Exhibit 1.1
Execution
Copy
7,500,000
HERCULES OFFSHORE,
INC.
COMMON STOCK
UNDERWRITING
AGREEMENT
November 13, 2006
C REDIT S UISSE S ECURITIES (USA) LLC
As Representative of the Several
Underwriters,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory . The
stockholders listed in Schedule A hereto (the “ Selling
Stockholders ”) propose severally to sell an aggregate of
7,500,000 outstanding shares of common stock, par value $0.01 per
share (the “ Securities ”) of Hercules Offshore,
Inc., a Delaware corporation (“ Company ”),
(such Securities to be sold by the Selling Stockholders being
hereinafter referred to as the “ Firm Securities
”). The Selling Stockholders also propose to sell to the
Underwriters (as defined herein), at the option of the
Underwriters, an aggregate of not more than 1,125,000 additional
outstanding shares of the Securities, as set forth below (such
1,125,000 additional shares being hereinafter referred to as the
“ Optional Securities ”). The Firm Securities
and the Optional Securities are herein collectively called the
“ Offered Securities ”.
The Company and the Selling
Stockholders hereby agree with the several Underwriters named in
Schedule B hereto (“ Underwriters ”) as
follows:
2. Representations and Warranties
of the Company and the Selling Stockholders . (a) The
Company represents and warrants to, and agrees with, the several
Underwriters that:
(i) The Company has filed with the
Commission (as hereinafter defined) a registration statement on
Form S-3 (No. 333-138475), including a related prospectus or
prospectuses, covering the registration of the Offered Securities
under the Act, which has become effective. “ Registration
Statement ” at any particular time means such
registration statement in the form then filed with the Commission,
including any amendment thereto, any document incorporated by
reference therein and all 430A Information, all 430B Information
and all 430C Information with respect to such registration
statement, that in any case has not been superseded or modified.
“ Registration Statement ” without reference to
a time means the Registration Statement as of the Effective Time.
For purposes of this definition, 430A Information and 430B
Information shall be considered to be included in the Registration
Statement as of the time specified in Rule 430A and Rule 430B, as
the case may be.
For purposes of this
Agreement:
“ 430A Information
” means information included in a prospectus retroactively
deemed to be a part of the Registration Statement pursuant to Rule
430A(b).
“ 430B Information
” means information included in a prospectus then deemed to
be a part of the Registration Statement pursuant to Rule 430B(e) or
retroactively deemed to be a part of the Registration Statement
pursuant to Rule 430B(f).
“ 430C Information
” means information included in a prospectus then deemed to
be a part of the Registration Statement pursuant to Rule
430C.
“ Act ” means the
Securities Act of 1933, as amended.
“ Applicable Time
” means 6:30 pm (Eastern time) on the date of this
Agreement.
“ Closing Date ”
has the meaning defined in Section 3 hereof.
“ Commission ”
means the Securities and Exchange Commission.
“ Effective Time
” of the Registration Statement relating to the Offered
Securities means the time of the first contract of sale for the
Offered Securities.
“ Exchange Act ”
means the Securities Exchange Act of 1934.
“ Final Prospectus
” means the Statutory Prospectus that discloses the public
offering price, other 430A Information and 430B Information and
other final terms of the Offered Securities and otherwise satisfies
Section 10(a) of the Act.
“ General Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being so specified in Schedule B to
this Agreement.
“ Issuer Free Writing
Prospectus ” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the
Offered Securities in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to
Rule 433(g).
“ Limited Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus.
“ Rules and Regulations
” means the rules and regulations of the Commission. Unless
otherwise noted, references to a specified rule in this Agreement
shall be to such rule in the Rules and Regulations promulgated
under the Act.
“ Securities Laws
” means, collectively, the Sarbanes-Oxley Act of 2002
(“ Sarbanes-Oxley ”), the Act, the Exchange Act,
the Rules and Regulations, the auditing principles, rules,
standards and practices applicable to auditors of
“issuers” (as defined in Sarbanes-Oxley) promulgated or
approved by the Public Company Accounting Oversight Board and the
rules of the NASDAQ Stock Market.
“ Statutory Prospectus
” with reference to any particular time means the prospectus
relating to the Offered Securities that is included in the
Registration Statement immediately prior to that time, including
all 430A Information, all 430B Information and all
430C Information with respect to the Registration Statement
and any document incorporated by reference therein, in each case
that has not been superseded or modified. For purposes of the
foregoing definition, 430B Information shall be considered to
be included in the Statutory Prospectus only as of the actual time
that form of prospectus (including a prospectus supplement) is
filed with the Commission pursuant to Rule 424(b) and not
retroactively.
(ii)(A)(1) At the time the
Registration Statement initially became effective, (2) at the
time of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report or form of prospectus), (3) at
the Effective Time relating to the Offered Securities and
(4) on the Closing Date, the Registration Statement conformed
and will conform in all material respects to the requirements of
the Act and the Rules and Regulations and did not and will not
include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading and (B) (1) on its
date, (2) at the time of filing, the Final Prospectus pursuant
to Rule 424(b) and (3) on the Closing Date, the Final
Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations, and will not
include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading. The preceding sentence
does not apply to statements in or omissions from any such document
based upon written information furnished to the Company by any
Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such
information is that described as such in Section 8(c)
hereof.
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(iii)(A) At the time of initial
filing of the Registration Statement, (B) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (C) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Offered Securities in
reliance on the exemption of Rule 163, the Company was a
“well known seasoned issuer” as defined in Rule 405,
including not having been an “ineligible issuer” as
defined in Rule 405.
(iv) The Registration Statement is
an “automatic shelf registration statement,” as defined
in Rule 405, that initially became effective within three years of
the date of this Agreement. If immediately prior to the Renewal
Deadline (as hereinafter defined), any of the Offered Securities
remain unsold by the Underwriters, the Company will prior to the
Renewal Deadline file, if it has not already done so and is
eligible to do so, a new automatic shelf registration statement
relating to the Offered Securities, in a form satisfactory to the
Representative. If the Company is no longer eligible to file an
automatic shelf registration statement, the Company will prior to
the Renewal Deadline, if it has not already done so, file a new
shelf registration statement relating to the Offered Securities, in
a form satisfactory to the Representative, and will use its best
efforts to cause such registration statement to be declared
effective within 180 days after the Renewal Deadline. The Company
will take all other action necessary or appropriate to permit the
public offering and sale of the Offered Securities to continue as
contemplated in the expired registration statement relating to the
Offered Securities. References herein to the Registration Statement
shall include such new automatic shelf registration statement or
such new shelf registration statement, as the case may be. “
Renewal Deadline ” means the third anniversary of the
initial effective time of the Registration Statement.
(v) The Company has not received
from the Commission any notice pursuant to Rule 401(g)(2) objecting
to use of the automatic shelf registration statement form. If at
any time when Offered Securities remain unsold by the Underwriters
the Company receives from the Commission a notice pursuant to Rule
401(g)(2) or otherwise ceases to be eligible to use the automatic
shelf registration statement form, the Company will
(i) promptly notify the Representative, (ii) promptly
file a new registration statement or post-effective amendment on
the proper form relating to the Offered Securities, in a form
satisfactory to the Representative, (iii) use its best efforts
to cause such registration statement or post-effective amendment to
be declared effective as soon as practicable, and
(iv) promptly notify the Representative of such effectiveness.
The Company will take all other action necessary or appropriate to
permit the public offering and sale of the Offered Securities to
continue as contemplated in the registration statement that was the
subject of the Rule 401(g)(2) notice or for which the Company has
otherwise become ineligible. References herein to the Registration
Statement shall include such new registration statement or
post-effective amendment, as the case may be.
(vi) The Company has paid or shall
pay the required Commission filing fees relating to the Offered
Securities within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r).
(vii)(A) At the earliest time after
the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2)) of the Offered Securities and
(B) at the date of this Agreement, the Company was not and is
not an “ineligible issuer,” as defined in Rule 405,
including (x) the Company or any other subsidiary in the
preceding three years not having been convicted of a felony or
misdemeanor or having been made the subject of a judicial or
administrative decree or order as described in Rule 405 under the
Act and (y) the Company in the preceding three years not
having been the subject of a bankruptcy petition or insolvency or
similar proceeding, not having had a registration statement be the
subject of a proceeding under Section 8 of the Act and not
being the subject of a proceeding under Section 8A of the Act
in connection with the offering of the Offered Securities, all as
described in Rule 405.
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(viii) As of the Applicable Time,
neither (A) the General Use Issuer Free Writing Prospectus(es)
issued at or prior to the Applicable Time, the preliminary
prospectus, dated November 7, 2006, including any document
incorporated by reference therein, that has not been superseded or
modified (which is the most recent Statutory Prospectus distributed
to investors generally), and the documents attached to this
Agreement as Schedule C hereto, all considered together
(collectively, the “ General Disclosure Package
”), nor (B) any individual Limited Use Issuer Free
Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from any Statutory
Prospectus or any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 8(c)
hereof.
(ix) Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Offered
Securities or until any earlier date that the Company notified or
notifies the Representative as described in the next sentence, did
not, does not and will not include any information that conflicted,
conflicts or will conflict with the information then contained in
the Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or included or would
include an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at
that subsequent time, not misleading, (A) the Company has
promptly notified or will promptly notify the Representative and
(B) the Company has promptly amended or will promptly amend or
supplement such Issuer Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission. The foregoing
two sentences do not apply to statements in or omissions from any
Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 8(c)
hereof.
(x) The Company has been duly
incorporated and is validly existing in good standing under the
laws of the State of Delaware, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the General Disclosure Package; and the Company is
duly qualified to do business as a foreign entity in good standing
in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, except where the failure to be so qualified or in
good standing would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or other),
business, properties, results of operations or prospects of the
Company and its subsidiaries taken as a whole (a “
Material Adverse Effect ”);
(xi) Each subsidiary of the Company
has been duly organized and is validly existing in good standing
under the laws of the jurisdiction of its organization, with power
and authority (limited liability company, corporate and other) to
own its properties and conduct its business as described in the
General Disclosure Package; and each subsidiary of the Company is
duly qualified or has made the necessary filing requirements and
received the necessary approvals, as the case may be, to do
business as a foreign limited liability company in good standing in
all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except
where the failure to be so qualified or in good standing would not,
individually or in the aggregate, have a Material Adverse Effect;
all of the issued and outstanding equity interests of each
subsidiary of the Company have been duly authorized and validly
issued in accordance with the organizational documents of each
company and are fully paid (to the extent required under the
applicable company’s organizational documents and limited
liability company agreement) and nonassessable (except as such
nonassessability may be affected by Section 18-607 of the
Delaware Limited Liability Company Act (the “ Delaware LLC
Act ”) and any similar foreign law); and the equity
interests of each subsidiary owned by the Company, directly or
through subsidiaries, are owned free from liens,
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encumbrances and defects, except to
the extent such membership interests are subject to a lien or
encumbrance in connection with the Credit Agreement dated as of
June 29, 2005, as amended, (the “ Credit
Agreement ”) among the Company, as borrower, Comerica
Bank, as administrative agent, Citicorp North America, Inc., as
syndication agent, Credit Suisse, Cayman Islands Branch, as
documentation agent, and the lenders party thereto.
(xii) The Offered Securities and all
other outstanding shares of capital stock of the Company have been
duly authorized, are validly issued, fully paid and nonassessable
and conform in all material respects to the description thereof
contained in the Statutory Prospectus at the Applicable Time; and
the stockholders of the Company have no preemptive rights with
respect to the Securities.
(xiii) Except as disclosed in the
General Disclosure Package, there are no contracts, agreements or
understandings between the Company and any person that would give
rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder’s fee or other like payment in
connection with this offering.
(xiv) Except as disclosed in the
General Disclosure Package, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by
the Company under the Act that have not been validly waived or
satisfied prior to the date hereof.
(xv) The Securities have been
approved for listing on the NASDAQ Global Market.
(xvi) No consent, approval,
authorization, or order of, or filing with, any governmental agency
or body or any court is required to be obtained or made by the
Company for the consummation of the transactions contemplated by
this Agreement, except (1) such as have been obtained and made
under the Act (provided, however, a filing with the Commission
pursuant to Rule 424(b) may be made after the date hereof so long
as such filing is made within the time period specified in the
applicable provision of such rule) and (2) such as may be
required under state securities laws.
(xvii) The execution, delivery and
performance of this Agreement by the Company, and the consummation
of the transactions herein contemplated will not result in a breach
or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, other than such breaches,
violations or defaults that would not, individually or in the
aggregate, have a Material Adverse Effect.
(xviii) The execution, delivery and
performance of this Agreement, and the consummation of the
transactions herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, (1) any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company
or any such subsidiary is bound or to which any of the properties
of the Company or any such subsidiary is subject, or (2) the
organizational documents of the Company or any such subsidiary,
other than in the case of clause (1), such breaches, violations or
defaults that would not, individually or in the aggregate, have a
Material Adverse Effect.
(xix) This Agreement has been duly
authorized, executed and delivered by the Company.
(xx) Except as disclosed in the
General Disclosure Package, the Company and its subsidiaries
(1) have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would affect the value
thereof or interfere with the use made or to be made thereof by
them and, (2) hold any leased real or personal property under
valid and enforceable leases with no exceptions that would
interfere with the use made or to be made thereof by them, except,
in each case, for such liens, encumbrances, defects or exceptions
that would not have a Material Adverse Effect.
5
(xxi) The Company and its
subsidiaries possess adequate certificates, authorities or permits
issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them, except where the lack
thereof would not, individually or in the aggregate, have a
Material Adverse Effect, and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to
the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(xxii) No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent that would have a Material
Adverse Effect.
(xxiii) The Company and its
subsidiaries own, possess, license or can acquire on reasonable
terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, “
intellectual property rights ”) necessary to conduct
the business now operated by them, or presently employed by them,
except where the lack thereof would not, individually or in the
aggregate, have a Material Adverse Effect, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect.
(xxiv) Except as disclosed in the
General Disclosure Package, neither the Company nor any of its
subsidiaries is in violation of any statute, rule, regulation,
decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or
toxic substances (collectively, “ environmental laws
”), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable for
any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have Material Adverse
Effect; and the Company is not aware of any pending investigation
which might lead to such a claim.
(xxv) Except as disclosed in the
General Disclosure Package, there are no pending actions, suits or
proceedings against or, to the Company’s knowledge, affecting
the Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect
the ability of the Company to perform its obligations under this
Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company’s knowledge,
contemplated.
(xxvi) The financial statements
included in the Registration Statement and the General Disclosure
Package present fairly the financial position of the Company and
its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States
(“ GAAP ”) applied on a consistent basis; and
the schedules included in each Registration Statement present
fairly the information required to be stated therein.
(xxvii) Except as disclosed in the
General Disclosure Package, since the date of the latest audited
financial statements included in the General Disclosure Package
(i) there has been no material adverse change, nor any
development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken
as a whole and (ii) there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of
its capital stock.
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(xxviii) The Company and its
subsidiaries maintain systems of internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain asset accountability; (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 the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(xxix) The Company is not an
“investment company” as defined in the Investment
Company Act of 1940.
(xxx) The Company is subject to the
reporting requirements of either Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 and files
reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) system.
(xxxi) Other than Hercules Oilfield
Services, Ltd. and Hercules International Management Company, Ltd.,
each a Cayman Islands company and a wholly owned subsidiary of the
Company, the Company does not own or control, directly or
indirectly, any corporation, association or other entity other than
the subsidiaries listed in Exhibit 21.1 to the Company’s
Annual Report on Form 10-K for the most recent fiscal year.
Hercules Offshore Nigeria, Ltd., a Nigerian company, is not a
significant subsidiary within the meaning of Rule 1-02(w) of
Regulation S-X.
(xxxii) The Company has not taken,
directly or indirectly, any action that is designed to or that has
constituted or that would reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Offered
Securities.
(xxxiii) None of the Company nor any
of its subsidiaries nor, to the Company’s knowledge, their
respective officers, directors, supervisors, managers, agents, or
employees has violated in any material respect (i) any
anti-bribery laws applicable to the Company and its subsidiaries,
including but not limited to the U.S. Foreign Corrupt Practices Act
of 1977, (ii) the sanctions program implemented and
administered by the U.S. Department of the Treasury’s Office
of Foreign Assets Control, including, without limitation, 31 CFR
Parts 500-600, with respect to the Company or (iii) financial
record keeping and reporting requirements relating to money
laundering applicable to the Company and its subsidiaries, and no
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the foregoing is pending
or, to the knowledge of the Company, threatened.
(b) Each Selling Stockholder
severally represents and warrants to, and agrees with, the several
Underwriters that:
(i) Such Selling Stockholder will
have on each Closing Date hereinafter mentioned valid and
unencumbered title to the Offered Securities to be delivered by
such Selling Stockholder on such Closing Date and full right, power
and authority to enter into this Agreement and to sell, assign,
transfer and deliver the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date hereunder; and upon the
delivery of and payment for the Offered Securities on each Closing
Date hereunder the several Underwriters will acquire valid and
unencumbered title to the Offered Securities to be delivered by
such Selling Stockholder on such Closing Date.
(ii)(A) (1) At the time the
Registration Statement initially became effective, (2) at the
time of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report or form of prospectus), (3) at
the Effective Time relating to the Offered Securities and
(4) on the Closing Date, the Registration Statement conformed
and will conform in all respects to the requirements of the Act and
the Rules and Regulations and did not and will not include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and (B) (1) on its date,
(2) at the time of filing the Final Prospectus pursuant to
Rule 424(b) and (3) on the Closing Date, the Final
Prospectus will conform in
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all respects to the requirements of
the Act and the Rules and Regulations, and will not include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading. Each Selling Stockholder makes
the representations contained in the two preceding sentences only
to the extent that any statements in or omissions from the
Registration Statement or the Final Prospectus are based on written
information furnished to the Company by such Selling Stockholder
specifically for use therein.
(iii) As of the Applicable Time,
neither (A) General Disclosure Package, nor (ii) any
individual Limited Use Issuer Free Writing Prospectus, when
considered together with the General Disclosure Package, included
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. Each Selling Stockholder makes the representations
contained in the preceding sentence only to the extent that any
statements in or omissions from the Registration Statement or any
Issuer Free Writing Prospectus are based on written information
furnished to the Company by such Selling Stockholder specifically
for use therein.
(iv) Except as disclosed in the
General Disclosure Package, there are no contracts, agreements or
understandings between such Selling Stockholder and any person that
would give rise to a valid claim against such Selling Stockholder
or any Underwriter for a brokerage commission, finder’s fee
or other like payment in connection with this offering.
(v) Such Selling Stockholder has no
reason to believe that the representations and warranties of the
Company contained in this Section 2 are not true and correct,
is familiar with the Registration Statement and has no knowledge of
any material fact, condition or information not disclosed in the
General Disclosure Package which has adversely affected or may
adversely affect the business of the Company or any of its
subsidiaries; and the sale of Securities by such Selling
Stockholder pursuant hereto is not prompted by any information
concerning the Company or any of its subsidiaries which is not set
forth in the General Disclosure Package.
(vi) No consent, approval,
authorization, or order of, or filing with, any governmental agency
or body or any court is required to be obtained or made by such
Selling Stockholder for the consummation of the transactions
contemplated by this Agreement and the sale of the Offered
Securities sold by such Selling Stockholder, except such as have
been obtained and made under the Act and such as may be required
under state securities laws.
(vii) The execution, delivery and
performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over
any Selling Stockholder or any of their properties or any agreement
or instrument to which any Selling Stockholder is a party or by
which any Selling Stockholder is bound or to which any of the
properties of any Selling Stockholder is subject, or the charter or
by-laws of any Selling Stockholder which is a
corporation.
(viii) Such Selling Stockholder is a
“U.S. Citizen,” as such term is defined in the form of
Certificate of Incorporation of the Company filed as an exhibit to
the Registration Statement, other than Greenhill Capital Partners
(Cayman), L.P. (“Greenhill Cayman”).
(ix) This Agreement has been duly
authorized, executed and delivered by each Selling
Stockholder.
(x) Such Selling Stockholder has not
taken and will not take, directly or indirectly, any action that is
designed to or that has constituted or that would reasonably be
expected to cause or result in the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Securities.
8
3. Purchase, Sale and Delivery of
Offered Securities . On the basis of the representations,
warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, each Selling Stockholder
agrees, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from each Selling Stockholder, at a purchase price of $31.7625 per
share, that number of Firm Securities (rounded up or down, as
determined by the Representative in its discretion, in order to
avoid fractional shares) obtained by multiplying the number of Firm
Securities set forth opposite the name of such Selling Stockholder
in Schedule A hereto, by a fraction the numerator of which is the
number of Firm Securities set forth opposite the name of such
Underwriter in Schedule B hereto and the denominator of which is
the total number of Firm Securities.
The Selling Stockholders will
deliver the Firm Securities to the Representative for the accounts
of the several Underwriters in a form reasonably acceptable to the
Representative, against payment of the purchase price in Federal
(same day) funds by official bank check or checks or wire transfer
to an account at a bank acceptable to the Representative drawn to
the order of American Stock Transfer & Trust Company, as
custodian for the Selling Stockholders, at the office of Baker
Botts L.L.P., 910 Louisiana Street, One Shell Plaza, Houston, Texas
77002, at 9:00 A.M., Houston, Texas time, on November 17,
2006, or at such other time not later than seven full business days
thereafter as the Representative and the Company determine, such
time being herein referred to as the “First Closing
Date”. For purposes of Rule 15c6-1 under the Exchange Act,
the First Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Offered Securities sold
pursuant to the offering. Any certificates for the Firm Securities
so to be delivered will be in definitive form, in such
denominations and registered in such names as the Representative
requests and will be made available for inspection by the
Representative at the above office of Baker Botts L.L.P. at least
24 hours prior to the First Closing Date.
In addition, upon written notice
from the Representative given to the Company and the Selling
Stockholders from time to time not more than 30 days subsequent to
the date of the Prospectus, the Underwriters may purchase all or
less than all of the Optional Securities at the purchase price per
Security to be paid for the Firm Securities. Each Selling
Stockholder agrees, severally and not jointly, to sell to the
Underwriters the respective numbers of Optional Securities obtained
by multiplying the number of Optional Securities specified in such
notice by a fraction the numerator of which is the number of
Optional Securities set forth opposite the names of such Selling
Stockholder in Schedule A hereto under the caption “Number of
Optional Securities to be Sold” and the denominator of which
is the total number of Optional Securities so set forth opposite
the names of all Selling Stockholders (subject to adjustment by the
Representative to eliminate fractional shares). Such Optional
Securities shall be purchased from each Selling Stockholder for the
account of each Underwriter in the same proportion as the number of
Firm Securities set forth opposite such Underwriter’s name
bears to the total number of Firm Securities (subject to adjustment
by the Representative to eliminate fractional shares) and may be
purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered
unless the Firm Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to
time and to the extent not previously exercised may be surrendered
and terminated at any time upon notice by the Representative to the
Company and the Selling Stockholders.
Each time for the delivery of and
payment for the Optional Securities, being herein referred to as an
“ Optional Closing Date ”, which may be the
First Closing Date (the First Closing Date and each Optional
Closing Date, if any, being sometimes referred to as a “
Closing Date ”), shall be determined by the
Representative but shall be not later than five full business days
after written notice of election to purchase Optional Securities is
given. The Selling Stockholders will deliver the Optional
Securities being purchased on each Optional Closing Date to the
Representative for the accounts of the several Underwriters,
against payment of the purchase price therefor in Federal (same
day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to the Representative drawn to the
order of American Stock Transfer & Trust Company, as
custodian for the Selling Stockholders, at the above office of
Baker Botts L.L.P. Any certificates for the Optional Securities
being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as the
Representative request upon reasonable notice prior to such
Optional Closing Date and will be made available for inspection by
the Representative at the above office of Baker Botts L.L.P. at a
reasonable time in advance of such Optional Closing
Date.
9
4. Offering by Underwriters .
It is understood that the several Underwriters propose to offer the
Offered Securities for sale to the public as set forth in the
Prospectus.
5. Certain Agreements of the
Company and the Selling Stockholders . The Company agrees with
the several Underwriters and the Selling Stockholders
that:
(a) The Company has filed or will
file each Statutory Prospectus (including the Final Prospectus)
pursuant to and in accordance with Rule 424(b)(1) or Rule 424(b)(2)
(or, if applicable and consented to by the Representative (which
shall not be unreasonably withheld), subparagraph (3), (4) or
(5)) not later than the second business day following the
earlier of the date it is first used or the date of this Agreement.
The Company has complied and will comply with Rule 433.
(b) The Company will promptly advise
the Representative of any proposal to amend or supplement the
Registration Statement or any Statutory Prospectus with respect to
the Offered Securities at any time and will afford the
Representative a reasonable opportunity to comment on any such
proposed amendment or supplement; and the Company will also advise
the Representative promptly of (i) the filing of any such
amendment or supplement, (ii) any request by the Commission or
its staff for any amendment to any Registration Statement, for any
supplement to any Statutory Prospectus or for any additional
information, in each case with respect to the Offered Securities,
(iii) the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or the
threatening of any proceeding for that purpose, and (iv) the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Securities in any
jurisdiction or the institution or threatening of any proceedings
for such purpose. The Company will use its reasonable best efforts
to prevent the issuance of any such stop order or the suspension of
any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(c) If, at any time when a
prospectus relating to the Offered Securities is (or but for the
exemption in Rule 172 would be) required to be delivered under the
Act in connection with sales by any Underwriter or dealer, any
event occurs as a result of which the Registration Statement or the
Final Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with the
Act, the Company will promptly notify the Representative of such
event and will promptly prepare and file with the Commission, at
its own expense, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Neither the Representative’s consent to, nor the
Underwriters’ delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in
Section 6.
(d) As soon as practicable, but not
later than 16 months after the date of this Agreement, the Company
will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after
the date of this Agreement and satisfying the provisions of
Section 11(a) of the Act and Rule 158.
(e) The Company will furnish to the
Representative copies of the Registration Statement (one of which
will be signed and will include all exhibits), any Statutory
Prospectus relating to the Offered Securities, the Final Prospectus
and all amendments and supplements to such documents, in each case
in such quantities as the Representative reasonably requests. The
Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the
qualification of the Offered Securities for sale under the laws of
such jurisdictions as the Representative designates and will
continue such qualifications in effect so long as required for the
distribution of the Offered Securities; provided that, in
connection therewith, the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service
of
