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EXHIBIT 1.1
DRAFT OF DECEMBER 29, 1997
FIRST WAVE MARINE, INC.
$85,000,000
____% Senior Notes due 2008
__________________
UNDERWRITING AGREEMENT
New York, New York
____________, 1998
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"),
Newpark Shipbuilding and Repair, Inc., a Texas corporation ("Newpark"), EAE
Services, Inc., a Texas corporation ("EAE Services"), EAE Industries, Inc., a
Texas corporation ("EAE Industries"), Newpark Marine Fabricators, Inc., a Texas
corporation ("Newpark Marine"), and Louisiana Ship, Inc., a Texas corporation
("Louisiana Ship" and together with Newpark, EAE Services, EAE Industries and
Newpark Marine, the "Subsidiary Guarantors"), propose, subject to the terms and
conditions stated herein, to issue and sell to Xxxxxxxx & Co. Inc. (the
"Underwriter") $85,000,000 aggregate principal amount of the Company's ___%
Senior Notes due 2008 (the "Securities"). The Securities are to be issued
pursuant to the provisions of an Indenture, to be dated as of _________, 1998
(the "Indenture"), among the Company, as issuer, the Subsidiary Guarantors, as
guarantors, and ____________, as trustee (the "Trustee"). As provided in the
Indenture, the Securities are to be guaranteed on a senior unsecured basis
pursuant to guarantees (the "Subsidiary Guarantees") of the Subsidiary
Guarantors. The Company will use a portion of the proceeds from the sale of
the Securities to purchase a portfolio of U.S. government securities (the
"Pledged Securities") pursuant to the Pledge and Security Agreement, to be
dated as of _________, 1998 (the "Pledge Agreement"), among the Company and
_____________, as pledge agent (the "Pledge Agent"), which will provide funds
sufficient to pay in full when due the first two scheduled interest payments on
the Securities.
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The Company and certain minority shareholders (the "Exchange
Participants") of 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 999,390 shares of common stock, par value $0.01 per
share ("Common Stock"), of the Company (collectively, the "Exchange"). The
Company, EAE Services, 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 Services will purchase (the "Xxxxxxxxx
Acquisition") 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 and the Subsidiary Guarantors represent and
warrant to, and agree with the Underwriter that:
(i) A registration statement on Form S-1 (File No.
333-38157), 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;
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
and the Subsidiary Guarantors 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 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");
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(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 you expressly for use therein;
(iii) On the Effective Date and the date the 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 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, including all of the
Subsidiary Guarantors, 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
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, including all of the Subsidiary Guarantors,
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,
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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 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 Guarantor 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 and each of the Subsidiary Guarantors
have all requisite power and authority to execute, deliver and perform
their obligations under this Agreement; the execution, delivery and
performance by the Company and each of the Subsidiary Guarantors of
their obligations under this Agreement have been duly and validly
authorized by all requisite corporate action of the Company and each
of the Subsidiary Guarantors; and this Agreement constitutes the
legal, valid and binding obligation of the Company and each of the
Subsidiary Guarantors, enforceable against the Company and each of the
Subsidiary Guarantors 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 general principles of equity (regardless of whether such
enforcement is considered in a proceeding at law or in equity) and
except as enforceability of those provisions relating to indemnity may
be limited by Federal securities laws and principles of public policy;
(vii) The Indenture has been duly and validly authorized by
the Company and each of the Subsidiary Guarantors and, when executed
and delivered by the Company and each of the Subsidiary Guarantors and
authorized, executed and delivered by the Trustee, will constitute a
valid and legally binding obligation of the Company and each of the
Subsidiary Guarantors enforceable in accordance with its terms, except
insofar as enforcement may be limited by any bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and general principles of equity (regardless of
whether such enforcement is considered in a proceeding at law or in
equity); the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act") and the rules and
regulations of the Commission thereunder (the "1939 Act Regulations");
and the Indenture conforms in all material respects to the description
thereof contained in the Registration Statement and the Prospectus;
(viii) The Pledge Agreement has been duly and validly
authorized by the Company and, when executed and delivered by the
Company and authorized, executed and delivered by the Pledge Agent,
will constitute a valid and legally binding obligation of the Company
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enforceable in accordance with its terms, except insofar as
enforcement may be limited by any bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and general principles of equity (regardless of
whether such enforcement is considered in a proceeding at law or in
equity); and the Pledge Agreement conforms in all material respects to
the description thereof contained in the Registration Statement and
the Prospectus;
(ix) 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;
(x) 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;
(xi) 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 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
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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;
(xii) The Securities have been duly and validly authorized
by the Company for issuance and sale to the Underwriter pursuant to
this Agreement and, when executed, authenticated and delivered in the
manner provided for in the Indenture against payment of the
consideration therefor in accordance with this Agreement, will be
valid and legally binding obligations of the Company, enforceable in
accordance with their terms and will be entitled to the benefits of
the Indenture, except insofar as enforcement may be limited by any
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and general principles of
equity (regardless of whether such enforcement is considered in a
proceeding at law or in equity); the issuance of the Securities is not
subject to preemptive or other similar rights to subscribe to or
purchase the same arising by operation of law or under the charter or
by-laws of the Company or otherwise; the form of the certificate to be
used to evidence the Securities will be in the form contemplated by
the Indenture; and the Securities conform in all material respects to
the description thereof contained in the Registration Statement and
the Prospectus;
(xiii) The Subsidiary Guarantees have been duly and validly
authorized by each of the Subsidiary Guarantors, and, when issued and
authenticated in accordance with the terms of the Indenture, each such
Subsidiary Guarantee will be a valid and legally binding obligation of
the respective Subsidiary Guarantor, enforceable against each such
Subsidiary Guarantor in accordance with its terms, except insofar as
enforcement may be limited by any bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and general principles of equity (regardless of
whether such enforcement is considered in a proceeding at law or in
equity); the issuance of the Subsidiary Guarantees is not subject to
preemptive or other similar rights to subscribe to or purchase the same
arising by operation of law or under the charter or by-laws of the
Subsidiary Guarantors or otherwise; and the Subsidiary Guarantees
conform in all material respects to the description thereof contained
in the Registration Statement and the Prospectus;
(xiv) The performance of this Agreement, the Indenture and
the Pledge Agreement, the consummation of the transactions herein and
therein contemplated and the issue and sale of the Securities and the
compliance by the Company and the Subsidiary Guarantors with all the
provisions of this Agreement, the Indenture and the Pledge 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
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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; 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, the Indenture and the Pledge 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
Underwriter;
(xv) 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;
(xvi) 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;
(xvii) 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
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the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic 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;
(xviii) 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;
(xix) 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;
(xx) 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;
(xxi) 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;
(xxii) 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;
(xxiii) 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;
(xxiv) The Acquisition Agreement has been duly authorized,
executed and delivered by each of the Company, EAE Services, 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 Services, 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 and general principles
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of equity (regardless of whether such enforcement is considered in a
proceeding at law or in equity);
(xxv) 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 and general principles of equity
(regardless of whether such enforcement is considered in a proceeding
at law or in equity);
(xxvi) 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;
(xxvii) 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;
(xxviii) 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);
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(xxix) 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;
(xxx) 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 Services, a wholly owned subsidiary of
the Company, and all of the 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);
(xxxi) 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;
(xxxii) 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;
(xxxiii) 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
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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;
(xxxiv) 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;
(xxxv) 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;
(xxxvi) 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");
(xxxvii) 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; and
(xxxviii) Each of the Company and the Subsidiary Guarantors
is, and immediately after the Time of Delivery will be, Solvent. As
used herein, the term "Solvent" means, with respect to an entity on a
particular date, that on such date (A) the aggregate fair market value
of the assets of such entity is greater than the total amount of the
liabilities (including the maximum amount of liability that may
reasonably be expected to result from contingent liabilities existing
on such date) of such entity as they become absolute and matured, (B)
the present fair salable value of the assets of such entity is greater
than the amount that will be required to pay the probable liabilities
of such entity on its debts as they become absolute and matured, (C)
such entity is able to realize upon its assets and pay its debts and
other liabilities including the maximum amount of liability that may
reasonably be expected to result from contingent obligations existing
on such date, as they become absolute and matured, (D) assuming sale
of the Securities as contemplated by this Agreement, such entity
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does not intend to, and does not believe that it will, incur debts or
liabilities beyond such entity's ability to pay as such debts and
liabilities mature, and (E) such entity is not engaged in any business
or a transaction, and is not about to engage in any business or a
transaction, for which the property of such entity and its
subsidiaries (to the extent of such entity's interest therein) would
constitute unreasonably small capital.
2. Subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to the Underwriter, and the Underwriter
agrees to purchase from the Company, $85,000,000 aggregate principal amount of
Securities at ____% of the principal amount thereof plus accrued interest
thereon, if any, from __________, 1998 to the date of payment and delivery.
3. The Underwriter proposes to offer the Securities for sale upon
the terms and conditions set forth in the Prospectus.
4. Certificates in definitive form for the Securities to be
purchased by you hereunder shall be delivered by the Company to you against
payment of the purchase price therefor by wire transfer, payable in same day
funds, to the order of the Company, for the purchase price of the Securities at
the office of Xxxxxxxx & Co. Inc., Equitable Center, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, at 9:30 A.M., New York City time, on __________ ___, 1998, 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 for the 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. 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.
5. The Company and the Subsidiary Guarantors covenant and agree
with the Underwriter:
(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
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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 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 and the Subsidiary Guarantors 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 Underwriter and counsel for
the Underwriter, 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,
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 and the Subsidiary
Guarantors 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 you 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 security holders
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
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 security holders 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 security holders, 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 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 they will not, and will cause their, 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 Amended and Restated 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; and
(k) That they will not, during the period beginning on
the date of this Agreement and continuing until the Time of Delivery,
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company or the Subsidiary Guarantors without the
prior written consent of the Underwriter.
6. The Company and the Subsidiary Guarantors covenant and agree
with the Underwriter that the Company and the Subsidiary Guarantors will pay
or cause to be paid: (i) the fees, disbursements and expenses of counsel and
accountants for the Company and the Subsidiary Guarantors, and all other
expenses, in connection with the preparation, printing and filing of the
Registration Statement and the Prospectus and amendments and supplements
thereto and the 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 Underwriter and
dealers; (ii) the cost of printing this Agreement, the Indenture, the Pledge
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Agreement, the Selling Agreement, communications with the 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 Underwriter 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; and (v) 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 transfer taxes on sale of the Securities to the
Underwriter, the cost of the Company's personnel and other internal costs, the
cost of printing and engraving the certificates representing the Securities and
all expenses and taxes incident to the sale and delivery of the Securities to
be sold by the Company and the Subsidiary Guarantors to the Underwriter
hereunder. It is understood, however, that, except as provided in this
Section, Section 8 and Section 10 hereof, the Underwriter will pay all its own
costs and expenses, including the fees of its counsel, stock transfer taxes on
resale of any of the Securities by it, and any advertising expenses connected
with any offers it may make.
7. The obligations of the Underwriter hereunder shall be subject,
in its discretion, to the condition that all representations and warranties and
other statements of the Company and the Subsidiary Guarantors herein are, at
and as of the Time of Delivery, true and correct, the condition that the
Company and the Subsidiary Guarantors shall have performed all their
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 Subsidiary
Guarantors 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 Underwriter, and Xxxxx & Xxxxx,
L.L.P. shall have been timely furnished with such papers and
information as they may reasonably have requested to enable them to
pass upon the matters referred to in this subsection;
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(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 Subsidiary Guarantors, 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 (including
the Subsidiary Guarantors) 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 (including the
Subsidiary Guarantors) 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 to Xxxxxx
pursuant to the terms of the EAE Pledge Agreement; and neither
the Company nor any of its subsidiaries has granted any
outstanding options, warrants or commitments with respect to
any shares of its
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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 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; and 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;
(v) The Securities have been duly authorized by
the Company for issuance and sale to the Underwriter pursuant
to this Agreement and are in the form contemplated by the
Indenture, and, when executed, authenticated and delivered in
the manner provided for in the Indenture against payment of
the consideration therefor in accordance with this Agreement,
will be valid and legally binding obligations of the Company,
enforceable in accordance with their terms and the terms of
the Indenture and will be entitled to the benefits of the
Indenture, except insofar as may be limited by any bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general principles
of equity (regardless of whether such enforcement is
considered in a proceeding at law or in equity);
(vi) The Subsidiary Guarantees have been duly and
validly authorized by each of the Subsidiary Guarantors, and
when the Subsidiary Guarantees are issued and authenticated
and delivered for value as contemplated by this Agreement and
the Indenture, each such Subsidiary Guarantee will be a valid
and binding obligation of the respective Subsidiary Guarantor,
enforceable against each such Subsidiary Guarantor in
accordance with its terms, except as such enforcement may be
limited by any bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally and general principles of equity (regardless of
whether such enforcement is considered in a proceeding at law
or in equity); and the Subsidiary Guarantee does not violate
any law applicable to the Subsidiary Guarantee or the offering
and issuance of the Securities and the Subsidiary Guarantee;
(vii) 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
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aggregate, is of a character required to be disclosed in the
Prospectus which has not been properly disclosed therein;
(viii) This Agreement has been duly authorized,
executed and delivered by the Company and each of the
Subsidiary Guarantors;
(ix) The Indenture (a) has been duly and validly
authorized, executed and delivered by the Company and each of
the Subsidiary Guarantors, (b) constitutes a valid and legally
binding obligation of the Company and each of the Subsidiary
Guarantors, enforceable in accordance with its terms, except
insofar as enforcement may be limited by any bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general principles
of equity (regardless of whether such enforcement is
considered in a proceeding at law or in equity) and (c) is
duly qualified under the 1939 Act and the 1939 Act
Regulations;
(x) The Pledge Agreement has been duly and
validly authorized, executed and delivered by the Company and
constitutes a valid and legally binding obligation of the
Company enforceable in accordance with its terms, except
insofar as enforcement may be limited by any bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general principles
of equity (regardless of whether such enforcement is
considered in a proceeding at law or in equity);
(xi) The Acquisition Agreement has been duly
authorized, executed and delivered by the Company and EAE
Services and is a legal, valid and binding obligation of the
Company and EAE Services 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 and general
principles of equity (regardless of whether such enforcement is
considered in a proceeding at law or in equity);
(xii) 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 may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and general
principles of equity (regardless of whether such enforcement
is considered in a proceeding at law or in equity);
(xiii) The Company and the Subsidiary Guarantors
have full corporate power and authority to execute, deliver
and perform this Agreement, the Indenture
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and the Pledge Agreement, and the execution, delivery and
performance of this Agreement, the Indenture and the Pledge
Agreement, the consummation of the transactions herein and
therein contemplated and the issue and sale of the Securities
and the compliance by the Company with all the provisions of
this Agreement, the Indenture and the Pledge 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 the
Subsidiary Guarantors 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 the Subsidiary Guarantors is a
party or by which the Company or any of the Subsidiary
Guarantors is bound or to which any of the property or assets
of the Company or any of the Subsidiary Guarantors 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 the
Subsidiary Guarantors, 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
the Subsidiary Guarantors or any of their properties;
(xiv) 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;
(xv) 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, the
Indenture or the Pledge Agreement, except such as have been
obtained under the Act and the 1939 Act and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state or foreign securities or Blue Sky
laws in connection with the purchase and distribution of the
Securities by the Underwriter, provided that such
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counsel shall not be required to express any opinion as to the
requirements of state securities or blue sky laws;
(xvi) 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;
(xvii) 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;
(xviii) 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;
(xix) 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 Services, 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;
(xx) 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);
(xxi) 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 to the
Company's Certificate of Incorporation or Bylaws, in each case
as amended to
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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;
(xxii) 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;
(xxiii) The statements under the captions "Risk
Factors -- Impact of Environmental Laws", "Risk Factors --
Legislative Proposals to Rescind Provisions of Xxxxx Act",
"Business -- Environmental Regulation", Business -- Other
Regulation", "Business -- Legal Proceedings" and "Description
of Notes" 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;
(xxiv) 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;
(xxv) 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;
(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 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 (a) as to the financial
statements and schedules or
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other financial data contained in the Registration Statement
or the Prospectus and (b) as to that part of the Registration
Statement that constitutes the Statement of Eligibility and
Qualification of the Trustee on Form T-1 (the "Form T-1");
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 and the
Form T-1 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 (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 opinion 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 Underwriter 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, the laws of the State of
New York 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
(xxiii) above.
(e) Xxxxx & Xxxxx, L.L.P., counsel to the Underwriter,
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;
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(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;
(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
Underwriter, of the Company and its subsidiaries on
a consolidated basis, each as compared with the
amounts shown on the September 30, 1997 Consolidated
Balance
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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 Underwriter, 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 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
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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 Underwriter, impracticable to
proceed with completion of the sale of and payment for the Securities
and no event shall have occurred resulting in (i) trading in
securities generally on the New York Stock Exchange being suspended or
limited or minimum or maximum prices being generally established on
such exchange, 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 any
securities of the Company on the principal securities exchange or
market in which such securities are 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 and the Subsidiary Guarantors, satisfactory to you as to
such matters as you may reasonably request and as to (i) the accuracy
of the Company's and the Subsidiary Guarantors' representations and
warranties herein at and as of the Time of Delivery; (ii) the
performance by the Company and the Subsidiary Guarantors of all their
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
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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) 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; and
(k) Prior to or currently with the sale of Securities at
the Time of Delivery, the closing of the Xxxxxxxxx Acquisition shall
occur on the basis set forth in the Prospectus.
8. (a) The Company and each Subsidiary Guarantor, jointly
and severally, will indemnify and hold harmless the Underwriter
against any losses, claims, damages or liabilities, joint or several,
to which the 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 or any of
the Subsidiary Guarantors specifically for that purpose or based upon
written information furnished by the Company or any of the Subsidiary
Guarantors 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 Company
or any of the Subsidiary Guarantors in Section 1(a) of this Agreement,
or (iii) the employment by the Company or any of the Subsidiary
Guarantors of any device, scheme or artifice to defraud, or the
engaging by the Company or any of the Subsidiary Guarantors 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 or any of the Subsidiary Guarantors shall participate, in
connection with the issuance and sale of any of the Securities, and
will reimburse the Underwriter for any legal or other expenses
reasonably incurred by the 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 and the Subsidiary Guarantors
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 the 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 the Underwriter 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 the Underwriter (or any
persons controlling the Underwriter) on account of any losses, claims,
damages, liability or litigation arising from the sale of Securities
to any person, if the 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
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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 and
the Subsidiary Guarantors under Section 8(a), the Company and each of
the Subsidiary Guarantors agree 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 Underwriter 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 and the Subsidiary Guarantors may
otherwise have and shall extend upon the same terms and conditions to
each person, if any, who controls the Underwriter within the meaning
of the Act or the Exchange Act.
(c) The Underwriter shall indemnify and hold harmless
the Company and the Subsidiary Guarantors and each of their officers,
employees and directors against any losses, claims, damages or
liabilities to which the Company or the Subsidiary Guarantors or any
such officer, employee or director 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 the Underwriter relating to the Underwriter expressly
for use therein, and will reimburse the Company or any of the
Subsidiary Guarantors for any legal or other expenses reasonably
incurred by the Company or any of the Subsidiary Guarantors in
connection with investigating or defending any such action or claim.
The indemnity agreement in this Section 8(c) shall be in
addition to any liability which the Underwriter 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.
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(d) Promptly after receipt by an indemnified party under
Section 8(a) or 8(c) 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) or 8(c)
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) or 8(c). 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 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 Section 8(a)
by the Company in the case of parties indemnified pursuant to Section
8(c).
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 Section 8(b), 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
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settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding.
(e) In order to provide for just and equitable
contribution under the Act in any case in which (i) the Underwriter
(or any person who controls the Underwriter within the meaning of the
Act or the Exchange Act) makes claim for indemnification pursuant to
Section 8(a) 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) provides for
indemnification in such case or (ii) contribution under the Act may be
required on the part of the Underwriter or any such controlling person
in circumstances for which indemnification is provided under Section
8(c), 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 the
Subsidiary Guarantors on the one hand and the Underwriter on the other
from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under Section 8(d) 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 Subsidiary
Guarantors on the one hand and the Underwriter 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 and the Subsidiary
Guarantors on the one hand and the Underwriter 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 bear to the total
underwriting discounts and commissions received by the Underwriter
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 and the Subsidiary
Guarantors on the one hand or the Underwriter 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 Subsidiary Guarantors and the Underwriter agree that it
would not be just and equitable if contributions pursuant to this
Section 8(e) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Section 8(e). 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(e) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or
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31
defending any such action or claim. Notwithstanding the provisions of
this Section 8(e), the Underwriter shall not 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 the
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission. 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.
(f) 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 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. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Subsidiary Guarantors and
the Underwriter, 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 the Underwriter or any controlling person of
the Underwriter, or the Company, or the Subsidiary Guarantors, or any officer
or director or controlling person of the Company or the Subsidiary Guarantors
and shall survive delivery of and payment for the Securities.
10. 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 you 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 the Underwriter 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 shall have given
notice to the Company that you 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.
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If this Agreement, by election of you or the Underwriters, shall not
become effective pursuant to the provisions of this Section, the Company and
the Subsidiary Guarantors shall not then be under any liability to the
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 and the Subsidiary Guarantors as
provided herein because the Company and the Subsidiary Guarantors have been
unable for any reason beyond their control and not due to any default by them
to comply with the terms and conditions hereof, the Company and the Subsidiary
Guarantors will reimburse the Underwriter for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred by the
Underwriter in making preparations for the purchase, sale and delivery of the
Securities, but the Company and the Subsidiary Guarantors shall then be under
no further liability to the Underwriter except as provided in Section 6 and
Section 8 hereof.
11. 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 and the third and sixth paragraphs
under the caption "Underwriting" in the Prospectus constitute the only
information furnished by the Underwriter.
12. All statements, requests, notices and agreements hereunder,
unless otherwise specified in this Agreement, shall be in writing and, if to
the Underwriter, shall be delivered or sent by mail, telex or facsimile
transmission (with confirmation of receipt) to you at Xxxxxxxx & Co. Inc.,
Equitable Center, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Syndicate Department; if to the Company or any of the Subsidiary Guarantors,
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. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriter, the Company, the Subsidiary Guarantors and, to the
extent provided in Section 8 and Section 9 hereof, the officers and directors
of the Company and the Subsidiary Guarantors and each person who controls the
Company, the Underwriter or any Subsidiary Guarantor, 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 the Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. 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.
15. 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.
16. 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
this letter and such acceptance hereof shall constitute a binding agreement
among the Underwriter, the Company and each of the Subsidiary Guarantors.
Very truly yours,
FIRST WAVE MARINE, INC.
By:
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Name:
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Title:
-------------------------------------
NEWPARK SHIPBUILDING AND REPAIR, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
EAE SERVICES, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
EAE INDUSTRIES, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
33
34
NEWPARK MARINE FABRICATORS, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
LOUISIANA SHIP, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Accepted as of the date hereof:
XXXXXXXX & CO. INC.
By:
------------------------------
Managing Director
34
