JEFFERIES &
COMPANY, INC.
520 Madison Avenue
New York, New York 10022
Introductory. GulfMark Offshore, Inc., a Delaware
corporation (the “ Company ”), proposes to issue
and sell to Jefferies & Company, Inc. (the “
Underwriter ”) an aggregate of 2,000,000 shares of its
common stock, par value $0.01 per share (the “ Shares
”). The 2,000,000 Shares to be sold by the Company are called
the “ Firm Shares .” In addition, the Company
has granted to the Underwriter an option to purchase up to an
additional 300,000 Shares as provided in Section 2. The
additional 300,000 Shares to be sold by the Company pursuant to
such option are collectively called the " Optional Shares
.” The Firm Shares and, if and to the extent such option is
exercised, the Optional Shares are collectively called the “
Offered Shares .”
The Company has
prepared and filed with the Securities and Exchange Commission (the
" Commission ”) a shelf registration statement on Form
S-3 (File No. 333-133563), and has prepared a base prospectus
(the “ Base Prospectus ”) to be used in
connection with the public offering and sale of the Offered Shares.
Such registration statement, as amended, including the financial
statements, exhibits and schedules thereto, in the form in which it
was declared effective by the Commission under the Securities Act
of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “ Securities Act
”), including all documents incorporated or deemed to be
incorporated by reference therein and any information deemed to be
a part thereof at the time of effectiveness pursuant to
Rule 430B under the Securities Act or the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated
thereunder (collectively, the “ Exchange Act ”),
is called the “ Registration Statement .” The
prospectus supplement to be filed promptly after the date hereof
describing the Offered Shares and the offering thereof (the “
Prospectus Supplement ”), together with the Base
Prospectus, in the form first used by the Underwriter to confirm
sales of the Offered Shares or in the form first made available to
the Underwriter by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act, is referred to
herein the “ Prospectus. ” As used herein,
“ Applicable Time ” is 6:00 p.m. (New York time)
on December 4, 2006. As used herein, “ free writing
prospectus ” has the meaning set forth in Rule 405
under the Securities Act, and “ Time of Sale
Prospectus ” means the Base Prospectus, as amended or
supplemented immediately prior to the Applicable Time, together
with the free writing prospectuses, if any, identified on
Exhibit A hereto. As used herein, the terms
“Registration Statement,” “Base
Prospectus,” “Time of Sale Prospectus” and
“Prospectus” shall include the documents incorporated
and deemed to be incorporated by reference therein. All references
in this Agreement to amendments or supplements to the Registration
Statement, the Base Prospectus, the Time of Sale Prospectus
or
1
the Prospectus
shall be deemed to mean and include the filing of any document
under the Exchange Act which is or is deemed to be incorporated by
reference in the Registration Statement, the Base Prospectus, the
Time of Sale Prospectus or the Prospectus, as the case may be. All
references in this Agreement to (i) the Registration
Statement, the Base Prospectus, the Time of Sale Prospectus or the
Prospectus, or any amendments or supplements to any of the
foregoing, shall include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“ EDGAR ”) and (ii) the Prospectus
shall be deemed to include the " electronic Prospectus
” provided for use in connection with the offering of the
Offered Shares as contemplated by Section 3(n) of this Agreement.
All references in this Agreement to financial statements and
schedules and other information which are “ contained
,” “ included, ” “ set forth
” or " stated ” in the Registration Statement,
the Base Prospectus, the Time of Sale Prospectus or the Prospectus
(and all other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference
in the Registration Statement, the Base Prospectus, the Time of
Sale Prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the
Registration Statement, the Base Prospectus, the Time of Sale
Prospectus or the Prospectus, as the case may be, and all
references in this Agreement to amendments or supplements to the
Registration Statement, the Base Prospectus, the Time of Sale
Prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Exchange Act which is or is
deemed to be incorporated by reference in the Registration
Statement, the Base Prospectus, the Time of Sale Prospectus or the
Prospectus, as the case may be.
The Company hereby
confirms its agreements with the Underwriter as follows:
Section 1. Representations and Warranties of the
Company .
The Company hereby
represents and warrants to the Underwriter, as of the date of this
Agreement, as of the First Closing Date (as hereinafter defined)
and as of each Option Closing Date (as hereafter defined), if any,
and covenants with the Underwriter, as follows:
(a) Compliance
with Registration Requirements . The Registration Statement has
been declared effective by the Commission under the Securities Act.
The Company has complied to the Commission’s satisfaction
with all requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for such
purpose have been instituted or are pending or, to the knowledge of
the Company, are contemplated or threatened by the
Commission.
The Prospectus
when filed complied in all material respects with the Securities
Act and, if filed by electronic transmission pursuant to EDGAR
(except as may be permitted by Regulation S-T under the
Securities Act), was identical to the copy thereof delivered to the
Underwriter for use in connection with the offer and sale of the
Offered Shares. The Registration Statement and any post-effective
amendment thereto, at the time it became effective and at all
subsequent times prior to completion of the sale of all the Offered
Shares as contemplated hereby, complied and will comply in all
material respects with the Securities Act and did not and will not
contain any 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. As of the Applicable Time,
the Time of Sale Prospectus did not, and at the time of each sale
of the Offered Shares and at the First Closing Date (as defined in
Section 2), the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable,
2
will not,
contain any 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. The Prospectus, as amended or supplemented, as of its
date and at all subsequent times prior to the completion of the
sale of all the Offered Shares as contemplated hereby, did not and
will not contain any untrue statement of a material fact or omit 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. The representations and warranties set forth
in the three immediately preceding sentences do not apply to
statements in or omissions from the Registration Statement or any
post-effective amendment thereto, or the Prospectus or Time of Sale
Prospectus or any amendments or supplements thereto, made in
reliance upon and in conformity with information relating to the
Underwriter furnished to the Company in writing by the Underwriter
expressly for use therein, it being understood and agreed that the
only such information furnished by the Underwriter to the Company
consists of the information described in Section 8(b) below. There
are no contracts or other documents required to be described in the
Time of Sale Prospectus or the Prospectus or to be filed as
exhibits to the Registration Statement which have not been
described or filed as required.
The Company meets,
and at the time the Registration Statement was originally declared
effective and at the time the Company’s Annual Report on Form
10-K for the year ended December 31, 2005 (the “ Annual
Report ”) was filed with the Commission the Company met,
the applicable requirements for use of Form S-3 under the
Securities Act. The Company meets the requirements for use of Form
S-3 under the Securities Act referenced in Conduct
Rule 2710(b)(7)(C)(i) of the National Association of
Securities Dealers Inc. (the “ NASD
”).
The documents
incorporated or deemed to be incorporated by reference in the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with
the applicable requirements of the Exchange Act, and, when read
together with the other information in the Prospectus, at the time
the Registration Statement and any amendments thereto become
effective and at the First Closing Date and the applicable Option
Closing Date, as the case may be, 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 facts
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
The Company is not
an “ineligible issuer” (as defined in Rule 405) in
connection with the offering of the Offered Shares pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free
writing prospectus that the Company is required to file pursuant to
Rule 433(d) under the Securities Act has been, or will be, filed
with the Commission in accordance with the requirements of the
Securities Act. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the
Securities Act or that was prepared by or on behalf of or used or
referred to by the Company complies or will comply in all material
respects with the requirements of the Securities Act, and each such
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 Shares did not, does not and will not include any
information that conflicted, conflicts with or will conflict with
the information contained in the Registration Statement, the Time
of Sale Prospectus or the Prospectus, including any document
incorporated by reference therein. Except for the free writing
prospectuses, if any, identified in Exhibit A hereto, the
Company has not prepared, used or referred to, and will
3
not, without
the Underwriter’s prior consent, prepare, use or refer to,
any free writing prospectus.
(b) Offering
Materials Furnished to Underwriter . The Company has delivered
to the Underwriter one complete manually signed copy of the
Registration Statement and each amendment thereto and of each
consent and certificate of experts filed as a part thereof, and
copies of the Time of Sale Prospectus, the Prospectus, as amended
or supplemented, and any free writing prospectus reviewed and
consented to by the Underwriter, in such quantities and at such
places as the Underwriter has reasonably requested.
(c)
Distribution of Offering Material By the Company . The
Company has not distributed and will not distribute, prior to the
later of (i) the expiration or termination of the option
granted to the Underwriter in Section 2 and (ii) the
completion of the Underwriter’s distribution of the Offered
Shares, any offering material in connection with the offering and
sale of the Offered Shares other than the Time of Sale Prospectus,
the Prospectus, any free writing prospectus reviewed and consented
to by the Underwriter or the Registration Statement.
(d) The
Underwriting Agreement . This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its
terms, except as rights to indemnification hereunder may be limited
by applicable law and except as the enforcement hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies
of creditors or by general equitable principles.
(e)
Authorization of the Offered Shares . The Offered Shares
have been duly authorized for issuance and sale pursuant to this
Agreement and, when issued and delivered by the Company pursuant to
this Agreement, will be validly issued, fully paid and
nonassessable, and the issuance and sale of the Offered Shares is
not subject to any preemptive rights, rights of first refusal or
other similar rights to subscribe for or purchase the Offered
Shares. The Offered Shares will conform to the description thereof
in the Time of Sale Prospectus and the Prospectus.
(f) No
Applicable Registration or Other Similar Rights . There are no
persons with registration or other similar rights to have any
equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by
this Agreement.
(g) No Material
Adverse Change . Except as otherwise disclosed in the Time of
Sale Prospectus, subsequent to the respective dates as of which
information is given in Time of Sale Prospectus: (i) there has
been no material adverse change, or any development that could
reasonably be expected to result in a material adverse change, in
the condition, financial or otherwise, or in the earnings,
business, vessel fleet, operations or prospects, whether or not
arising from transactions in the ordinary course of business, of
the Company and its subsidiaries, considered as one entity (any
such change is called a “ Material Adverse Change
”); (ii) the Company and its subsidiaries, considered as
one entity, have not incurred any material liability or obligation,
indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not
in the ordinary course of business; and (iii) there has been
no dividend or distribution of any kind declared, paid or made by
the Company or, except for dividends paid to the Company or other
subsidiaries, any of its subsidiaries on any class of capital stock
or repurchase or redemption by the Company or any of its
subsidiaries of any class of capital stock.
4
(h) Independent
Accountants . Each of UHY Mann Frankfort Stein & Lipp CPAs,
LLP and Ernst & Young LLP, who have expressed their opinion
with respect to certain of the financial statements (which term as
used in this Agreement includes the related notes thereto) filed
with the Commission as a part of the Registration Statement and
included in the Prospectus and Time of Sale Prospectus (each, an
“ Applicable Prospectus ” and collectively, the
“ Applicable Prospectuses ”), are
(i) independent public or certified public accountants as
required by the Securities Act and the Exchange Act, (ii) in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of
Regulation S-X and (iii) a registered public accounting
firm as defined by the Public Company Accounting Oversight Board
(the “ PCAOB ”) whose registration has not been
suspended or revoked and who has not requested such registration to
be withdrawn.
(i) Preparation
of the Financial Statements . The financial statements filed
with the Commission as a part of the Registration Statement and
included in the Time of Sale Prospectus and the Prospectus present
fairly the consolidated financial position of the Company and its
subsidiaries as of and at the dates indicated and the results of
their operations and cash flows for the periods specified. Such
financial statements have been prepared in conformity with
generally accepted accounting principles as applied in the United
States applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes
thereto. No other financial statements or supporting schedules are
required to be included in the Registration Statement or any
Applicable Prospectus. The financial data set forth in each
Applicable Prospectus under the captions “Selected
Consolidated Financial and Operating Data” and
“Capitalization” fairly present the information set
forth therein on a basis consistent with that of the audited
financial statements contained in the Registration Statement and
each Applicable Prospectus. The Company’s ratios of earnings
to fixed charges set forth in the Prospectus and in
Exhibit 12.1 to the Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K
under the Securities Act. No person who has been suspended or
barred from being associated with a registered public accounting
firm, or who has failed to comply with any sanction pursuant to
Rule 5300 promulgated by the PCAOB, has participated in or
otherwise aided the preparation of, or audited, the financial
statements, supporting schedules or other financial data filed with
the Commission as a part of the Registration Statement and included
in any Applicable Prospectus.
(j)
Company’s Accounting System . The Company and each of
its subsidiaries make and keep accurate books and records and
maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles as applied in the United
States and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences. Except as described in the Time of Sale
Prospectus and the Prospectus, there has not been and is no
material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and since
December 31, 2005, there has been no change in the
Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial
reporting.
(k)
Incorporation and Good Standing of the Company and its
Subsidiaries . Each of the Company and its subsidiaries has
been duly incorporated or organized, as the case may be,
5
and is validly
existing as an entity in good standing under the laws of the
jurisdiction of its incorporation or organization and has the power
and authority (corporate or other) to own, lease and operate its
properties and to conduct its business as described in each
Applicable Prospectus and, in the case of the Company, to enter
into and perform its obligations under this Agreement. Each of the
Company and each of its subsidiaries is duly qualified as a foreign
entity to transact business and is in good standing, where
applicable, in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except any such failures to be in good
standing as would not, singly or in the aggregate, result in a
Material Adverse Change. All of the issued and outstanding capital
stock or other equity or ownership interests of each subsidiary
have been duly authorized and validly issued, are fully paid and
nonassessable and are owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or adverse claim. The Company does not
own or control, directly or indirectly, any corporation,
association or other entity other than (i) the Designated
Subsidiaries (as defined in Exhibit D hereto) and
(ii) such other entities which, when such entities are
considered in the aggregate as a single subsidiary, would not
constitute a “significant subsidiary” within the
meaning of Rule 1-02(w) of Regulation S-X.
(l)
Capitalization and Other Capital Stock Matters . The
authorized, issued and outstanding capital stock of the Company is
as set forth in each Applicable Prospectus under the caption
“Capitalization” (other than for subsequent issuances,
if any, pursuant to employee benefit plans described in the Time of
Sale Prospectus or upon the exercise of outstanding options
described in each Applicable Prospectus). The Shares (including the
Offered Shares) conform in all material respects to the description
thereof contained in the Time of Sale Prospectus. All of the issued
and outstanding Shares have been duly authorized and validly
issued, are fully paid and nonassessable and have been issued in
compliance with federal and state securities laws. None of the
outstanding Shares was issued in violation of any preemptive
rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company. There are no
authorized or outstanding options, warrants, preemptive rights,
rights of first refusal or other rights to purchase, or equity or
debt securities convertible into or exchangeable or exercisable
for, any capital stock of the Company or any of its subsidiaries
other than those accurately described in each Applicable
Prospectus. The Company has not sold or issued any Shares during
the six-month period preceding the date of the Time of Sale
Prospectus, including any sales pursuant to Rule 144A under,
or Regulations D or S of, the Securities Act other than Shares
issued pursuant to registration statements on Form S-8 relating to
employee benefit plans, employee stock purchase plans, qualified
stock option plans or other employee compensation plans or pursuant
to outstanding options. The description of the Company’s
stock option, stock bonus and other stock plans or arrangements,
and the options or other rights granted thereunder, set forth in
each Applicable Prospectus accurately and fairly presents the
information required to be shown with respect to such plans,
arrangements, options and rights.
(m) Stock
Exchange Listing . The Shares are registered pursuant to
Section 12(b) of the Exchange Act. The Company has submitted a
listing application for the listing of the Offered Shares on the
NASDAQ Global Select Market, and the Offered Shares will be
approved for listing on the NASDAQ Global Select Market as of the
First Closing Date, subject only to official notice of issuance.
The Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Shares under the
Exchange Act or the delisting of any of the outstanding Shares or
the Offered Shares from the NASDAQ Global Select Market, nor has
the Company received any notification that the Commission or the
NASDAQ Global Select Market is contemplating terminating such
registration or listing.
6
(n)
Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required . Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws,
partnership agreement or operating agreement or similar
organizational document, as applicable, or is in default (or, with
the giving of notice or lapse of time, would be in default)
(“ Default ”) under any indenture, mortgage,
loan or credit agreement, note, contract, franchise, lease or other
instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound (including any
credit agreement, indenture, pledge agreement, security agreement
or other instrument or agreement evidencing, guaranteeing, securing
or relating to indebtedness of the Company or any of its
subsidiaries), or to which any of the property or assets of the
Company or any of its subsidiaries is subject (each, an “
Existing Instrument ”), except for such Defaults as
would not, individually or in the aggregate, result in a Material
Adverse Change. The Company’s execution, delivery and
performance of this Agreement, consummation of the transactions
contemplated hereby and by each Applicable Prospectus and the
issuance and sale of the Offered Securities (i) have been duly
authorized by all necessary corporate action and will not result in
any violation of the provisions of the charter or by-laws,
partnership agreement or operating agreement or similar
organizational document of the Company or any subsidiary, as
applicable, (ii) will not conflict with or constitute a breach
of, or Default or a Debt Repayment Triggering Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, or require the consent of any
other party to, any Existing Instrument and (iii) will not
result in any violation of any law, administrative regulation or
administrative or court decree applicable to the Company or any
subsidiary. No consent, approval, authorization or other order of,
or registration or filing with, any court or other governmental or
regulatory authority or agency, is required for the Company’s
execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by each
Applicable Prospectus, except such as have been obtained or made by
the Company and are in full force and effect under the Securities
Act, applicable state securities or blue sky laws and from the
NASD. As used herein, a “ Debt Repayment Triggering
Event ” means any event or condition which gives, or with
the giving of notice or lapse of time would give, the holder of any
note, debenture or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(o) No Material
Actions or Proceedings . There are no legal or governmental
actions, suits or proceedings pending or, to the Company’s
knowledge, threatened (i) against or affecting the Company or
any of its subsidiaries, (ii) which have as the subject
thereof any officer or director of, or property owned or leased by,
the Company or any of its subsidiaries or (iii) relating to
environmental or discrimination matters, where in any such case
there is a reasonable possibility that such action, suit or
proceeding might be determined adversely to the Company, such
subsidiary or such officer or director, and (A) any such
action, suit or proceeding, if so determined adversely, would
reasonably be expected to result in a Material Adverse Change or
adversely affect the consummation of the transactions contemplated
by this Agreement or (B) any such action, suit or proceeding,
if so determined adversely, would be material in the context of the
sale of Shares. No material labor dispute with the employees of the
Company or any of its subsidiaries, or with the employees of any
principal supplier, manufacturer, customer or contractor of the
Company, exists or, to the Company’s knowledge, is threatened
or imminent.
(p)
Intellectual Property Rights . The Company and its
subsidiaries own or possess sufficient trademarks, trade names,
patent rights, copyrights, domain names, licenses,
7
approvals,
trade secrets and other similar rights (collectively, “
Intellectual Property Rights ”) reasonably necessary
to conduct their businesses as now conducted; and the expected
expiration of any of such Intellectual Property Rights would not
result in a Material Adverse Change. Neither the Company nor any of
its subsidiaries has received, or expects to receive, any notice of
infringement or conflict with asserted Intellectual Property Rights
of others. The Company is not a party to or bound by any options,
licenses or agreements with respect to the Intellectual Property
Rights of any other person or entity that are required to be set
forth in the Prospectus and are not described therein. (The Time of
Sale Prospectus contains in all material respects the same
description of the matters set forth in the preceding sentence
contained in the Prospectus.) None of the technology employed by
the Company or any of its subsidiaries has been obtained or is
being used by the Company or any of its subsidiaries in violation
of any contractual obligation binding on the Company or any of its
subsidiaries or, to the Company’s knowledge, any of its or
its subsidiaries’ officers, directors or employees or
otherwise in violation of the rights of any persons.
(q) All
Necessary Permits, etc. The Company and each of its
subsidiaries possess such valid and current certificates,
authorizations or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct their
respective businesses, and neither the Company nor any such
subsidiary has received, or has any reason to believe that it will
receive, any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such certificate,
authorization or permit.
(r) Title to
Properties . The Company and each of its subsidiaries has good
and marketable title to all of the real and personal property and
other assets reflected as owned in the financial statements
referred to in Section 1(i) above, in each case free and clear of
any security interests, mortgages, liens, encumbrances, equities,
adverse claims and other defects, except for those provided for in
the senior financing arrangements of the Company or its
subsidiaries on customary business terms and such as do not
materially and adversely affect the value of such property and do
not materially interfere with the use made or proposed to be made
of such property by the Company or such subsidiary. The real
property, improvements, equipment and personal property held under
lease by the Company or any subsidiary are held under valid and
enforceable leases, with such exceptions as are not material and do
not materially interfere with the use made or proposed to be made
of such real property, improvements, equipment or personal property
by the Company or such subsidiary.
(s) Tax Law
Compliance . The Company and its subsidiaries have timely filed
all necessary federal, state and foreign income and franchise tax
returns and have timely paid all taxes required to be paid by any
of them and, if due and payable, any related or similar assessment,
fine or penalty levied against any of them except as may be being
contested in good faith and by appropriate proceedings and except,
in the case of GulfMark North Sea Limited and Gulf Offshore N.S.
Limited, where statutory accounts have been filed and the expected
tax liability has been prepaid. The Company has made adequate
charges, accruals and reserves in the applicable financial
statements referred to in Section 1(i) above in respect of all
federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Company or any of its
subsidiaries has not been finally determined.
(t) Company Not
an “Investment Company" . The Company has been advised of
the rules and requirements under the Investment Company Act of
1940, as amended (the “ Investment Company Act
”). The Company is not, and will not be, either after receipt
of payment for the Offered Shares or after the application of the
proceeds therefrom as described under “Use of Proceeds”
in each Applicable Prospectus, an “
investment
8
company ” within the meaning of Investment Company
Act and will conduct its business in a manner so that it will not
become subject to the Investment Company Act.
(u)
Insurance . Each of the Company and its subsidiaries are
insured by recognized, financially sound and reputable institutions
with policies in such amounts and with such deductibles and
covering such risks as are generally deemed adequate and customary
for their businesses, including policies covering real and personal
property owned or leased by the Company and its subsidiaries
against theft, damage, destruction, acts of vandalism and storms
and other acts of nature, and policies covering pollution caused by
the Company or any of its subsidiaries. The Company has no reason
to believe that it or any subsidiary will not be able (i) to
renew its existing insurance coverage as and when such policies
expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its
business as now conducted and at a cost that would not result in a
Material Adverse Change. Neither of the Company nor any subsidiary
has been denied any insurance coverage which it has sought or for
which it has applied.
(v) No Price
Stabilization or Manipulation; Compliance with
Regulation M . The Company has not taken, directly or
indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the
price of the Shares or any other “ reference security
” (as defined in Rule 100 of Regulation M under the
Exchange Act ( “Regulation M” )), whether
to facilitate the sale or resale of the Offered Shares or
otherwise, and has taken no action which would directly or
indirectly violate Regulation M. The Company acknowledges that
the Underwriter may engage in passive market making transactions in
the Offered Shares on the NASDAQ Global Select Market in accordance
with Regulation M.
(w) Related
Party Transactions . There are no business relationships or
related-party transactions involving the Company or any of its
subsidiaries or any other person required to be described in the
Time of Sale Prospectus which have not been described as
required.
(x) NASD
Matters . All of the information provided to the Underwriter or
to counsel for the Underwriter by the Company, its officers and
directors and the holders of any securities (debt or equity) or
options to acquire any securities of the Company in connection with
letters, filings or other supplemental information provided to NASD
Regulation Inc. pursuant to NASD Conduct Rule 2710 or
2720 is true, complete and correct.
(y) Parties to
Lock-Up Agreements . Each of the persons and entities listed in
Exhibit B, which list comprises all of the directors and
officers of the Company, has executed and delivered to the
Underwriter a lock-up agreement in the form of Exhibit C
hereto. If any additional persons shall become directors or
officers of the Company prior to the end of the Company Lock-up
Period (as defined below), the Company shall cause each such
person, prior to or contemporaneously with their appointment or
election as a director or officer of the Company, to execute and
deliver to the Underwriter an agreement in the form attached hereto
as Exhibit C.
(z) Statistical
and Market-Related Data . The statistical, demographic and
market-related data included in the Registration Statement and each
Applicable Prospectus are based on or derived from sources that the
Company believes to be reliable and accurate or represent the
Company’s good faith estimates that are made on the basis of
data derived from such sources.
9
(aa) No
Unlawful Contributions or Other Payments . Neither the Company
nor any of its subsidiaries nor, to the Company’s knowledge,
any employee or agent of the Company or any subsidiary, has made
any contribution or other payment to any official of, or candidate
for, any federal, state or foreign office in violation of any law
or of the character required to be disclosed in the Registration
Statement and each Applicable Prospectus.
(bb) Disclosure
Controls and Procedures; Deficiencies in or Changes to Internal
Control Over Financial Reporting. The Company has established
and maintains disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)), which
(i) are designed to ensure that material information relating
to the Company, including its consolidated subsidiaries, is made
known to the Company’s principal executive officer and its
principal financial officer by others within those entities,
particularly during the periods in which the periodic reports
required under the Exchange Act are being prepared; (ii) have
been evaluated by management of the Company for effectiveness as of
a date within 90 days prior to the earlier of the date that
the Company filed its most recent annual or quarterly report with
the Commission and the date of the Time of Sale Prospectus; and
(iii) are effective in all material respects to perform the
functions for which they were established. Based on the most recent
evaluation of its disclosure controls and procedures, the Company
is not aware of (A) any significant deficiencies or material
weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect
the Company’s ability to record, process, summarize and
report financial information or (B) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the Company’s internal control over
financial reporting.
(cc) Compliance
with Environmental Laws . Except as described in each
Applicable Prospectus and except as would not, singly or in the
aggregate, result in a Material Adverse Change, (i) neither
the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including
ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, “ Hazardous
Materials ”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, “
Environmental Laws ”), (ii) the Company and its
subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (iii) there are no pending
or, to the knowledge of the Company, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (iv) there are no
events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action,
suit or proceeding by any private party or governmental body or
agency, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental
Laws.
(dd) ERISA
Compliance . The Company and its subsidiaries and any “
employee benefit plan ” (as defined under the Employee
Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively,
“ ERISA ”)) established or maintained by the
Company, its subsidiaries or their “ ERISA Affiliates
” (as
10
defined below)
are in compliance in all material respects with ERISA. “
ERISA Affiliate ” means, with respect to the Company
or a subsidiary, any member of any group of organizations described
in Sections 414(b),(c),(m) or (o) of the Internal Revenue
Code of 1986, as amended, and the regulations and published
interpretations thereunder (the “ Code ”) of
which the Company or such subsidiary is a member. No “
reportable event ” (as defined under ERISA) has
occurred or is reasonably expected to occur with respect to any
“ employee benefit plan ” established or
maintained by the Company, its subsidiaries or any of their ERISA
Affiliates. No “ employee benefit plan ”
established or maintained by the Company, its subsidiaries or any
of their ERISA Affiliates, if such “ employee benefit
plan ” were terminated, would have any “ amount
of unfunded benefit liabilities ” (as defined under
ERISA), except for any such liabilities as would not, singly or in
the aggregate, have a Material Adverse Change. Neither the Company,
its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any
“ employee benefit plan ” or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each
“ employee benefit plan ” established or
maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of
the Code is so qualified and nothing has occurred, whether by
action or failure to act, which would cause the loss of such
qualification.
(ee)
Brokers . Except for the underwriting discounts and
commissions payable to the Underwriter as described in the Time of
Sale Prospectus and the Prospectus, there is no broker, finder or
other party that is entitled to receive from the Company any
brokerage or finder’s fee or other fee or commission as a
result of any transactions contemplated by this
Agreement.
(ff) No
Outstanding Loans or Other Extensions of Credit. Since the
adoption of Section 13(k) of the Exchange Act, neither the Company
nor any of its subsidiaries has extended or maintained credit,
arranged for the extension of credit, or renewed any extension of
credit, in the form of a personal loan, to or for any director or
executive officer (or equivalent thereof) of the Company and/or
such subsidiary except for such extensions of credit as are
expressly permitted by Section 13(k) of the Exchange
Act.
(gg) Compliance
with Laws. The Company has not been advised, and has no reason
to believe, that it and each of its subsidiaries are not conducting
business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which it is conducting
business, except where failure to be so in compliance would not
result in a Material Adverse Change.
(hh) Dividend
Restrictions. Except as disclosed in the Time of Sale
Prospectus and the Prospectus, no subsidiary of the Company is
prohibited or restricted in any material respect, directly or
indirectly, from paying dividends to the Company, or from making
any other distribution with respect to such subsidiary’s
equity securities or from repaying to the Company or any other
subsidiary of the Company any amounts that may from time to time
become due under any loans or advances to such subsidiary from the
Company or from transferring any property or assets to the Company
or to any other subsidiary.
(ii) Foreign
Corrupt Practices Act. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee, affiliate or other person acting on
behalf of the Company or any of its subsidiaries is aware of or has
taken any action, directly or indirectly, that has resulted or
would result in a violation of the Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder
(the
11
“
FCPA ”), including making use of the mails or any
means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to
give, or authorization of the giving of anything of value to any
“ foreign official ” (as such term is defined in
the FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA; and the Company and its subsidiaries and, to the knowledge of
the Company, the Company’s affiliates have conducted their
respective businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure,
and which are reasonably expected to continue to ensure, continued
compliance therewith .
(jj) Money
Laundering Laws. The operations of the Company and its
subsidiaries are, and have been conducted at all times, in
compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and
any related or similar applicable rules, regulations or guidelines,
issued, administered or enforced by any governmental agency
(collectively, the “ Money Laundering Laws ”),
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 Money
Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(kk) OFAC.
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee,
affiliate or person acting on behalf of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“ OFAC ”); and the Company
will not directly or indirectly use the proceeds of this offering,
or lend, contribute or otherwise make available such proceeds to
any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
Any certificate
signed by any officer of the Company or any of its subsidiaries and
delivered to the Underwriter or to counsel for the Underwriter
shall be deemed a representation and warranty by the Company to the
Underwriter as to the matters covered thereby.
The Company
acknowledges that the Underwriter and, for purposes of the opinions
to be delivered pursuant to Section 6 hereof, counsel to the
Company and counsel to the Underwriter, will rely upon the accuracy
and truthfulness of the foregoing representations and hereby
consents to such reliance.
Section 2. Purchase, Sale and Delivery of the Offered
Shares .
(a) The Firm
Shares . Upon the terms herein set forth, the Company agrees to
issue and sell to the Underwriter an aggregate of 2,000,000 Firm
Shares. On the basis of the representations, warranties and
agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Underwriter agrees to purchase
from the Company all of the Firm Shares. The purchase price to be
paid by the Underwriter to the Company for the Firm Shares shall be
$38.50 per share.
12
(b) The First
Closing Date . Delivery of certificates for the Firm Shares to
be purchased by the Underwriter and payment therefor shall be made
at the offices of Baker Botts L.L.P., One Shell Plaza, 910
Louisiana Street, Houston, Texas 77002 (or such other place as may
be agreed to by the Company and the Underwriter) at 9:00 a.m. New
York time, on December 7, 2006 or such other time and date as
shall be agreed upon by the Underwriter and the Company (the time
and date of such closing are called the “ First Closing
Date ”). The Company hereby acknowledges that
circumstances under which the Underwriter may provide notice to
postpone the First Closing Date as originally scheduled include,
but are in no way limited to, any determination by the Company or
the Underwriter to recirculate to the public copies of an amended
or supplemented Prospectus.
(c) The
Optional Shares; Option Closing Date . In addition, on the
basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein
set forth, the Company hereby grants an option to the Underwriter
to purchase up to an aggregate of 300,000 Optional Shares from the
Company at the purchase price per share to be paid by the
Underwriter for the Firm Shares. The option granted hereunder is
for use by the Underwriter solely in covering any over-allotments
in connection with the sale and distribution of the Firm Shares.
The option granted hereunder may be exercised at any time and from
time to time in whole or in part upon notice by the Underwriter to
the Company, which notice may be given at any time within
30 days from the date of this Agreement. Such notice shall set
forth (i) the aggregate number of Optional Shares as to which
the Underwriter is exercising the option, (ii) the names and
denominations in which the Optional Shares are to be registered and
(iii) the time, date and place at which such Optional Shares
will be delivered (which time and date may be simultaneous with,
but not earlier than, the First Closing Date; and in such case the
term “ First Closing Date ” shall refer to the
time and date of delivery of certificates for the Firm Shares and
such Optional Shares). Such time and date of delivery, if
subsequent to the First Closing Date, is called an “
Option Closing Date ” and shall be determined by the
Underwriter and shall not be earlier than three nor later than five
full business days after delivery of such notice of exercise. The
Underwriter may cancel the option at any time prior to its
expiration by giving written notice of such cancellation to the
Company.
(d) Public
Offering of the Offered Shares . The Underwriter hereby advises
the Company that it intends to offer for sale to the public,
initially on the terms set forth in the Time of Sale Prospectus and
the Prospectus, the Offered Shares as soon after this Agreement has
been executed as the Underwriter, in its sole judgment, has
determined is advisable and practicable.
(e) Payment for
the Offered Shares . Payment for the Offered Shares shall be
made at the First Closing Date (and, if applicable, at each Option
Closing Date) by wire transfer of immediately available funds to
the order of the Company.
(f) Delivery of
the Offered Shares . The Company, through the facilities of
DTC, shall deliver, or cause to be delivered, to the Underwriter
the Firm Shares at the First Closing Date, against the irrevocable
release of a wire transfer of immediately available funds for the
amount of the purchase price therefor. The Company, through the
facilities of DTC, shall also deliver, or cause to be delivered, to
the Underwriter the Optional Shares the Underwriter has agreed to
purchase at the First Closing Date or the applicable Option Closing
Date, as the case may be, against the irrevocable release of a
wire
|
