except
as enforcement may be limited by any bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally;
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(xxii) The Exchange Agreement has been duly authorized,
executed and delivered by each of the Company and the Exchange
Participants, and is in full force and effect and constitute a valid
and legally binding obligation of each of the Company and the Exchange
Participants enforceable against each person in accordance with its
terms, except as enforcement may be limited by any bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally;
(xxiii) The execution, delivery and performance of the
Exchange Agreement and the Acquisition Agreement and the consummation
of the transactions contemplated thereby will not result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge, claim, or encumbrance upon, any of the property or assets of
the Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or the Bylaws,
in each case as amended to the date hereof, of the Company or any of
its subsidiaries or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
(xxiv) No authorization, approval, consent or order of, or
filing with, any court or governmental authority or agency is required
in connection with the consummation of the transactions effected or
contemplated by the Exchange Agreement or the Acquisition Agreement
other than (i) such authorizations, approvals, consents and orders as
have been obtained or such filing as have been made prior to the date
hereof and (ii) such authorizations, approvals, consents, orders and
filings as to which the failure to obtain or make would not,
individually or in the aggregate, have a Material Adverse Effect;
(xxv) Upon the consummation of the transactions
contemplated by the Exchange Agreement, all of the outstanding capital
stock of Newpark, will be duly and validly transferred and assigned to
the Company free and clear of all liens, security interests, pledges,
charges, encumbrances, mortgages and defects (except for the Company's
pledge of the capital stock of Newpark to Xxxxxx pursuant to the terms
of the Xxxxxx Pledge Agreement and such as are described or referred
to in the Prospectus and the financial statements and the notes
thereto contained therein or such as do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries);
(xxvi) It is not necessary in connection with the offer,
sale and delivery of the shares of Common Stock to the Exchange
Participants pursuant to the Exchange Agreement to register such
shares of Common Stock under the Act;
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(xxvii) Upon the consummation of the transactions contemplated
by the Acquisition Agreement, all of the outstanding capital stock of
Xxxx Xxxxxxxxx Marine, Inc. will be duly and validly transferred and
assigned to EAE, a wholly owned subsidiary of the Company, and all
outstanding capital stock of Xxxxxxxxx Shipyard and Fabrication, Inc.
will be held by Xxxx Xxxxxxxxx Marine, Inc., in each case free and
clear of all liens, security interests, pledges, charges, encumbrances,
mortgages and defects (except such as are described or referred to in
the Prospectus and the financial statements and the notes thereto
contained therein or such as do not interfere with the use made and
proposed to be made of such property by the Company and the
subsidiaries);
(xxviii) The Company and its subsidiaries have timely filed
all federal and material state tax returns and notices required to be
filed by the Company or its subsidiaries and have paid all material
taxes of any nature whatsoever for all tax years through December 31,
1996, to the extent such taxes have become due. The Company has no
knowledge, or any reasonable grounds to know, of any tax deficiencies
which would have a Material Adverse Effect on the Company or any of
its subsidiaries; the Company and its subsidiaries have paid all taxes
which have become due, whether pursuant to any assessments, or
otherwise, and there is no further liability (whether or not disclosed
on such returns) or assessments for any such taxes, and no interest or
penalties accrued or accruing with respect thereto, except for any
such assessment, fine and penalty that is currently being contested in
good faith or as may be set forth or adequately reserved for in the
financial statements included in the Registration Statement; the
amounts currently set up as provisions for taxes or otherwise by the
Company and its subsidiaries on their books and records are sufficient
for the payment of all their unpaid federal, foreign, state, county
and local taxes accrued through the dates as of which they speak, and
for which the Company and its subsidiaries may be liable in their own
rights, or as a transferee of the assets of, or as successor to any
other corporation, association, partnership, joint venture or other
entity;
(xxix) The Company will not, during the period of 180 days
after the date hereof except pursuant to this Agreement, offer, sell,
contract to sell or otherwise dispose of any capital stock of the
Company (or securities convertible into, or exchangeable for, capital
stock of the Company), directly or indirectly, without the prior
written consent of Xxxxxxxx & Co. Inc., except for grants of stock
options under the Company's 1997 Incentive Equity Plan;
(xxx) 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 authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
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(xxxi) Neither the Company nor any of its subsidiaries is
in violation of any federal or state law relating to discrimination in
the hiring, promotion or paying of employees nor any applicable
federal or state wages and hours laws, nor any provisions of the
Employee Retirement Income Security Act of 1974, as amended, or the
rules and regulations promulgated thereunder, where such violation
would have a Material Adverse Effect;
(xxxii) 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 they are engaged; neither the Company nor
any such subsidiary has been refused any insurance coverage sought or
applied for; and except as described in the Prospectus neither the
Company nor any such subsidiary has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not
have a Material Adverse Effect;
(xxxiii) None of the Company or its subsidiaries, or its
officers, directors, employees or agents has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity, or made any unlawful payment
of funds of the Company or any subsidiary or received or retained any
funds in violation of any law, rule or regulation;
(xxxiv) The Company is not, and upon the issuance and sale
of the Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act"); and
(xxxv) None of the Company or its subsidiaries, or its
officers, directors, employees or agents have taken or will take,
directly or indirectly, any action designed to or which has
constituted or that might be reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(b) Each Selling Stockholder severally represents and warrants to,
and agrees with, each of the Underwriters, as follows:
(i) To the best knowledge of such Selling Stockholder, the
representations and warranties of the Company contained in Section 1(a)
hereof are true and correct; such Selling Stockholder has reviewed and
is familiar with the Registration Statement and the Prospectus and, to
the best knowledge of such Selling Stockholder, neither the Prospectus
nor any amendments or supplements thereto includes any untrue statement
of a material fact or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not
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misleading; such Selling Stockholder is not prompted to sell the
Securities to be sold by such Selling Stockholder hereunder by any
information concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectus;
(ii) Each Selling Stockholder has the full right, power
and authority to enter into this Agreement and a Power of Attorney and
Custody Agreement (the "Power of Attorney and Custody Agreement") and
to sell, transfer and deliver the Securities to be sold by such
Selling Stockholder hereunder. The execution and delivery of this
Agreement and the Power of Attorney and Custody Agreement and the sale
and delivery of the Securities to be sold by such Selling Stockholder
and the consummation of the transactions contemplated herein and
compliance by such Selling Stockholder with its obligations hereunder
have been duly authorized by such Selling Stockholder and do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any tax, lien,
charge or encumbrance upon the Securities to be sold by such Selling
Stockholder or any property or assets of such Selling Stockholder
pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, license, lease or other agreement or
instrument to which such Selling Stockholder is a party or by which
such Selling Stockholder may be bound, or to which any of the property
or assets of such Selling Stockholder is subject, nor will such action
result in any violation of the provisions of the charter or bylaws or
other organizational instrument of such Selling Stockholder, if
applicable, or any applicable treaty, law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over such Selling Stockholder or any of its properties;
(iii) Such Selling Stockholder has and will at each of the
Time of Delivery and Option Securities Delivery Date have good and
marketable title to the Securities to be sold by such Selling
Stockholder hereunder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind, other than pursuant to this Agreement; and upon delivery of such
Securities and payment of the purchase price therefor as herein
contemplated, assuming each such Underwriter has no notice of any
adverse claim, each of the Underwriters will receive good and
marketable title to the Securities purchased by it from such Selling
Stockholder, free and clear of any security interest, mortgage,
pledge, lien, charge, claim, equity or encumbrance of any kind;
(iv) Such Selling Stockholder has duly executed and
delivered, in the form heretofore furnished to the Representatives,
the Power of Attorney and Custody Agreement with Xxxxxx X. Xxxxx,
Xxxxx X. Xxxxx and Xxxxx X. Xxxxxx, or any of them, as
attorney(s)-in-fact (the "Attorney(s)-in-Fact") and the Company, as
custodian (the "Custodian"); the Custodian is authorized to deliver
the Securities to be sold by such Selling Stockholder hereunder and to
accept payment therefor; and each Attorney-in-Fact is authorized to
execute and deliver this Agreement and the certificate referred to in
Section 7(k), to sell, assign and transfer to the Underwriters the
Securities to be sold by such Selling
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Stockholder hereunder, to determine the purchase price to be paid by
the Underwriters to such Selling Stockholder, to authorize the
delivery of the Securities to be sold by such Selling Stockholder
hereunder, to accept payment therefor, and otherwise to act on behalf
of such Selling Stockholder in connection with this Agreement;
(v) Such Selling Stockholder has not taken, and will not
take, directly or indirectly, any action which is designed to or which
has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities;
(vi) No filing with, or consent, approval, authorization,
order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or
required for the performance by each Selling Stockholder of its
obligations hereunder or in the Power of Attorney and Custody
Agreement, or in connection with the sale and delivery of the
Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as may have previously
been made or obtained or as may be required under the Act or the
Exchange Act or the regulations promulgated thereunder or state
securities laws;
(vii) Such Selling Stockholder will not, during the period
of 180 days after the date hereof, offer, sell, contract to sell or
otherwise dispose of any capital stock of the Company (or securities
convertible into, or exchangeable for, capital stock of the Company),
directly or indirectly, without the prior written consent of Xxxxxxxx
& Co. Inc.; the foregoing sentence shall not apply to the Securities
to be sold hereunder;
(viii) Certificates for all of the Securities to be sold by
such Selling Stockholder pursuant to this Agreement, in suitable form
for transfer by delivery or accompanied by duly executed instruments
of transfer or assignment in blank with signatures guaranteed, have
been placed in custody with the Custodian with irrevocable conditional
instructions to deliver such Securities to the Underwriters pursuant
to this Agreement; and
(ix) Neither such Selling Stockholder nor any of such
Selling Stockholder's affiliates directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under
common control with, or has any other association with (within the
meaning of Article I, Section 1(m) of the Bylaws of the National
Association of Securities Dealers, Inc.), any member firm of the
National Association of Securities Dealers, Inc.
2. Subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to the several Underwriters an aggregate of
_____________ Firm Securities and the Selling Stockholders, severally and not
jointly, agree to sell an aggregate of ________ Firm Securities (each to sell
the number of Firm Securities set forth opposite the name of such Selling
Stockholder in Schedule II hereto), and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company and the Selling
Stockholders, at a purchase price of $_____________ per share, the
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respective aggregate number of Firm Securities determined in the manner set
forth below. The obligation of each Underwriter to the Company and the Selling
Stockholders shall be to purchase that portion of the number of shares of
Common Stock to be sold by the Company and the Selling Stockholders pursuant to
this Agreement as the number of Firm Securities set forth opposite the name of
such Underwriter on Schedule I bears to the total number of Firm Securities to
be purchased by the Underwriters pursuant to this Agreement, in each case
adjusted by you such that no Underwriter shall be obligated to purchase Firm
Securities other than in 100 shares amounts. In making this Agreement, each
Underwriter is contracting severally and not jointly.
In addition, subject to the terms and conditions herein set forth, the
Company agrees to issue and sell up to _______ Option Securities to the
Underwriters and the Selling Stockholders agree to sell up to an aggregate of
_________ Option Securities (each to sell up to the number of Option Securities
set forth opposite the name of such Selling Stockholder in Schedule II hereto)
to the Underwriters, as required (for the sole purpose of covering
over-allotments in the sale of the Firm Securities), at the purchase price per
share of the Firm Securities being sold by the Company and the Selling
Stockholders as stated in the preceding paragraph. The right to purchase the
Option Securities may be exercised by your giving prior written or telephonic
notice (subsequently confirmed in writing) to the Company of your determination
to purchase all or a portion of the Option Securities. Such notice may be given
at any time within a period of 30 days following the date of this Agreement.
The number of Option Securities which the Underwriters elect to purchase upon
any exercise of the option hereby granted shall be provided by the Company and
by each Selling Stockholder in proportion to the respective maximum numbers of
Option Securities which the Company and each such Selling Stockholder has
agreed to sell. Option Securities shall be purchased severally for the account
of each Underwriter in proportion to the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I hereto. No Option
Securities shall be delivered to or for the accounts of the Underwriters unless
the Firm Securities shall be simultaneously delivered or shall theretofore have
been delivered as herein provided. The respective purchase obligations of each
Underwriter shall be adjusted by you so that no Underwriter shall be obligated
to purchase Option Securities other than in 100 share amounts. The Underwriters
may cancel any purchase of Option Securities at any time prior to the Option
Securities Delivery Date (as defined in Section 4 hereof) by giving written
notice of such cancellation to the Company.
3. The Underwriters propose to offer the Securities for sale upon
the terms and conditions set forth in the Prospectus.
4. Certificates in definitive form for the Firm Securities to be
purchased by each Underwriter hereunder shall be delivered by or on behalf of
the Company and the Selling Stockholders to you for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer, payable in same day funds, to the
order of the Company and the Selling Stockholders, as appropriate, for the
purchase price of the Firm Securities being sold by the Company and the Selling
Stockholders at the office of Xxxxxxxx & Co. Inc., Equitable Center, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 9:30 A.M., New York City
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time, on __________ ___, 1997, or at such other time, date and place as you and
the Company may agree upon in writing, such time and date being herein called
the "Time of Delivery."
Certificates in definitive form for the Option Securities to be purchased by
each Underwriter hereunder shall be delivered by or on behalf of the Company and
the Selling Stockholders to you for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price thereof by
wire transfer, payable in same day funds, to the order of the Company and the
Selling Stockholders, as appropriate, for the purchase price of the Option
Securities, in New York, New York, at such time and on such date (not earlier
than the Time of Delivery nor later than ten business days after giving of the
notice delivered by you to the Company with reference thereto) and in such
denominations and registered in such names as shall be specified in the notice
delivered by you to the Company with respect to the purchase of such Option
Securities. The date and time of such delivery and payment are herein sometimes
referred to as the "Option Securities Delivery Date." The obligations of the
Underwriters shall be subject, in their discretion, to the condition that there
shall be delivered to the Underwriters on the Option Securities Delivery Date
opinions and certificates, dated such Option Securities Delivery Date, referring
to the Option Securities, instead of the Firm Securities, but otherwise to the
same effect as those required to be delivered at the Time of Delivery pursuant
to Section 7(d), 7(e), 7(f), 7(i) and 7(j).
Certificates for the Firm Securities and the Option Securities so to
be delivered will be in good delivery form, and in such denominations and
registered in such names as you may request not less than 48 hours prior to the
Time of Delivery and the Option Securities Delivery Date, respectively. Such
certificates will be made available for checking and packaging in New York, New
York, at least 24 hours prior to the Time of Delivery and Option Securities
Delivery Date.
5. The Company covenants and agrees with each of the
Underwriters:
(a) If the Registration Statement has not become
effective, to file promptly the Final Amendment with the Commission
and use its best efforts to cause the Registration Statement to become
effective; if the Registration Statement has become effective, to file
promptly the Rule 430A Prospectus with the Commission; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you after reasonable notice
thereof; to advise you, promptly after it receives notice thereof of
the time when the Registration Statement, or any amendment thereto, or
any amended Registration Statement has become effective or any
supplement to the Prospectus or any amended Prospectus has been filed,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
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Prospectus or suspending any such qualification, to use promptly its
best efforts to obtain withdrawal of such order;
(b) Promptly from time to time to take such action as you
may request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction or
to take any action that would subject it to service of process in
suits other than those arising out of the offering of the Securities;
(c) To furnish each of the Representatives and counsel
for the Underwriters, without charge, signed copies of the
registration statement originally filed with respect to the Securities
and each amendment thereto (in each case including all exhibits
thereto) and to each other Underwriter, without charge, a conformed
copy of such registration statement and each amendment thereto (in
each case without exhibits thereto) and, so long as a prospectus
relating to the Securities is required to be delivered under the Act,
as many copies of each Preliminary Prospectus, the Prospectus and all
amendments or supplements thereto as you may from time to time
reasonably request. If at any time when a prospectus is required to be
delivered under the Act an event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply
with the Act, the Company will forthwith prepare and, subject to the
provisions of Section 5(a) hereof, file with the Commission an
appropriate supplement or amendment thereto, and will furnish to each
Underwriter and to any dealer in securities, without charge, as many
copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance in accordance with the
requirements of Section 10 of the Act;
(d) To make generally available to its stockholders as
soon as practicable, but in any event not later than 45 days after the
close of the period covered thereby, an earnings (which need not be
audited) statement in form complying with the provisions of Section
11(a) of the Act covering a period of 12 consecutive months beginning
not later than the first day of the Company's fiscal quarter next
following the Effective Date;
(e) To file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
subsequent to the Effective Date and during any period when the
Prospectus is required to be delivered;
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(f) For a period of five years from the Effective Date,
to furnish to its stockholders after the end of each fiscal year an
annual report (including a consolidated balance sheet and statements
of income, cash flow and stockholders' equity of the Company and its
subsidiaries certified by independent public accounts);
(g) During a period of five years from the Effective
Date, to furnish to you copies of all reports or other communications
(financial or other) furnished to its stockholders, and deliver to you
(i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or the Nasdaq
National Market or any national securities exchange on which any class
of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request in connection
with your obligations hereunder;
(h) To apply the net proceeds from the sale of the
Securities in the manner set forth in the Prospectus under the caption
"Use of Proceeds";
(i) That it will not, and will cause its subsidiaries,
officers, directors, employees, agents and affiliates not to, take,
directly or indirectly, any action designed to cause or result in, or
that might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities;
(j) That prior to the Time of Delivery there will not be
any change in the capital stock (other than shares issued pursuant to
the Company's 1997 Incentive Equity Plan) or material change in the
short-term debt or long-term debt of the Company or any of its
subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company or any of its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus;
(k) That it will not, during the period of 180 days after
the date hereof (other than pursuant to this Agreement), offer, sell,
contract to sell or otherwise dispose of any capital stock of the
Company (or securities convertible into, or exchangeable for, capital
stock of the Company), directly or indirectly, without the prior
written consent of Xxxxxxxx & Co. Inc., except for grants of stock
options under the Company's 1997 Incentive Equity Plan; and
(l) That it has caused the Securities to be included for
quotation on the Nasdaq National Market as of the Effective Date.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid: (i) the fees, disbursements and
expenses of counsel and accountants for the Company and the Selling
Stockholders, and all other expenses, in connection with the preparation,
printing and filing of the Registration Statement and the Prospectus and
amendments
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and supplements thereto and the furnishing of copies thereof, including charges
for mailing, air freight and delivery and counting and packaging thereof and of
any Preliminary Prospectus and related offering documents to the Underwriters
and dealers; (ii) the cost of printing this Agreement, the Agreement Among
Underwriters, the Selling Agreement, communications with the Underwriters and
selling group and the Preliminary and Supplemental Blue Sky Memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under securities laws as provided in Section
5(b) hereof, including filing and registration fees and the fees, disbursements
and expenses for counsel for the Underwriters in connection with such
qualification and in connection with Blue Sky surveys or similar advice with
respect to sales; (iv) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the
sale of the Securities; (v) all fees and expenses in connection with quotation
of the Securities on the Nasdaq National Market; and (vi) all other costs and
expenses incident to the performance of their obligations hereunder which are
not otherwise specifically provided for in this Section 6, including the fees
of the Company's Transfer Agent and Registrar, the cost of any stock issue or
transfer taxes on sale of the Securities to the Underwriters, the cost of the
Company's personnel and other internal costs, the cost of printing and
engraving the certificats representing the securities and all expenses and
taxes incident to the sale and delivery of the Securities to be sold by the
Company to the Underwriters hereunder. It is understood, however, that, except
as provided in this Section, Section 8 and Section 11 hereof, the Underwriters
will pay all their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be
subject, in their discretion, to the condition that all representations and
warranties and other statements of the Company and the Selling Stockholders
herein are, at and as of the Time of Delivery, true and correct, the condition
that the Company shall have performed all its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Registration Statement shall have become
effective, and you shall have received notice thereof not later than
10:00 P.M., New York City time, on the date of execution of this
Agreement, or at such other time as you and the Company may agree; if
required, the Prospectus shall have been filed with the Commission in
the manner and within the time period required by Rule 424(b); no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied
with to your reasonable satisfaction;
(b) All corporate proceedings and related legal matters
in connection with the organization of the Company and the
registration, authorization, issue, sale and delivery of the
Securities shall have been reasonably satisfactory to Xxxxx & Xxxxx,
L.L.P., counsel to the Underwriters, and Xxxxx & Xxxxx, L.L.P. shall
have been timely furnished with such
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papers and information as they may reasonably have requested to enable
them to pass upon the matters referred to in this subsection;
(c) You shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact or omits to state a fact
which in your judgment is in either case material and in the case of
an omission is required to be stated therein or is necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading;
(d) Xxxxxx & Xxxxxxxx, P.C., counsel to the Company and
the Selling Stockholders, shall have furnished to you their written
opinion, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly and validly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, and is
qualified to do business and is in good standing in each
jurisdiction in which, to the knowledge of such counsel, the
ownership or leasing of properties requires such qualification
or the conduct of its business requires such qualification
(except where the failure to so qualify would not have a
Material Adverse Effect); and the Company has all necessary
corporate power and all material governmental authorizations,
permits and approvals required to own, lease and operate its
properties and conduct its business as described in the
Prospectus;
(ii) Each of the Company's subsidiaries has been
duly and validly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, and is qualified to do
business and is in good standing in each jurisdiction in
which, to the knowledge of such counsel, the ownership or
leasing of properties requires such qualification or the
conduct of its business requires such qualification (except
where the failure to so qualify would not have a Material
Adverse Effect); and each such subsidiary has all necessary
corporate power and all material governmental authorizations,
permits and approvals required to own, lease and operate its
properties and to conduct its business as described in the
Prospectus;
(iii) All the outstanding shares of capital stock
of each of the Company's subsidiaries have been duly
authorized and are validly issued and outstanding, are fully
paid and non-assessable and, except as otherwise set forth in
the Prospectus, are owned by the Company of record and to the
best knowledge of such counsel, (A) beneficially and (B) free
and clear of all liens, encumbrances, equities, security
interests or claims of any nature whatsoever with the
exception of the Company's pledge of the capital stock of
Newpark to Xxxxxx pursuant to the Xxxxxx Pledge Agreement and
the Company's pledge of the capital stock of EAE Industries,
Inc. to Xxxxxx pursuant to the terms of the EAE Pledge
Agreement; and neither the Company
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nor any of its subsidiaries has granted any outstanding
options, warrants or commitments with respect to any shares of
its capital stock, whether issued or unissued, except as
otherwise described in the Prospectus;
(iv) The Company has an authorized capitalization
as set forth in the Registration Statement and all the issued
shares of capital stock of the Company (including the
Securities to be sold by the Selling Stockholders) have been
duly and validly authorized and issued and are fully paid and
non-assessable; are free of any preemptive rights, and were
issued and sold in compliance with all applicable Federal and
state securities laws; except as described in the Prospectus,
to the knowledge of such counsel, there are no outstanding
options, warrants or other rights calling for the issuance of,
and there are no commitments, plans or arrangements to issue,
any shares of capital stock of the Company; the Securities
being sold by the Company have been duly and validly
authorized and, when duly countersigned by the Company's
Transfer Agent and Registrar and issued, delivered and paid
for in accordance with the provisions of the Registration
Statement and this Agreement, will be duly and validly issued,
fully paid and non-assessable; the Securities conform to the
description thereof in the Prospectus; the Securities have
been duly authorized for quotation on the Nasdaq National
Market, as of the Effective Date; and the certificates for the
Securities as are in valid and sufficient form;
(v) To the best of such counsel's knowledge,
there are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries or
any of their respective officers or directors is a party or of
which any property of the Company or any of its subsidiaries
is the subject which, if resolved against the Company or any
of its subsidiaries or any of their respective officers or
directors, individually, or to the extent involving related
claims or issues, in the aggregate, is of a character required
to be disclosed in the Prospectus which has not been properly
disclosed therein;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company;
(vii) The Acquisition Agreement has been duly
authorized, executed and delivered by the Company and EAE and
is a legal, valid and binding obligation of the Company and
EAE enforceable in accordance with their terms, except as
enforceability of the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally;
(viii) The Exchange Agreement has been duly
authorized, executed and delivered by each of the Company and
the Exchange Participants and is a legal, valid and binding
obligation of each of the Company and the Exchange
Participants, enforceable against each person in accordance
with its terms, except as enforcement
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may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally;
(ix) The Company has full corporate power and
authority to execute, deliver and perform this Agreement, and
the execution, delivery and performance of this Agreement, the
consummation of the transactions herein contemplated and the
issue and sale of the Securities and the compliance by the
Company with all the provisions of this Agreement will not
result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge, claim or encumbrance upon, any
of the property or assets of the Company or any of its
subsidiaries pursuant to, the terms of any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument filed as an exhibit to the Registration Statement
to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in
any violation of the provisions of the Certificate of
Incorporation or the Bylaws, in each case as amended, of the
Company or any of its subsidiaries, or any statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
(x) The execution, delivery and performance of
the Exchange Agreement and the Acquisition Agreement and the
consummation of the transactions contemplated thereby will not
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge, claim, or
encumbrance upon, any of the property or assets of the Company
or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument filed as an exhibit to the Registration Statement
to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in
any violation of the provisions of the Certificate of
Incorporation or the Bylaws, in each case as amended, of the
Company or any of its subsidiaries or any statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
(xi) No consent, approval, authorization, order,
registration or qualification of or with any court or any
regulatory authority or other governmental body is required
for the issue and sale of the Securities or the consummation
of the other transactions contemplated by this Agreement,
except such as have been obtained under the Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign
securities or Blue Sky laws
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in connection with the purchase and distribution of the
Securities by the Underwriters, provided that such counsel
shall not be required to express any opinion as to the
requirements of state securities or blue sky laws;
(xii) No authorization, approval, consent or order
of, or filing with, any court or governmental authority or
agency is required in connection with the consummation of the
transactions effected or contemplated by the Exchange
Agreement or the Acquisition Agreement other than (i) such
authorizations, approvals, consents and orders as have been
obtained or such filing as have been made prior to the date
hereof and (ii) such authorizations, approvals, consents,
orders and filings as to which the failure to obtain or make
would not, individually or in the aggregate, have a Material
Adverse Effect;
(xiii) Upon the consummation of the transactions
contemplated by the Exchange Agreement, all of the outstanding
capital stock of Newpark will be owned by the Company of
record and to the best knowledge of such counsel, (A)
beneficially and (B) free and clear of all liens,
encumbrances, equities, security interests or claims of any
nature whatsoever except for the Company's pledge of the
capital stock of Newpark to Xxxxxx pursuant to the terms of
the Xxxxxx Pledge Agreement;
(xiv) It is not necessary in connection with the
offer, sale and delivery of the shares of Common Stock to the
Exchange Participants pursuant to the Exchange Agreement to
register such shares of Common Stock under the Act;
(xv) Upon the consummation of the transactions
contemplated by the Acquisition Agreement, all of the
outstanding capital stock of Xxxx Xxxxxxxxx Marine, Inc. and
Xxxxxxxxx Shipyard and Fabrication, Inc. will be owned,
directly or indirectly, by EAE, a wholly owned subsidiary of
the Company, of record and to the best knowledge of such
counsel, (A) beneficially and (B) free and clear of all liens,
encumbrances, equities, security interests or claims of any
nature whatsoever;
(xvi) To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries is currently
in violation of its Certificate of Incorporation or Bylaws or
in default under, any indenture, mortgage, deed of trust,
lease, bank loan or credit agreement or any other material
agreement or instrument of which such counsel has knowledge to
which the Company or any of its subsidiaries is a party or by
which any of them or any of their property may be bound or
affected (in any respect that is material in light of the
financial condition of the Company and its subsidiaries, taken
as a whole);
(xvii) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any Securities pursuant
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to the Company's Certificate of Incorporation or Bylaws, in
each case as amended to the date hereof, or any agreement or
other instrument known to such counsel; and no holders of
securities of the Company have rights to the registration
thereof under the Registration Statement or, if any such
holders have such rights, such holders have waived such
rights;
(xviii) To the best of such counsel's knowledge,
there are no contracts or other documents required to be
summarized or disclosed in the Prospectus or to be so filed as
an exhibit to the Registration Statement, which have not been
so summarized or disclosed, or so filed;
(xix) The statements under the captions "Risk
Factors -- Impact of Environmental Laws", "Risk Factors --
Legislative Proposals to Rescind Provisions of Xxxxx Act", "
Risk Factors -- Certain Anti-takeover Effects", "Risk Factors
-- Shares Eligible for Future Sale", "Business -- Environmental
Regulation", Business -- Other Regulation", "Business -- Legal
Proceedings", "Description of Capital Stock" and "Shares
Eligible for Future Sale" in the Prospectus and Items 14 and 15
of Part II of the Registration Statement insofar as such
statements constitute a summary of legal matters, documents or
proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings;
(xx) Nothing has come to such counsel's
attention to give such counsel reason to believe that any of
the representations and warranties of the Company contained in
this Agreement or in any certificate or document contemplated
under this Agreement to be delivered are not true or correct
or that any of the covenants and agreements herein contained
to be performed on the part of the Company or any of the
conditions herein contained, or set forth in the Registration
Statement and the Prospectus, to be fulfilled or complied with
by the Company have not been or will not be duly and timely
performed, fulfilled or complied with;
(xxi) Neither the Company nor any of its
subsidiaries is an "investment company" or a person
"controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended;
(xxii) This Agreement has been duly authorized,
executed and delivered by or on behalf of each of the Selling
Stockholders and is a legal, valid and binding agreement of
each of the Selling Stockholders enforceable in accordance
with its terms, except as enforceability of the same may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors'
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rights generally and except as enforceability of those
provisions relating to indemnity may be limited by the Federal
securities laws, principles of public policy and general
principles of equity;
(xxiii) Each Power of Attorney and Custody
Agreement has been duly executed and delivered by the
respective Selling Stockholders named therein and constitutes
a legal, valid and binding agreement of such Selling
Stockholder enforceable in accordance with its terms, except
as enforceability of the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and except as
enforceability of those provisions relating to indemnity may
be limited by the Federal securities laws and principles of
public policy;
(xxiv) The execution, delivery and performance of
this Agreement and the Power of Attorney and Custody Agreement
and the sale and delivery of the Securities and the
consummation of the transactions contemplated in this Agreement
and compliance by the Selling Shareholders with its obligations
under this Agreement will not constitute a default under, or
result in the creation or imposition of any lien, charge,
claim, tax or encumbrance upon the Securities or any property
or assets of the Selling Shareholders pursuant to the terms of
any indenture, mortgage, deed of trust, loan or material
agreement or instrument known to such counsel to which any
Selling Shareholder is a party or by which it may be bound, or
to which any of the property or assets of the Selling
Shareholders is subject, nor will such action result in any
violation of the provisions of the charter or bylaws of the
Selling Stockholders, if applicable, or any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over such
Selling Shareholder or any of its properties;
(xxv) To the best of such counsel's knowledge,
each Selling Shareholder has valid and marketable title to the
Securities to be sold by such Selling Shareholder pursuant to
this Agreement, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind,
and has full right, power and authority to sell, transfer and
deliver such Securities pursuant to this Agreement. Upon
purchase of the Securities to be sold by the Selling
Stockholders as provided in this Agreement, each of the
Underwriters (assuming that it is a bona fide purchaser within
the meaning of the Uniform Commercial Code) will acquire good
and marketable title to such securities, free and clear of any
pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind; and
(xxvi) The Registration Statement has become
effective under the Act, the Prospectus has been filed in
accordance with Rule 424(b) of the rules and regulations of
the Commission under the Act, including the applicable time
periods set forth therein, or such filing is not required and,
to the knowledge of such counsel, no stop
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order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are pending or threatened under the
Act, and the Registration Statement, the Prospectus and each
amendment or supplement thereto, as of their respective
effective or issue dates, appeared on its face to comply as to
form in all material respects with the applicable requirements
of the Act and the rules and regulations thereunder; it being
understood that such counsel need express no opinion as to the
financial statements and schedules or other financial data
contained in the Registration Statement or the Prospectus;
Such counsel shall also state that nothing has come to such
counsel's attention that would lead such counsel to believe that the
Registration Statements or any amendment thereto (other than the
financial statements and schedules or other financial data contained
in the Registration Statement, as to which such counsel need express
no opinion) at the time such Registration Statement or any amendment
thereto become effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that
the Prospectus or any amendment or supplement thereto (other than the
financial statements and schedules or other financial data contained
in the Prospectus, as to which such counsel need express no opinion)
at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued, or at the Time of Delivery,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering their opinions set forth in Section 7(d) above,
such counsel may rely, to the extent deemed advisable by such counsel,
(a) as to factual matters, upon certificates of public officials and
officers of the Company and the Selling Shareholders, and (b) as to
the laws of any jurisdiction other than the United States and
jurisdictions in which they are admitted, on opinions of counsel
(provided, however, that you shall have received a copy of each of
such opinions which shall be dated the Time of Delivery, addressed to
you or otherwise authorizing you to rely thereon, and Xxxxxx &
Xxxxxxxx, P.C. in its opinion to you delivered pursuant to this
subsection, shall state that such counsel are satisfactory to them and
Xxxxxx & Xxxxxxxx, P.C. has no reason to believe that the Underwriters
and they are not justified to so rely);
In addition, such counsel may state that its opinion is
limited to matters governed by the federal laws of the United States
of America, the laws of the State of Texas and the corporate laws of
the State of Delaware and that such counsel is not admitted in the
State of Delaware. The foregoing opinion may be qualified by a
statement to the effect that such counsel 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 stated in (xix) above.
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(e) Xxxxx & Xxxxx, L.L.P., counsel to the Underwriters,
shall have furnished to you their written opinion or opinions, dated
the Time of Delivery, in form and substance satisfactory to you, with
respect to the incorporation of the Company, the validity of the
Securities, the Registration Statement, the Prospectus and other
related matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(f) At the time this Agreement is executed and also at
the Time of Delivery, Xxxxx Xxxxxxxx LLP shall have furnished to you a
letter or letters, dated the date of this Agreement and the Time of
Delivery, in form and substance satisfactory to you, to the effect,
that:
(i) They are independent accountants with
respect to the Company and its subsidiaries within the meaning
of the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion the consolidated financial
statements of the Company and its subsidiaries (including the
related schedules and notes) included in the Registration
Statement and Prospectus and covered by their reports included
therein comply as to form in all material respects with the
applicable accounting requirements of the Act and the
published rules and regulations thereunder;
(iii) On the basis of specified procedures as of
a specified date not more than three days prior to the date of
their letter (which procedures do not constitute an
examination made in accordance with generally accepted
auditing standards), consisting of a reading of the latest
available unaudited interim consolidated financial statements
of the Company and its subsidiaries, a reading of the latest
available minutes of any meeting of the Board of Directors and
stockholders of the Company and its subsidiaries since the
date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries who have responsibility for financial and
accounting matters, and such other procedures or inquiries as
are specified in such letter, nothing came to their attention
that caused them to believe that:
(A) The unaudited consolidated condensed
financial statements of the Company and its
subsidiaries included in the Prospectus do not
comply in form in all material respects with the
applicable accounting requirements of the Act and
the rules and regulations promulgated thereunder or
are not presented in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
consolidated financial statements included in the
Registration Statement and the Prospectus;
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(B) as of a specified date not more than
three days prior to the date of their letter, there
was any change in the capital stock, or increases in
the long-term debt or short-term debt of the Company
and its subsidiaries on a consolidated basis, or any
decrease in total assets, total current assets or
stockholders' equity or other items specified by the
Representatives, of the Company and its subsidiaries
on a consolidated basis, each as compared with the
amounts shown on the September 30, 1997 Consolidated
Balance Sheet included in the Registration Statement
and the Prospectus, except in each case for changes,
increases or decreases which the Prospectus
discloses have occurred or may occur; and
(C) for the period from October 1, 1997
to a specified date not more than three days prior
to the date of such letter, there was any decrease,
as compared with the corresponding period of the
preceding fiscal year, in the following consolidated
amounts: gross margin, earnings (loss) from
operations, earnings (loss) before income taxes, net
earnings (loss) or earnings (loss) per common and
common equivalent share of the Company and its
subsidiaries, except in all instances for decreases
which the Registration Statement discloses have
occurred or may occur;
(D) in addition to the examination
referred to in their reports included in the
Registration Statement and the Prospectus and the
limited procedures referred to in clause (iii)
above, they have carried out certain specified
procedures, not constituting an audit, with respect
to certain amounts, percentages and financial
information specified by the Representatives, which
are derived from the general accounting records of
the Company and its subsidiaries which appear in the
Prospectus, or in Part II of, or in exhibits and
schedules to, the Registration Statement, and have
compared such amounts and financial information with
the accounting records of the Company and its
subsidiaries, and have found them to be in agreement
and have proved the mathematical accuracy of certain
specified percentages; and
(E) On the basis of a reading of the pro
forma consolidated financial statements included in
the Registration Statement and the Prospectus,
carrying out certain specified procedures that would
not necessarily reveal matters of significance with
respect to the comments set forth in this clause
(v), inquiries of certain officials of the Company
and its consolidated subsidiaries and Xxxxxxxxx who
have responsibility for financial and accounting
matters and proving the arithmetic accuracy of the
application of the pro forma adjustments to the
historical amounts in the proforma consolidated
financial statements, nothing came to their
attention that caused them to believe that the pro
forma consolidated financial
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statements do not comply in form in all material
respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to
the historical amounts in the compilation of such
statements.
(g) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial
statements included in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree other than as
set forth or contemplated in the Prospectus; and since the respective
dates as of which information is given in the Prospectus, there shall
not have been any change in the capital stock (other than shares
issued pursuant to the 1997 Incentive Equity Plan) or short-term debt
or long-term debt of the Company or any of its subsidiaries nor any
change or any development involving a prospective material adverse
change, in or affecting the general affairs, management, consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(h) Between the date hereof and the Time of Delivery
there shall have been no declaration of war by the Government of the
United States; at the Time of Delivery there shall not have occurred
any material adverse change in the financial or securities markets in
the United States or in political, financial or economic conditions in
the United States or any outbreak or material escalation of
hostilities or other calamity or crisis, the effect of which is such
as to make it, in the judgment of the Representatives, impracticable
to market the Securities or to enforce contracts for the resale of
Securities and no event shall have occurred resulting in (i) trading
in securities generally on the New York Stock Exchange or in the
Common Stock on the principal securities exchange or market in which
the Common Stock is listed or quoted being suspended or limited or
minimum or maximum prices being generally established on such exchange
or market, or (ii) additional material governmental restrictions, not
in force on the date of this Agreement, being imposed upon trading in
securities generally by the New York Stock Exchange or in the Common
Stock on the principal securities exchange or market in which the
Common Stock is listed or quoted or by order of the Commission or any
court or other governmental authority, or (iii) a general banking
moratorium being declared by either Federal, New York or Texas
authorities;
(i) The Company shall have furnished or caused to be
furnished to you at the Time of Delivery certificates signed by the
chief executive officer and the chief financial officer, on behalf of
the Company, satisfactory to you as to such matters as you may
reasonably request and as to (i) the accuracy of the Company's
representations and warranties herein at and as of the Time of
Delivery; (ii) the performance by the Company of all its
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obligations hereunder to be performed at or prior to the Time of
Delivery; (iii) the fact that they have carefully examined the
Registration Statement and Prospectus and, (A) as of the Effective
Date, the statements contained in the Registration Statement and the
Prospectus were true and correct and neither the Registration
Statement nor the Prospectus omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading and (B) since the Effective Date, no event has occurred
that is required by the Act or the rules and regulations of the
Commission thereunder to be set forth in an amendment of, or a
supplement to, the Prospectus that has not been set forth in such an
amendment or supplement; and (iv) the matters set forth in subsections
(a) and (g) of this Section 7;
(j) A certificate, dated the Time of Delivery and
addressed to you, signed by or on behalf of each of the Selling
Stockholders to the effect that the representations and warranties of
such Selling Stockholder in this Agreement are true and correct, as if
made at and as of the Time of Delivery, and such Selling Stockholder
has complied with all the agreements and satisfied all the conditions
on his part to be performed or satisfied prior to the Time of
Delivery;
(k) Prior to or concurrently with the sale of the
Securities at the Time of Delivery, the closing of the Exchange shall
occur on the basis set forth in the Prospectus;
(l) Each director and executive officer of the Company
shall have delivered to you an agreement not to offer, sell, contract
to sell or otherwise dispose of any shares of capital stock of the
Company (or securities convertible into, or exchangeable for, capital
stock of the Company), directly or indirectly, for a period of 180
days after the date of this Agreement, without the prior written
consent of Xxxxxxxx & Co. Inc.; and
(m) The Company shall have delivered to you evidence
that the Securities have been authorized for quotation on the Nasdaq
National Market as of the Effective Date.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, or in any Blue Sky application or other document
executed by the Company specifically for that purpose or based upon
written information furnished by the Company filed in any state or
other jurisdiction in order to qualify any or all the Securities under
the security laws thereof or filed with the Commission or any
securities association or securities exchange (each, an
"Application"), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements made therein not misleading, or (ii) any untrue statement
or alleged untrue statement made by the
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Company in Section 1(a) of this Agreement, or (iii) the employment by
the Company of any device, scheme or artifice to defraud, or the
engaging by the Company in any act, practice or course of business
which operates or would operate as a fraud or deceit, or any
conspiracy with respect thereto, in which the Company shall
participate, in connection with the issuance and sale of any of the
Securities, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating, preparing to defend, defending or appearing as a
third-party witness in connection with any such action or claim;
provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission relating to an Underwriter
made in any Preliminary Prospectus, the Registration Statement, the
Prospectus or such amendment or supplement or any Application in
reliance upon and in conformity with written information furnished to
the Company by such Underwriter through you expressly for use therein
and provided, further, that the indemnity agreement contained in this
Section 8(a) with respect to any Preliminary Prospectus shall not
inure to the benefit of any Underwriter (or any persons controlling
such Underwriter) on account of any losses, claims, damages, liability
or litigation arising from the sale of Securities to any person, if
such Underwriter fails to send or give a copy of the Prospectus, as
the same may be then supplemented or amended, to such person, within
the time required by the Act and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact
contained in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure is the result of noncompliance by the
Company with Section 5(c) hereof.
(b) In addition to any obligations of the Company under
Section 8(a), the Company agrees that it shall perform its
indemnification obligations under Section 8(a) (as modified by the
last paragraph of this Section 8(b)) with respect to counsel fees and
expenses and other expenses reasonably incurred by making payments to
the Underwriter within 45 days of receipt of a statement in the amount
of the statements of the Underwriter's counsel or other statements
which shall be forwarded by the Underwriter, and that they shall make
such payments notwithstanding the absence of a judicial determination
as to the propriety and enforceability of the obligation to reimburse
the Underwriters for such expenses and the possibility that such
payments might later be held to have been improper by a court and a
court orders return of such payments.
The indemnity agreement in Section 8(a) shall be in addition
to any liability which the Company may otherwise have and shall extend
upon the same terms and conditions to each person, if any, who
controls any Underwriter within the meaning of the Act or the Exchange
Act.
(c) Each Selling Stockholder will indemnify and hold
harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any
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untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or any
Application, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements made therein not misleading, or (ii) any untrue statement
or alleged untrue statement made by the Selling Stockholder in Section
1(b) of this Agreement, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating, preparing to defend, defending or
appearing as a third-party witness in connection with any such action
or claim; provided, however, that the Selling Stockholders shall not
be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission relating
to an Underwriter made in any Preliminary Prospectus, the Registration
Statement, the Prospectus or such amendment or supplement or any
Application in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you
expressly for use therein; provided, further, that in no event shall
the liability of any Selling Stockholder under this Section 8(c)
exceed the proceeds received by such Selling Stockholder from the sale
of Securities pursuant to this Agreement and provided, further, that
the indemnity agreement contained in this Section 8(a) with respect to
any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or any persons controlling such Underwriter) on account
of any losses, claims, damages, liability or litigation arising from
the sale of Securities to any person, if such Underwriter fails to
send or give a copy of the Prospectus, as the same may be then
supplemented or amended, to such person, within the time required by
the Act and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such
Preliminary Prospectus was corrected in the Prospectus, unless such
failure is the result of noncompliance by the Company with Section
5(c) hereof
(d) In addition to any obligations of each of the Selling
Stockholders under Section 8(c), each of the Selling Stockholders
agrees that it shall perform its indemnification obligations under
Section 8(c) (as modified by the last paragraph of this Section 8(d))
with respect to counsel fees and expenses and other expenses reasonably
incurred by making payments to the Underwriter within 45 days of
receipt of a statement in the amount of the statements of the
Underwriter's counsel or other statements which shall be forwarded by
the Underwriter, and that they shall make such payments notwithstanding
the absence of a judicial determination as to the propriety and
enforceability of the obligation to reimburse the Underwriters for such
expenses and the possibility that such payments might later be held to
have been improper by a court and a court orders return of such
payments.
The indemnity agreement in Section 8(c) shall be in addition
to any liability which the Selling Stockholders may otherwise have and
shall extend upon the same terms and conditions to each person, if
any, who controls any Underwriter within the meaning of the Act or the
Exchange Act.
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(e) Each Underwriter shall indemnify and hold harmless
the Company and each of its officers, employees and directors and the
Selling Stockholders against any losses, claims, damages or
liabilities to which the Company or any such officer, employee or
director or any of the Selling Stockholders may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto,
or any Application, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the
Registration Statement, the Prospectus or such amendment or supplement
or any Application in reliance upon and in conformity with written
information furnished to the Company by such Underwriter relating to
such Underwriter through you expressly for use therein, and will
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such action or claim.
The indemnity agreement in this Section 8(e) shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act or the
Exchange Act.
(f) Promptly after receipt by an indemnified party under
Section 8(a), 8(c) or 8(e) of notice of the commencement of any action
(including any governmental investigation), such indemnified party
shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to
notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party under Section 8(a), 8(c) or
8(e) except to the extent it was unaware of such action and has been
prejudiced in any material respect by such failure or from any
liability which it may have to any indemnified party otherwise than
under such Section 8(a), 8(c) or 8(e). In case any such action shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party, and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
If, however, (i) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the
indemnifying party
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or (ii) an indemnified party shall have reasonably concluded that
representation of such indemnified party and the indemnifying party by
the same counsel would be inappropriate under applicable standards of
professional conduct due to actual or potential differing interests
between them and the indemnified party so notifies the indemnifying
party, then the indemnified party shall be entitled to employ counsel
different from counsel for the indemnifying party at the expense of
the indemnifying party and the indemnifying party shall not have the
right to assume the defense of such indemnified party. In no event
shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to local counsel) for all indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same set
of allegations or circumstances. The counsel with respect to which
fees and expenses shall be so reimbursed shall be designated in
writing by Xxxxxxxx & Co. Inc. in the case of parties indemnified
pursuant to Sections 8(a) and 8(c) and by the Company and the Selling
Stockholders in the case of parties indemnified pursuant to Section
8(e).
If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Sections 8(b) or 8(d), the
indemnifying party agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such proceeding.
(g) In order to provide for just and equitable
contribution under the Act in any case in which (i) any Underwriter
(or any person who controls any Underwriter within the meaning of the
Act or the Exchange Act) makes claim for indemnification pursuant to
Section 8(a) or 8(c) hereof, but is judicially determined (by the
entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in
such case notwithstanding the fact that Section 8(a) or 8(c) provides
for indemnification in such case or (ii) contribution under the Act
may be required on the part of any Underwriter or any such controlling
person in circumstances for which indemnification is provided under
Section 8(e), then, and in each such case, each indemnifying party
shall contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject as an indemnifying party
hereunder (after contribution from others) in such proportion as is
appropriate to reflect the relative benefits received by the Company
and each of the Selling Stockholders on the one hand and the
Underwriters on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence
is not
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permitted by applicable law or if the indemnified party failed to give
the notice required under Section 8(f) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
and the Selling Stockholders on the one hand and the Underwriters on
the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company or any
of the Selling Stockholders on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total
net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by the Company or any
of the Selling Stockholders bear to the total underwriting discounts
and commissions received by the Underwriters with respect to the
Securities purchased under this Agreement, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, 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 any of the Selling Stockholders on the one
hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Selling
Stockholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(g) were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 8(g). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
Section 8(g) shall be deemed to include 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(g), (i) no Underwriter shall be
required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission and (ii) no Selling Stockholder shall be required to
contribute any amount in excess of the proceeds received by such
Selling Stockholder from the sale of Securities pursuant to this
Agreement. No person guilty of a 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 in this Section 8(g)
to contribute are several in proportion to their respective
underwriting obligations and not joint.
(h) Promptly after receipt by any party to this
Agreement of notice of the commencement of any action, suit or
proceeding, such party will, if a claim for contribution in respect
thereof is to be made against another party (the "contributing
party"), notify the contributing party of the commencement thereof;
but the omission to so notify the
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contributing party will not relieve it from any liability which it may
have to any other party for contribution under the Act except to the
extent it was unaware of such action and has been prejudiced in any
material respect by such failure or from any liability which it may
have to any other party other than for contribution under the Act. In
case any such action, suit or proceeding is brought against any party,
and such party notifies a contributing party of the commencement
thereof, the contributing party will be entitled to participate
therein with the notifying party and any other contributing party
similarly notified.
9. (a) If any Underwriter shall default in its obligation
to purchase the Firm Securities which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another party
or other parties to purchase such Firm Securities on the terms
contained herein. If the aggregate number of Firm Securities as to
which Underwriters default is more than one-eleventh of the aggregate
number of all the Firm Securities and within 36 hours after such
default by any Underwriter you do not arrange for the purchase of such
Firm Securities, then the Company shall be entitled to a further
period of 36 hours within which to procure another party or other
parties satisfactory to you to purchase such Firm Securities on such
terms. In the event that, within the respective prescribed periods,
you notify the Company that you have so arranged for the purchase of
such Firm Securities, or the Company notifies you that it has so
arranged for the purchase of such Firm Securities, you or the Company
shall have the right to postpone the Time of Delivery for a period of
not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the
Prospectus or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement
or the Prospectus which in you opinion may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect to
such Firm Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Firm Securities of such defaulting Underwriter or
Underwriters by you or the Company or both as provided in subsection
(a) above, the aggregate number of such Firm Securities which remain
unpurchased does not exceed one-eleventh of the aggregate number of
all the Firm Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the number of the
Firm Securities which such Underwriter agreed to purchase hereunder
and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Firm Securities
which such Underwriter agreed to purchase hereunder) of the Firm
Securities of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Securities of a defaulting Underwriter or
Underwriters by you or the Company as provided in subsection (a)
above, the aggregate number of such Firm Securities which remain
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unpurchased exceeds one-eleventh of the aggregate number of all the
Firm Securities, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting
Underwriters to purchase Firm Securities of a defaulting Underwriter
or Underwriters, then this Agreement shall thereupon terminate without
liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity
agreement in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and
the several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, or any Selling Stockholder, or any officer
or director or controlling person of any Selling Stockholder and shall survive
delivery of and payment for the Securities.
11. This Agreement shall become effective (a) if the Registration
Statement has not heretofore become effective, at the earlier of 12:00 Noon,
New York City time, on the first full business day after the Registration
Statement becomes effective, or at such time after the Registration Statement
becomes effective as you may authorize the Sale of the Securities to the public
by Underwriters or other securities dealers, or (b) if the Registration
Statement has heretofore become effective, at the earlier of 24 hours after the
filing of the Prospectus with the Commission or at such time as you may
authorize the sale of the Securities to the public by Underwriters or
securities dealers, unless, prior to any such time you shall have received
notice from the Company that it elects that this Agreement shall not become
effective, or you, or through you such of the Underwriters as have agreed to
purchase in the aggregate fifty percent or more of the Firm Securities
hereunder, shall have given notice to the Company that you or such Underwriters
elect that this Agreement shall not become effective; provided, however, that
the provisions of this Section and Section 6 and Section 8 shall at all times
be effective.
If this Agreement shall be terminated pursuant to Section 9 hereof, or
if this Agreement, by election of you or the Underwriters, shall not become
effective pursuant to the provisions of this Section, the Company shall not
then be under any liability to any Underwriter except as provided in Section 6
and Section 8 hereof, but if this Agreement becomes effective and is not so
terminated but the securities are not delivered by or on behalf of the Company
as provided herein because the Company has been unable for any reason beyond
its control and not due to any default by it to comply with the terms and
conditions hereof, the Company will reimburse the Underwriters through you for
all out-of- pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities, but the
Company shall then be under no further liability to any Underwriter except as
provided in Section 6 and Section 8 hereof.
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12. The statements set forth in the last paragraph on the front
cover page of the Prospectus, the paragraph on the inside front cover of the
Prospectus containing stabilization language, the table under the caption
"Underwriting" in the Prospectus and the third and eighth paragraphs under the
caption "Underwriting" in the Prospectus constitute the only information
furnished by any Underwriter made or given by you jointly or by Xxxxxxxx & Co.
Inc. on behalf of you as the Representatives.
13. In all dealings hereunder, you shall act on behalf of each of
the Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter made
or given by you jointly or by Xxxxxxxx & Co. Inc. on behalf of you as the
Representatives.
All statements, requests, notices and agreements hereunder, unless
otherwise specified in this Agreement, shall be in writing and, if to the
Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission (with confirmation of receipt) to you as the Representatives in
care of Xxxxxxxx & Co. Inc., Equitable Center, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Syndicate Department; if to the Company, shall be
delivered or sent by mail, telex or facsimile transmission (with confirmation
of receipt) to the address of the Company set forth in the Registration
Statement, Attention: Xxxxx X. Xxxxx; and if to any Selling Stockholder, shall
be delivered or sent by mail, telex or facsimile transmission (with
confirmation of receipt) to the address of the Company set forth in the
Registration Statement, Attention: Xxxxx X. Xxxxx, as Attorney-in-Fact;
provided, however, that any notice to any Underwriter pursuant to Section 8(f)
hereof shall be delivered or sent by mail, telex or facsimile transmission
(with confirmation of receipt) to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Selling Stockholders and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and the Selling Stockholders and each person who controls the
Company, any Underwriter or any Selling Stockholder, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
16. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS
PRINCIPLES THEREOF.
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17. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
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If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters',
the Company and each of the Selling Stockholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement Among Underwriters, manually or
facsimile executed counterparts of which, to the extent practicable and upon
request, shall be submitted to the Company for examination, but without
warranty on you part as to the authority of the signers thereof.
Very truly yours,
FIRST WAVE MARINE, INC.
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
SELLING STOCKHOLDERS
By:
-----------------------------------
As Attorney-in-Fact for each of the
several Selling Stockholders named
in Schedule II
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Accepted as of the date hereof:
XXXXXXXX & CO. INC.
XXXXXXXXX & COMPANY, INC.
XXXXXX XXXXXX & COMPANY, INC.
Representatives of the several Underwriters
By: XXXXXXXX & CO. INC.
By:
-----------------------------------------
Managing Director
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SCHEDULE I
Underwriter Number of Firm Securities
----------- -------------------------
Xxxxxxxx & Co. Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxxxx & Company, Inc. . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxx Xxxxxx & Company, Inc. . . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
-------------------------
=========================
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SCHEDULE II
Maximum Number of
Number of Firm Securities Option Securities to be
to be Sold Sold by Selling
Name of Selling Stockholder by Selling Stockholder Stockholder
--------------------------- ------------------------- -----------------------
