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EXHIBIT 1.3
MARINE DRILLING COMPANIES, INC.
DOCS(R) FINANCING PROGRAM
5,000,000 SHARES
(COMMON STOCK, $0.01 PAR VALUE)
SALES AGREEMENT
AUGUST 9, 2000
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THIS SALES AGREEMENT (the "Agreement") dated as of August 9, 2000
between RCG ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a division of Ramius Securities, LLC, having its
principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Sales
Manager") and Marine Drilling Companies, Inc., a corporation organized and
existing under the laws of the State of Texas (the "Company").
WHEREAS, the Company desires to issue and sell through the Sales
Manager up to 5,000,000 shares (the "Maximum Amount") of its common stock, par
value $0.01 per share (the "Stock"), on the terms set forth in Article II
hereof.
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company and the Sales Manager agree as follows:
ARTICLE 1
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
1.1 The Company represents and warrants to, and agrees with, the Sales
Manager that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
thereunder ("Rules and Regulations"). A registration statement on Form S-3
(Registration No. 333-56379) with respect to, among other securities, the Stock,
including a form of prospectus, has been prepared by the Company in conformity
with the requirements of the Act and the Rules and Regulations and filed with
the Securities and Exchange Commission (the "Commission") and has become
effective. Such registration statement and prospectus may have been amended or
supplemented prior to the date hereof. Any such amendment or supplement was so
prepared and filed, and any such amendment or supplement filed after the
effective date of such registration statement has become effective. No stop
order suspending the effectiveness of the registration statement has been
issued, and no proceeding for that purpose has been instituted or threatened by
the Commission. Copies of such registration statement and prospectus, any such
amendment or supplement and all documents incorporated by reference therein that
were filed with the Commission have been delivered to the Sales Manager. Such
registration statement, as it may have heretofore been amended, is referred to
herein as the "Registration Statement," and the final form of prospectus
included in the Registration Statement for purposes of offers and sales of the
Stock contemplated herein, as amended or supplemented from time to time, is
referred to herein as the "Prospectus." Any reference herein to the Registration
Statement, the Prospectus, or any amendment or supplement thereto shall be
deemed to refer to and include the documents incorporated (or deemed to be
incorporated) by reference therein, and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement
or Prospectus shall be deemed to refer to and include the filing after the
execution hereof of any document with the Commission deemed to be incorporated
by reference therein.
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(b) Each part of the Registration Statement, when such part became or
becomes effective, and the Prospectus and any amendment or supplement thereto,
on the date of filing thereof with the Commission and at each Settlement Date
(as hereinafter defined), conformed or will conform in all material respects
with the requirements of the Act and the Rules and Regulations; each part of the
Registration Statement, when such part became or becomes effective, did not or
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; and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at each
Settlement Date, did not or will not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
except that the foregoing shall not apply to statements in or omissions from any
such document in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Sales Manager, specifically for
use in the Registration Statement, the Prospectus or any amendment or supplement
thereto.
(c) The documents incorporated by reference in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, when they
became or become effective under the Act or were or are filed with the
Commission under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as the case may be, conformed or will conform in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder.
(d) The consolidated financial statements of the Company, together with
the related notes thereto, set forth or included or incorporated by reference in
the Registration Statement and Prospectus, fairly present in all material
respects the financial position of the Company and its subsidiaries as of the
dates indicated and the results of operations and cash flows for the periods
therein specified, in conformity with generally accepted accounting principles
or in the case of unaudited consolidated financial statements as permitted by
Form 10Q under the Exchange Act and the rules and regulations thereunder
consistently applied throughout the periods involved (except as otherwise stated
therein).
(e) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Texas. Other than as
listed on Schedule 1.1(a) hereto, and as disclosed in writing by the Company to
the Sales Manager from time to time, the Company has no subsidiary or
subsidiaries and does not control, directly or indirectly, any corporation,
partnership, limited liability company, joint venture, association or other
business organization. The Company is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the character or location of
its assets or properties (owned, leased or licensed) or the nature of its
business makes such qualification necessary, except for such jurisdictions where
the failure to so qualify would not reasonably be expected to have a material
adverse effect on the consolidated assets or properties, business, operations,
or condition (financial or otherwise) of the Company (a "Material Adverse
Effect"). Each of the Company's significant subsidiaries (as such term is
defined in Rule 1-02 of Regulation S-X under the Act) (the "Significant
Subsidiaries") is validly existing as a corporation in its respective
jurisdiction of formation. Other than as listed on Schedule 1.1(a) hereto, none
of the Company's subsidiaries is a Significant Subsidiary. All of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and
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(except as otherwise disclosed or incorporated by reference in the Registration
Statement and the Prospectus) is owned by the Company, directly or indirectly,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. The Company has all requisite corporate power and authority,
and all necessary authorizations, approvals, consents, orders, licenses,
certificates and permits of and from all governmental orders or regulatory
bodies or any other person or entity, to own, lease, license and operate its
assets and properties and conduct its business as now being conducted and as
described or incorporated by reference in the Registration Statement and the
Prospectus; except for such authorizations, approvals, consents, orders,
licenses, certificates and permits the absence of which would not reasonably be
expected to have a Material Adverse Effect; and no such authorization, approval,
consent, order, license, certificate or permit contains a materially burdensome
restriction other than as disclosed or incorporated by reference in the
Registration Statement and the Prospectus.
(f) Except as disclosed in the Registration Statement and the
Prospectus (A) each of the Company and its subsidiaries has full and exclusive
right, title and interest in and to, or license rights to, all proprietary
rights and processes, trade secrets, customer lists, methodologies (to the
extent protectible), proprietary development and marketing information and
know-how, and other confidential information (collectively, "Intellectual
Property") relating to their respective businesses or otherwise used in or
necessary for the proper conduct of their respective businesses and as described
or incorporated by reference in the Registration Statement and Prospectus, free
and clear of all liens, security interests, claims and encumbrances of any
nature; (B) neither the Company nor its subsidiaries has any obligation to any
other person or entity with respect to the Intellectual Property or any product
or process of the Company or any subsidiary utilizing or embodying any
Intellectual Property; and (C) no patents, trademarks or copyrights are material
to the business of the Company and its subsidiaries.
(g) Except as disclosed in the Registration Statement and the
Prospectus, the Company has good title to each of the items of personal property
which are reflected in the financial statements referred to in Section 1.1(d) or
are referred to in the Registration Statement and the Prospectus or any document
incorporated by reference therein as being owned by the Company, in each case
free and clear of all material liens, encumbrances, claims, security interests
and defects, other than those described in the Registration Statement and the
Prospectus and those which do not and will not reasonably be expected to have a
Material Adverse Effect. No material operating assets are held by the Company or
any subsidiary as lessee or licensee.
(h) Except as disclosed in the Registration Statement and the
Prospectus, the Company has good and marketable title to, or leasehold interests
in, all real properties and assets (including, without limitation, mortgaged
assets) described in the Registration Statement and the Prospectus or any
document incorporated by reference therein, as owned by the Company, free and
clear of all material liens, charges, encumbrances or restrictions, except such
as are described in the Registration Statement and the Prospectus or any
document incorporated by reference therein, or those which do not and will not
reasonably be expected to have a Material Adverse Effect; and has peaceful and
undisturbed possession under all material leases to which it is party as lessee.
(i) Except as disclosed in the Registration Statement and the
Prospectus, there is no litigation or governmental proceeding or investigation
before any court or before or by any
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public body or board pending or, to the knowledge of the Company, threatened
(and the Company does not know of any basis therefor) against, or involving the
assets, properties or businesses of the Company which would reasonably be
expected to have a Material Adverse Effect on the Company.
(j) Except as disclosed in the Registration Statement or the
Prospectus, or in any document incorporated therein, to the Company's knowledge;
(i) there has been no storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, hazardous wastes or
hazardous substances by the Company or any of its subsidiaries (or any of their
predecessors in interest) at, upon or from any of the property now or previously
owned or leased by the Company or its subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit
or which would require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not have or would not reasonably be expected to have
a Material Adverse Effect; (ii) there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any toxic wastes,
solid wastes, hazardous wastes or hazardous substances due to or caused by the
Company or any of its subsidiaries, except for any such spill, discharge, leak
emission, injection, escape, dumping or release which would not reasonably be
expected to have a Material Adverse Effect; and (iii) the terms "hazardous
wastes," "toxic wastes" and "hazardous substances" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(k) Other than as set forth in the Registration Statement and the
Prospectus, to the best of the Company's knowledge, the Company maintains
insurance consistent with insurance coverage maintained by similar companies in
similar businesses, and covering risks customarily insured against, all of which
insurance is in full force and effect.
(l) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as described therein,
(i) there has not been any change in the assets or properties, capital stock,
business, results of operations, or condition (financial or otherwise) of the
Company, whether or not arising from transactions in the ordinary course of
business that would reasonably be expected to have a Material Adverse Effect;
(ii) the Company has not sustained any material loss or interference with its
assets, businesses or properties (whether owned or leased) from fire, explosion,
earthquake, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or any court or legislative or other governmental action,
order or decree that would reasonably be expected to have a Material Adverse
Effect; (iii) since the date of the latest balance sheet, included or
incorporated by reference in the Registration Statement and the Prospectus,
except as reflected therein, the Company has not undertaken any liability or
obligation, direct or contingent, except such liabilities or obligations
undertaken in the ordinary course of business; (iv) the Company has not entered
into any transaction that is material to the Company, except transactions in the
ordinary course of business or as otherwise disclosed in the Registration
Statement and the Prospectus; and (v) the Company has not declared or paid any
dividend or made any distribution on any shares of its capital stock or
redeemed, purchased or otherwise acquired or agreed to redeem, purchase or
otherwise acquire any shares of its capital stock.
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(m) There is no document or contract of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required. No default exists, and no event has occurred and is continuing 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, by the Company of
any material agreement or instrument to which the Company is a party or by which
it or its properties or business may be bound or affected, which default or
event would reasonably be expected to have a Material Adverse Effect.
(n) The Company is not in violation of any term or provision of its
charter or by-laws; or of any franchise, license, permit, judgment, decree,
order, statute, rule or regulation, where the consequences of such violation
would reasonably be expected to have a Material Adverse Effect.
(o) Neither the execution, delivery and performance of this Agreement
by the Company nor the consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and sale by the Company of
the Stock) will give rise to a right to terminate or accelerate the due date of
any payment due under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or an event which with notice or lapse of
time or both would constitute a default) under, or require any consent or waiver
under, or result in the right to the execution or imposition of any lien,
charge, encumbrance, claim, security interest, restriction or defect upon any
properties or assets of the Company pursuant to the terms of, any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company is
a party or by which either is bound, or any of its properties or businesses are
bound, or any franchise, license, permit, judgment, decree, order, statute, rule
or regulation applicable to the Company which default would reasonably be
expected to have a Material Adverse Effect, except for such consents or waivers
that have been obtained; or violate any provision of the charter or by-laws of
the Company; no consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the issue and sale of
the Stock and the consummation by the Company of the transactions contemplated
by this Agreement, except registration of the Stock under the Act and except
such as may be required by state securities or blue sky laws.
(p) All of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and nonassessable and
none of the shares were issued in violation of any preemptive or other similar
right. The Stock, when issued and sold pursuant to this Agreement, will be duly
authorized and validly issued, fully paid and nonassessable and will not be
issued in violation of any preemptive or other similar right. Except as
disclosed in the Registration Statement and the Prospectus, there is no
outstanding option, warrant or other right calling for the issuance of any
capital stock of the Company or any security convertible into or exercisable or
exchangeable for, such capital stock. The common stock of the Company and the
Stock conform in all material respects to all statements relating thereto
contained in the Registration Statement and the Prospectus.
(q) No holder of any security of the Company has the right, which has
not been waived, to have any security owned by such holder included in the
Registration Statement or any right to demand registration of any security owned
by such holder.
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(r) All necessary corporate action has been duly and validly taken by
the Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Stock by the Company. This Agreement
has been duly and validly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles (whether applied in a proceeding in law or
equity). The Company's common stock is included for quotation on the Trading
Market. For purposes of this Agreement, the "Trading Market" is (i) the New York
Stock Exchange, Inc., or the American Stock Exchange or (ii) the facilities of
The Nasdaq Stock Market ("Nasdaq").
(s) The Company has not incurred any liability for a fee, commission or
other compensation on account of the employment of a broker or finder in
connection with the transactions contemplated by this Agreement other than as
contemplated hereby or as described in the Registration Statement.
(t) Except as disclosed in the Registration Statement and the
Prospectus, the Company is not involved in any labor dispute nor, to the
knowledge of the Company, is any such dispute threatened, which dispute would
reasonably be expected to have a Material Adverse Effect.
(u) Other than as set forth in the Registration Statement and the
Prospectus, to the best of the Company's knowledge, the Company is conducting
its business in compliance with all applicable laws, rules and regulations of
the jurisdictions in which it is conducting business, including, without
limitation, the Americans with Disabilities Act of 1990 and all applicable
local, state and federal employment, truth-in-advertising, franchising and
immigration laws and regulations, except where the failure to be so in
compliance would reasonably be expected to not have a Material Adverse Effect.
(v) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
ARTICLE 2
SALE AND DELIVERY OF SECURITIES
2.1 (a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell through the Sales Manager, subject to Section
3.1(i), as exclusive agent, and the Sales Manager agrees to sell, as agent for
the Company, on a best efforts basis, up to the Maximum Amount of the Stock
during the term of this Agreement on the terms set forth herein. The Stock will
be sold from time to time in amounts and at prices as directed by the Company
and as agreed to by the Sales Manager.
(b) The Stock, up to the Maximum Amount, is to be sold on a daily basis
or otherwise as shall be agreed to by the Company and the Sales Manager. The
Company will designate the
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maximum amount of Stock to be sold by the Sales Manager on a daily or other
basis as reasonably agreed to by the Sales Manager and in any event not in
excess of the amount available for issuance under the currently effective
Registration Statement. Subject to the terms and conditions hereof, the Sales
Manager shall use its reasonable efforts to sell all of the designated Stock up
to the Maximum Amount. The Sales Agent shall sell the Stock only by means of
ordinary brokers' transactions on the Trading Market.
(c) The Company or the Sales Manager may, upon notice to the other
party hereto by telephone (confirmed promptly by telecopy), at any time and from
time to time suspend the offering of Stock; provided, however, that such
suspension or termination shall not affect or impair the parties' respective
obligations with respect to shares of Stock sold hereunder prior to the giving
of such notice. The Company may also instruct the Sales Manager by telephone
(confirmed promptly by telecopy) not to sell Stock if such sales cannot be
effected at or above the price designated by the Company in such instruction.
Notwithstanding the foregoing, under no circumstances shall the amount of Stock
sold pursuant to this Agreement exceed the Maximum Amount or the number of
shares of Common Stock available for issuance under the currently effective
Registration Statement.
(d) The compensation to the Sales Manager for sales of Stock shall be
at a fixed commission rate of 3% of the gross sales price per share for the
Stock sold under this Agreement. The remaining proceeds, after further deduction
for any transaction fees imposed by any governmental of self-regulatory
organization in respect to such sale shall constitute the net proceeds to the
Company for such Stock (the "Net Proceeds").
(e) Following the close of trading on the Trading Market each day in
which Stock is sold under this Agreement, the Sales Manager shall effect the
delivery to the Company of a customary written confirmation setting forth the
amount of Stock sold on such day, the gross sales proceeds, the compensation
payable by the Company to the Sales Manager with respect to such sales, and any
transaction fees imposed by any governmental or self-regulatory organization in
respect to such sales.
(f) The Net Proceeds from the sale of the Stock shall be deposited to
an account designated by the Company on the third business day (or such other
day as is industry practice for regular-way trading) following each sale of the
Stock (each, a "Settlement Date"). The Company shall effect the delivery of the
applicable number of shares of Stock to an account designated by the Sales
Manager at The Depository Trust Company on or before the Settlement Date of each
sale hereunder. The Sales Manager's compensation shall be withheld from the
sales proceeds on each Settlement Date and shall be paid to the Sales Manager.
(g) At each Settlement Date, the Company shall be deemed to have
affirmed each representation, warranty, covenant and other agreement contained
in this Agreement. Any obligation of the Sales Manager under this Agreement
shall be subject to the continuing accuracy of the representations and
warranties of the Company herein, to the performance by the Company of its
obligations hereunder and to the continuing satisfaction of the additional
conditions specified in Article IV of this Agreement.
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(h) If the Company shall default on its obligation to deliver Stock on
any Settlement Date, the Company shall (i) hold the Sales Manager harmless
against any loss, claim or damage arising from or as a result of such default by
the Company and (ii) pay the Sales Manager any commission to which it would
otherwise be entitled absent such default. In addition to any damages to which
the Company is entitled, if the Sales Manager fails to deliver proceeds on any
Settlement Date for Stock delivered by the Company, the Sales Agent will pay the
Company interest based upon the effective overnight Federal Funds rate.
(i) The Company and the Sales Manager agree that all sales of Stock
pursuant to this Agreement will be made in conformity with the provisions of
Regulation M under the Exchange Act.
ARTICLE 3
COVENANTS OF THE COMPANY
3.1 The Company covenants and agrees with the Sales Manager that:
(a) As promptly as practicable after the date of this Agreement, the
Company will file a post-effective amendment to the Registration Statement to
permit sales of the Stock under the Act. The Company will use its best efforts
to cause such post-effective amendment to the Registration Statement to become
effective as promptly as possible thereafter.
(b) During the period in which a prospectus relating to the Stock is
required to be delivered under the Act, the Company will notify the Sales
Manager promptly of the time when any subsequent amendment to the Registration
Statement has become effective or any subsequent supplement to the Prospectus
has been filed and of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for additional
information; the Company will prepare and file with the Commission, promptly
upon the Sales Manager's request, any amendments or supplements to the
Registration Statement or Prospectus that, in the Sales Manager's reasonable
opinion, may be necessary or advisable in connection with the sale of the Stock
pursuant to this Agreement; the Company will not file any amendment or
supplement to the Registration Statement or Prospectus (other than any
prospectus supplement relating to the offering of other securities including,
without limitation, common stock other than pursuant to the Agreement,
registered under the Registration Statement) unless a copy thereof has been
submitted to the Sales Manager a reasonable period of time before the filing and
the Sales Manager has not reasonably objected thereto; and it will furnish to
the Sales Manager at the time of filing thereof a copy of any document that upon
filing is deemed to be incorporated by reference in the Registration Statement
or Prospectus; and the Company will cause each amendment or supplement to the
Prospectus to be filed with the Commission as required pursuant to the
applicable paragraph of Rule 424(b) of the Rules and Regulations or, in the case
of any documents to be incorporated therein by reference, to be filed with the
Commission as required pursuant to the Exchange Act, within the time period
prescribed.
(c) The Company will advise the Sales Manager, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the
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effectiveness of the Registration Statement, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceeding for any such purpose; and it will
promptly use its best efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such a stop order should be issued.
(d) Within the time during which a prospectus relating to the Stock is
required to be delivered under the Act, the Company will comply with all
requirements imposed upon it by the Act and by the Rules and Regulations, as
from time to time in force, so far as necessary to permit the continuance of
sales of or dealings in the Stock as contemplated by the provisions hereof and
the Prospectus. If during such period any event occurs 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 a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend or supplement the
Registration Statement or Prospectus to comply with the Act, the Company will
promptly notify the Sales Manager to suspend the offering of Stock during such
period and the Company will amend or supplement the Registration Statement or
Prospectus (at the expense of the Company unless the misstatements or omissions
in question were made in reliance upon written information furnished to the
Company by the Sales Manager expressly for use in the Registration Statement or
Prospectus in which case such amendment or supplement shall be at the expense of
the Sales Manager) so as to correct such statement or omission or effect such
compliance and will use its best efforts to have any amendment to the
Registration Statement declared effective as soon as possible, unless the
Company has reasonable business reasons to defer public disclosure of the
relevant information.
(e) The Company will use its best efforts to qualify the Stock for sale
under the securities laws of such jurisdictions as the Sales Manager reasonably
designates and to continue such qualifications in effect so long as required for
the sale of the Stock, except that the Company shall not be required in
connection therewith to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction.
(f) The Company will furnish to the Sales Manager and its counsel (at
the expense of the Company) copies of the Registration Statement, the Prospectus
(including all documents incorporated by reference therein) and all amendments
and supplements to the Registration Statement or Prospectus that are filed with
the Commission during the period in which a prospectus relating to the Stock is
required to be delivered under the Act (including all documents filed with the
Commission during such period that are deemed to be incorporated by reference
therein), in each case as soon as available and in such quantities as the Sales
Manager may from time to time reasonably request and the Company will also
furnish copies of the Prospectus to such exchange in accordance with Rule 153 of
the Rules and Regulations.
(g) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than 15 months after the end
of the Company's current fiscal quarter, an earnings statement (which need not
be audited) covering a 12-month period that satisfies the provisions of Section
11(a) of the Act and Rule 158 of the Rules and Regulations.
(h) The Company, whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, will pay all of its expenses
incident to the
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performance of its obligations hereunder (including, but not limited to, any
transaction fees imposed by any governmental or self-regulatory organization
with respect to transactions contemplated by this Agreement and any blue sky
fees) and will pay the expenses of printing all documents relating to the
offering. The Company will reimburse the Sales Manager for its reasonable
out-of-pocket costs and expenses incurred in connection with entering into this
Agreement, including, without limitation, reasonable travel, reproduction,
printing and similar expenses, as well as the reasonable fees and disbursements
of its external legal counsel.
(i) The Company will apply the Net Proceeds from the sale of the Stock
as set forth in the Prospectus.
(j) The Company will not, directly or indirectly, offer or sell any
shares of common stock (other than the Stock) or securities convertible into or
exchangeable for, or any rights to purchase or acquire, common stock during the
period from the date of this Agreement through the final Settlement Date for the
sale of Stock hereunder without (i) giving the Sales Manager at least three
business days' prior written notice specifying the nature of the proposed sale
and the date of such proposed sale and (ii) suspending activity under this
program for such period of time as may reasonably be determined by agreement of
the Company and the Sales Manager; provided, however, that no such notice and
suspension shall be required in connection with the Company's issuance or sale
of (i) shares of common stock, options to purchase shares of common stock, or
common stock issuable upon the exercise of options pursuant to any employee or
director stock option or benefits plan, stock ownership plan, or dividend
reinvestment plan, (ii) common stock issuable upon conversion of securities or
the exercise of warrants, options or other rights in effect or outstanding on
the date hereof, and (iii) issuance of shares of common stock (including,
without limitation, rights) pursuant to the Rights Agreement between the Company
and American Stock Transfer & Trust Company dated November 15, 1996, or the
issuance of shares of capital stock upon the exercise of rights pursuant
thereto.
(k) The Company will, at any time during the term of this Agreement, as
supplemented from time to time, advise the Sales Manager immediately after it
shall have received notice or obtain knowledge thereof, of any information or
fact that would alter or affect any opinion, certificate, letter and other
document provided to the Sales Manager pursuant to Article IV herein.
(l) Each time that (i) the Registration Statement or the Prospectus
shall be amended or supplemented or (ii) there is filed with the Commission any
document incorporated by reference into the Prospectus (other than any Quarterly
Report on Form 10-Q or a Current Report on Form 8-K, unless the Sales Manager
shall otherwise request), the Company shall furnish or cause to be furnished to
the Sales Manager forthwith a certificate dated the date of filing with the
Commission of such amendment, supplement or other document, the date of
effectiveness of amendment, as the case may be, in form reasonably satisfactory
to the Sales Manager to the effect that the statements contained in the
certificate referred to in Sections 4.1(f) hereof that were last furnished to
the Sales Manager are true and correct at the time of such amendment, supplement
or filing, as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such time) or, in lieu of such
certificates, certificates of the same tenor as the certificates referred to in
said Sections 4.1(f), modified as necessary to relate to the
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Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(m) Each time that (i) the Registration Statement or the Prospectus is
amended or supplemented or (ii) there is filed with the Commission any document
incorporated by reference into the Prospectus (other than any Quarterly Report
on Form 10-Q or a Current Report on Form 8-K, unless the Sales Manager shall
otherwise reasonably request), the Company (unless the Company is not then
selling Stock through the Sales Manager and has not requested the Sales Manager
to sell stock) shall furnish or cause to be furnished forthwith to the Sales
Manager and to counsel to the Sales Manager a written opinion of ▇▇▇▇▇▇ &
▇▇▇▇▇▇, LLP, counsel to the Company ("Company Counsel"), or other counsel
reasonably satisfactory to the Sales Manager, dated the date of filing with the
Commission of such amendment, supplement or other document and the date of
effectiveness of such amendment, as the case may be, in form and substance
reasonably satisfactory to the Sales Manager, of the same tenor as the opinion
referred to in Section 4.1(d) hereof, but modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion. If an opinion is requested by the Sales
Manager at a time when it is neither selling Stock nor been requested to sell
Stock pursuant to this Agreement, the opinion shall be prepared and the Sales
Manager shall reimburse the Company for the reasonable charges of Company
Counsel in preparing such opinion.
(n) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented to include additional amended financial information
or there is filed with the Commission any document incorporated by reference
into the Prospectus which contains additional amended financial information, the
Company (unless the Company is not then selling Stock through the Sales Manager
and has not requested the Sales Manager to sell stock) shall cause KPMG, LLP, or
other independent accountants reasonably satisfactory to the Sales Manager,
forthwith to furnish to the Sales Manager a letter, dated the date of
effectiveness of such amendment, or the date of filing of such supplement or
other document with the Commission, as the case may be, in form reasonably
satisfactory to the Sales Manager, of the same tenor as the letter referred to
in Section 4.1(e) hereof but modified to relate to the Registration Statement
and the Prospectus, as amended and supplemented to the date of such letter. The
letter shall be prepared at the cost of the Company. If a letter is requested by
the Sales Manager at a time when it is neither selling Stock nor been requested
to sell Stock pursuant to this Agreement, the letter shall be prepared and the
Sales Manager shall reimburse the Company for the reasonable charges of KPMG in
preparing such letter.
(o) The Company shall use its best efforts to list, subject to notice
of issuance, the Stock on the applicable Trading Market.
(p) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of the
common stock of the Company to facilitate the sale or resale of any of the
Stock.
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ARTICLE 4
CONDITIONS OF THE SALES MANAGER'S OBLIGATIONS
4.1 The obligations of the Sales Manager to sell the Stock as provided
herein shall be subject to the accuracy, as of the date hereof, and as of each
Settlement Date contemplated under this Agreement, of the representations and
warranties of the Company herein, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) The post-effective amendment to the Registration Statement
contemplated by Section 3.1(a) shall have been declared effective. No stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been instituted and be
continuing or, to the knowledge of the Company or the Sales Manager, threatened
by the Commission, and any request of the Commission for additional information
(to be included in the Registration Statement or the Prospectus or otherwise)
shall have been complied with.
(b) The Sales Manager shall not have advised the Company that the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact that in the Sales Manager's
reasonable opinion is material, or omits to state a fact that in the Sales
Manager's reasonable opinion is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there shall not have been any material change, on a
consolidated basis, in the capital stock of the Company, or any change, or any
development that would reasonably be expected to cause a Material Adverse
Effect.
(d) The Sales Manager shall have received at the date of the first sale
(the trade date) of Stock hereunder (the "Commencement Date") and at every other
date specified in Section 3.1(m) hereof, opinions of Company Counsel, dated as
of the first Commencement Date and dated as of such other date, respectively, to
the effect substantially set forth in Exhibit A hereto, and in form reasonably
acceptable to the Sales Manager.
(e) At the Commencement Date and at such other dates specified in
Section 3.1(n) hereof, the Sales Manager shall have received a letter from KPMG,
LLP, independent public accountants for the Company, or other independent
accountants satisfactory to the Sales Manager, dated the date of delivery
thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a
certificate, or certificates, signed by the Chairman of the Board, the President
or a Vice President and by the principal financial or accounting officer of the
Company, dated as of the Commencement Date and dated as of the first business
day of each calendar month thereafter (each, a "Certificate Date"), to the
effect that, to the best of their knowledge based upon reasonable investigation:
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(i) The representations and warranties of the Company in this
Agreement are true and correct, as if made at and as of the Commencement
Date or the Certificate Date (as the case may be), and the Company has
complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Commencement Date and
each such Certificate Date (as the case may be);
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceeding for that purpose has been
instituted or, to the knowledge of such officer is threatened, by the
Commission;
(iii) Since the date of this Agreement there has occurred no event
required to be set forth in an amendment or supplement to the Registration
Statement or Prospectus that has not been so set forth and there has been
no document required to be filed under the Exchange Act and the rules and
regulations of the Commission thereunder that upon such filing would be
deemed to be incorporated by reference in the Prospectus that has not been
so filed; and
(iv) Since the date of this Agreement, there has not been any change
in the assets or properties, business, results of operations, or condition
(financial or otherwise) of the Company, which would reasonably be expected
to cause a Material Adverse Effect and which has not been described in an
amendment or supplement to the Registration Statement or Prospectus
(directly or by incorporation).
In addition, on each Certificate Date the certificate shall also
reconfirm that the shares of Stock sold during the immediately preceding month
were duly authorized and validly issued.
(g) At the Commencement Date and on each Settlement Date, the Company
shall have furnished to the Sales Manager such appropriate further information,
certificates and documents as the Sales Manager may reasonably request.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Sales Manager. The Company will furnish the Sales
Manager with such conformed copies of such opinions, certificates, letters and
other documents as the Sales Manager shall reasonably request.
ARTICLE 5
INDEMNIFICATION AND CONTRIBUTION
5.1 (a) The Company agrees to indemnify and hold harmless the Sales
Manager and each person, if any, who controls the Sales Manager within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
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alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against all reasonable out of pocket expense, as incurred
(including, subject to Section 5(c) hereof, the reasonable fees and
disbursements of external counsel chosen by the Sales Manager), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Sales Manager expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) The Sales Manager agrees to indemnify and hold harmless the
Company, its directors and each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in Section 5.1(a), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendments thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the Sales
Manager expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Any indemnified party that proposes to assert the right to be
indemnified under this Article V will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Article V, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party
will not relieve the indemnifying party from any liability that it might have to
any indemnified party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent
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that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel satisfactory to the indemnified party,
and after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the named parties
to any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party, and the indemnified party shall
have been advised by counsel selected by the indemnifying party that there may
be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party and that, as a matter of
professional responsibility, such counsel is unable to represent both the
indemnifying and indemnified party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party); (3) a conflict or potential conflict exists (based on advice
of counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the indemnified party) or (4)
the indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction at any one time for
all such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent will not be
unreasonably withheld). No indemnifying party shall, without the prior written
consent of each indemnified party, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action or proceeding
relating to the matters contemplated by this Article 5 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising or that may arise out of such claim, action or proceeding.
Notwithstanding any other provision of this Section 5(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, such indemnifying party
agrees that it shall be liable for any settlement effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement; provided that an indemnifying
party shall not be liable for any such settlement effected without its consent
if such indemnifying party, prior to the date of such settlement, (1)
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reimburses such indemnified party in accordance with such request for the amount
of such fees and expenses of counsel as the indemnifying party believes in good
faith to be reasonable and (2) provides written notice to the indemnified party
that the indemnifying party disputes in good faith the reasonableness of the
unpaid balance of such fees and expenses.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Article V is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Sales Manager, the
Company and the Sales Manager will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than the
Sales Manager, such as persons who control the Company within the meaning of the
Act, officers of the Company who signed the Registration Statement and directors
of the Company, who also may be liable for contribution) to which the Company
and the Sales Manager may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the
Sales Manager on the other. The relative benefits received by the Company on the
one hand and the Sales Manager on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total compensation (before
deducting expenses) received by the Sales Manager from the sale of Stock on
behalf of the Company. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the
relative benefits referred to in the foregoing sentence but also the relative
fault of the Company, on the one hand, and the Sales Manager, on the other, with
respect to the statements or omission which resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Sales Manager, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Sales Manager agree that it would not be just and equitable if contributions
pursuant to this Section 5.1(d) were to be determined by pro rata allocation or
by any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 5.1(d) shall be deemed to
include, for the purpose of this Section 5.1(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the foregoing provisions
of this Section 5.1(d), the Sales Manager shall not be required to contribute
any amount in excess of the amount by which the total actual sales price at
which Stock sold by the Sales Manager exceeds the amount of any damages that the
Sales Manager has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and no person found
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) will be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 5.1(d), any
person who controls a party to this Agreement within the meaning of the Act will
have the same rights to contribution as that party, and each officer of the
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Company who signed the Registration Statement will have the same rights to
contribution as the Company, subject in each case to the provisions hereof. Any
party entitled to contribution, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution
may be made under this Section 5.1(d), will notify any such party or parties
from whom contribution may be sought, but the omission so to notify will not
relieve that party or parties from whom contribution may be sought from any
other obligation it or they may have under this Section 5.1(d). Except for
settlement entered into pursuant to the last sentence of Section 5(c) hereof, no
party will be liable for contribution with respect to any action or claim
settled without its written consent (which consent will not be unreasonably
withheld).
(e) The indemnity and contribution provided by this Article V shall not relieve
the Company and the Sales Manager from any liability the Company and the Sales
Manager may otherwise have (including, without limitation, any liability the
Sales Manager may have for a breach of its obligations under Article II hereof).
ARTICLE 6
REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY
6.1 All representations, warranties and agreements of the Company
herein or in certificates delivered pursuant hereto, and the agreements of the
Sales Manager contained in Article V hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Sales Manager or any controlling persons, or the Company (or any of their
officers, directors or controlling persons), and shall survive delivery of and
payment for the Stock.
ARTICLE 7
TERMINATION
7.1 The Sales Manager shall have the right by giving notice as
hereinafter specified at any time at or prior to any Settlement Date, to
terminate this Agreement if (i) any material change, or any development that has
actually occurred and that is reasonably expected to cause a Material Adverse
Effect, in the reasonable judgment of the Sales Manager, materially impairs the
investment quality of the Stock, (ii) the Company shall have failed, refused or
been unable, at or prior to any Settlement Date, to perform any material
agreement on its part to be performed hereunder, (iii) any other condition of
the Sales Manager's obligations hereunder is not fulfilled, (iv) any suspension
or limitation of trading in the Stock on the Trading Market, or any setting of
minimum prices for trading of the Stock on such Trading Market, shall have
occurred, (v) any banking moratorium shall have been declared by Federal or New
York authorities or (vi) an outbreak or material escalation of major hostilities
in which the United States is involved, a declaration of war by Congress, any
other substantial national or international calamity or any other event or
occurrence of a similar character shall have occurred since the execution of
this Agreement that, in the reasonable judgment of the Sales Manager, makes it
impractical or inadvisable to proceed with the completion of the sale of and
payment for the Stock to be sold by the Sales Manager on behalf of the Company.
Any such termination shall be without liability of
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any party to any other party except that the provisions of Section 3.1(h),
Article V and Article VI hereof shall remain in full force and effect
notwithstanding such termination. If the Sales Manager elects to terminate this
Agreement as provided in this Article, the Sales Manager shall provide the
required notice as specified herein.
7.2 The Company shall have the right, by giving notice as hereinafter
specified, to terminate this Agreement in its sole discretion at any time after
the first anniversary of the date of this Agreement. Any such termination shall
be without liability of any party to any other party except that the provisions
of Section 3.1(h), Article V and Article VI hereof shall remain in full force
and effect notwithstanding such termination.
7.3 The Sales Manager shall have the right, by giving notice as
hereinafter specified, to terminate this Agreement in its sole discretion at any
time after the first anniversary of the date of this Agreement. Any such
termination shall be without liability of any party to any other party except
that the provisions of Article 3.1(h), Article V and Article VI hereof shall
remain in full force and effect notwithstanding such termination.
7.4 This Agreement shall remain in full force and effect unless
terminated pursuant to Section 7.1, 7.2 or 7.3 above or otherwise by mutual
agreement of the parties; provided that any such termination by mutual agreement
shall in all cases be deemed to provide that Section 3.1(h), Article V and
Article VI shall remain in full force and effect.
7.5 Any termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination shall
not be effective until the close of business on the date of receipt of such
notice by the Sales Manager or the Company, as the case may be. If such
termination shall occur during a period when sales of Stock are being made
pursuant to this Agreement, such sales shall settle in accordance with the
provisions of this Agreement.
ARTICLE 8
NOTICES
8.1 All notices or communications hereunder shall be in writing and if
sent to the Sales Manager shall be mailed, delivered or telecopied and confirmed
to the Sales Manager at RCG ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇'▇▇▇▇▇
(with a copy sent in the same manner to Kleinberg, Kaplan, ▇▇▇▇▇ and ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Esq.), or if sent to the Company, shall be mailed, delivered or telecopied and
confirmed to the Company at Marine Drilling Companies, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, facsimile number (281)
243-3080, Attention: ▇▇▇▇▇▇ ▇▇▇▇ (with a copy sent in the same manner to ▇▇▇▇▇▇
& ▇▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.). Each party to this Agreement may
change such address for notices by sending to the parties to this Agreement
written notice of a new address for such purpose.
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ARTICLE 9
MISCELLANEOUS
9.1 This Agreement shall inure to the benefit of and be binding upon
the Company and the Sales Manager and their respective successors and the
controlling persons, officers and directors referred to in Article V hereof, and
no other person will have any right or obligation hereunder.
9.2 This Agreement constitutes the entire agreement and supersedes all
other prior and contemporaneous agreements and undertakings, both written and
oral, among the parties hereto with regard to the subject matter hereof.
9.3 THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS.
9.4 This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. The parties agree that this Agreement will be
considered signed when the signature of a party is delivered by facsimile
transmission. Such facsimile transmission shall be treated in all respects as
having the same effect as an original signature.
9.5 The parties acknowledge and agree that all share related numbers
contained in this Agreement (including, without limitation, the Maximum Amount)
shall be adjusted to take into account any stock split effected with respect to
the Stock.
If the foregoing correctly sets forth the understanding among the
Company and the Sales Manager, please so indicate in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
among the Company and the Sales Manager. Alternatively, the execution of this
Agreement by the Company and its acceptance by or on behalf of the Sales Manager
may be evidenced by an exchange of telegraphic or other written communications.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof.
Marine Drilling Companies, Inc.
By: /s/ T. ▇▇▇▇▇ ▇'▇▇▇▇▇
----------------------------------
Name: T. ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
RCG ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a division
of RAMIUS SECURITIES, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
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SCHEDULE 1.1(a)
LIST OF SUBSIDIARIES
Marine Drilling Management Company
Marine Drilling International, Inc.
Marine 300 Series, Inc.
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EXHIBIT A
FORM OF OPINION OF
COUNSEL TO THE COMPANY TO BE
DELIVERED TO THE SALES AGENT
The favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the
Company, in form and substance reasonably satisfactory to the Sales Agent,
substantially to the effect that:
(i) Each of the Company and the domestic subsidiaries of the
Company have been duly incorporated and are validly existing as a
corporation in good standing under the laws of its respective
jurisdiction of incorporation, and each is duly qualified and in good
standing as a foreign corporation in each United States jurisdiction in
which it conducts its business, except for such jurisdictions where the
failure to so qualify would not have a Material Adverse Effect; and
each of the Company and the domestic subsidiaries of the Company have
all requisite corporate power and authority to own its assets and
properties and conduct its business as described in the Registration
Statement and the Prospectus.
(ii) The Stock has been duly authorized for issuance by the
Company; all of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable and free of preemptive rights pursuant to the Business
Corporation Act of the State of Texas, and the Company's articles of
incorporation. The Stock, when issued, delivered and paid for pursuant
to this Agreement, will be duly and validly issued, fully paid and
nonassessable and free of preemptive rights pursuant to the Business
Corporation Act of the State of Texas, and the Company's articles of
incorporation. The Stock conforms in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus.
(iii) The descriptions in the Prospectus under the captions
"Description of Common Stock and Preferred Stock", "Risk
Factors-Significance of the Marine 500 and Marine 700 Contracts,
-Environmental Laws Could Increase our Costs and Liabilities and
Restrict our Operations, and -Our Charter Documents and Texas Law may
Discourage an Attempt by Others to Acquire Control of Us", the
description in Part II of the Registration Statement under Item 15, and
other descriptions of statutes, legal and governmental proceedings,
material contracts or other material documents in the Registration
Statement or Prospectus, if any, that may be included by amendment or
supplement thereto, insofar as such statements constitute a summary of
documents referred to therein, matters of law or legal conclusions, are
fair summaries of the material provisions thereof in all material
respects. All material contracts and other material documents known to
such counsel and required to be filed as exhibits to the Registration
Statement have been so filed or incorporated by reference therein.
(iv) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and
performance of this Agreement and the
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issuance and sale of the Stock by the Company. This Agreement has been
duly executed and delivered by the Company.
(v) No consent, approval, authorization, order, or filing
with, any United States court, governmental agency or regulatory body
is required in connection with the issuance or sale of the Stock as
contemplated by this Agreement, except such as have been obtained under
the Act (except that such counsel need express no opinion with respect
to state securities or Blue Sky Laws).
(vi) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the
transactions contemplated herein by the Company will conflict with or
result in the breach of any term or provision of, or constitute a
default (or any event which with notice or lapse of time, or both,
would constitute a default) under any indenture, mortgage, deed of
trust, note, or other material agreement or instrument known to such
counsel and to which the Company or any of its domestic subsidiaries is
a party or by which the Company or any of its domestic subsidiaries or
any of their respective properties or businesses are bound, or any
judgment, decree, order, statute, rule or regulation known to such
counsel to be applicable to the Company or its domestic subsidiaries,
or violate any provision of the charter or by-laws of the Company.
(vii) To the best of such counsel's knowledge, each of the
Company and the domestic subsidiaries of the Company is not in
violation of any term or provision of its charter or by-laws.
(viii) The Registration Statement, when the post effective
amendment no. 1 thereto became effective, the Prospectus, each of the
documents incorporated by reference in the Registration Statement and
the Prospectus and any amendment or supplement thereto, on the date of
filing thereof with the Commission (except for the financial statements
and notes and schedules and other financial and statistical information
included or incorporated by reference therein, as to which such counsel
expresses no opinion) complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations and the
Exchange Act and the rules and regulations promulgated thereunder, as
the case may be.
(ix) The Registration Statement has become effective under the
Act; the filing of a Prospectus supplement has been made in the manner
and within the time period required by the Rules and Regulations; and,
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are threatened or
pending.
(x) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
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To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company and
public officials. Copies of such certificates shall be furnished to the Sales
Manager and its counsel.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company and representatives of the independent certified public accountants of
the Company, at which conferences the contents of the Registration Statement and
the Prospectus and related matters were discussed and, although such counsel is
not passing upon and does not assume any responsibility for any accuracy,
completeness or fairness of the statements contained or incorporated by
reference in the Registration Statement and the Prospectus (except as specified
in the foregoing opinion), on the basis of the foregoing no facts have come to
the attention of such counsel which have caused such counsel to believe that the
Registration Statement at the time the post-effective amendment no. 1 thereto,
and any subsequent post-effective amendment, became effective, contained any
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 and any amendments or supplements thereto, on the date of
filing thereof with the Commission and at the Commencement Date and at each
Settlement Date on or prior to the date of the opinion, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
not express any belief with respect to matters of title to properties owned by
the Company or as to the financial statements and schedules and other financial
information included or incorporated by reference in the Registration Statement
or the Prospectus).
3
