Energy XXI (Bermuda) Limited 12,000,000 Shares Common Stock ($.005 par value per Share) Underwriting Agreement October 28, 2010
Execution
Version
Energy
XXI (Bermuda) Limited
12,000,000
Shares
Common
Stock
($.005
par value per Share)
October
28, 2010
October
28, 2010
UBS
Securities LLC
Credit
Suisse Securities (USA) LLC
as representatives of the several
underwriters
listed
on Schedule A hereto
c/o UBS
Securities LLC
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▇▇▇ ▇▇▇▇,
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Ladies
and Gentlemen:
Energy
XXI (Bermuda) Limited, a limited exempt company organized under the laws of
Bermuda (the “Company”), proposes
to issue and sell to the underwriters named in Schedule A annexed
hereto (the “Underwriters”), for
whom you are acting as representatives, an aggregate of 12,000,000 shares (the
“Firm Shares”)
of common stock, $.005 par value per share (the “Common Stock”), of
the Company. In addition, solely for the purpose of covering over-allotments,
the Company proposes to the Underwriters the option to purchase from the Company
up to an additional 1,800,000 shares of Common Stock (the “Additional Shares”).
The Firm Shares and the Additional Shares are hereinafter collectively sometimes
referred to as the “Shares.” In addition
to the issuance and sale of the Shares to the Underwriters, the Company intends
to simultaneously issue and sell 1,000,000 shares of Convertible Perpetual
Preferred Stock, $.001 par value per share (the “Preferred Stock”).
The Shares are described in the Prospectus, which is referred to
below.
The Company has prepared and filed, in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations thereunder (collectively, the “Act”), with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (File No. 333-165739) under the Act (the
“registration
statement”), including a prospectus, which registration statement
incorporates by reference documents which the Company has filed, or will file,
in accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the “Exchange Act”).
Amendments to such registration statement, if necessary or appropriate, have
been similarly prepared and filed with the Commission in accordance with the
Act. Such registration statement, as so amended, has become effective under the
Act.
Except where the context otherwise
requires, “Registration
Statement,” as used herein, means the registration statement, as amended
at the time of such registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to the respective Underwriters
(the “Effective
Time”), including (i) all documents filed as a part thereof or
incorporated or deemed to be incorporated by reference therein, (ii) any
information contained or incorporated by reference in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, to the extent such
information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be
part of the registration statement at the Effective Time, and (iii) any
registration statement filed to register the offer and sale of Shares pursuant
to Rule 462(b) under the Act.
The
Company has furnished to you, for use by the Underwriters and by dealers in
connection with the offering of the Shares, copies of one or more preliminary
prospectus supplements, and the documents incorporated by reference therein,
relating to the Shares. Except where the context otherwise requires,
“Pre-Pricing
Prospectus,” as used herein, means each such preliminary prospectus
supplement, in the form so furnished, including any basic prospectus (whether or
not in preliminary form) furnished to you by the Company and attached to or used
with such preliminary prospectus supplement. Except where the context
otherwise requires, “Basic Prospectus,” as
used herein, means any such basic prospectus and any basic prospectus furnished
to you by the Company and attached to or used with the Prospectus Supplement (as
defined below).
Except where the context otherwise
requires, “Prospectus
Supplement,” as used herein, means the final prospectus supplement,
relating to the Shares, filed by the Company with the Commission pursuant to
Rule 424(b) under the Act on or before the second business day after the date
hereof (or such earlier time as may be required under the Act), in the form
furnished by the Company to you for use by the Underwriters and by dealers in
connection with the offering of the Shares.
Except where the context otherwise
requires, “Prospectus,” as used
herein, means the Prospectus Supplement together with the Basic Prospectus
attached to or used with the Prospectus Supplement.
“Applicable Time” as
used herein, means the date and time that this Agreement is executed and
delivered by the parties hereto.
“Covered Free Writing
Prospectuses,” as used herein, means (i) each “issuer free writing
prospectus” (as defined in Rule 433(h)(1) under the Act), if any, relating to
the Shares, which is not a Permitted Free Writing Prospectus and (ii) each
Permitted Free Writing Prospectus.
“Disclosure Package,”
as used herein, means any Pre-Pricing Prospectus or Basic Prospectus, in either
case together with any combination of one or more of the Permitted Free Writing
Prospectuses, if any.
“Permitted Free Writing
Prospectuses,” as used herein, means the documents listed on Schedule B attached
hereto and each “road show” (as defined in Rule 433 under the Act), if any,
related to the offering of the Shares contemplated hereby that is a “written
communication” (as defined in Rule 405 under the Act). The
Underwriters have not offered or sold and will not offer or sell, without the
Company’s consent, any Shares by means of any “free writing prospectus” (as
defined in Rule 405 under the Act) that is required to be filed by the
Underwriters with the Commission pursuant to Rule 433 under the Act, other than
a Permitted Free Writing Prospectus.
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Any reference herein to the
registration statement, the Registration Statement, any Basic Prospectus, any
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and include the
documents, if any, incorporated by reference, or deemed to be incorporated by
reference, therein (the “Incorporated
Documents”), including, unless the context otherwise requires, the
documents, if any, filed as exhibits to such Incorporated
Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement, any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free
Writing Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act on or after the initial effective date of the
Registration Statement, or the date of such Basic Prospectus, such Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or such Permitted Free
Writing Prospectus, as the case may be, and deemed to be incorporated therein by
reference.
As used in this Agreement, “business day” shall
mean a day on which the New York Stock Exchange (the “NYSE”) is open for
trading. The terms “herein,” “hereof,” “hereto,” “hereinafter” and
similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence or
other subdivision of this Agreement. The term “or,” as used herein,
is not exclusive.
The Company and the Underwriters agree
as follows:
1. Sale and
Purchase. Upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule A attached
hereto, subject to adjustment in accordance with Section 8 hereof, in each case
at a purchase price of $19.765 per Share. The Company is advised by
you that the Underwriters intend (i) to make a public offering of their
respective portions of the Firm Shares as soon after the effectiveness of this
Agreement as in your judgment is advisable and (ii) initially to offer the Firm
Shares upon the terms set forth in the Prospectus. You may from time
to time increase or decrease the public offering price after the initial public
offering to such extent as you may determine.
In
addition, the Company hereby grants to the several Underwriters the option (the
“Over-Allotment
Option”) to purchase, and upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not jointly, from
the Company, ratably in accordance with the number of Firm Shares to be
purchased by each of them, all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the Underwriters
to the Company for the Firm Shares. The Over-Allotment Option may be
exercised by UBS Securities LLC (“UBS”) and Credit
Suisse Securities (USA) LLC (“Credit Suisse”) on
behalf of the several Underwriters at any time and from time to time on or
before the thirtieth day following the date of the Prospectus Supplement, by
written notice to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the Over-Allotment Option is
being exercised and the date and time when the Additional Shares are to be
delivered (any such date and time being herein referred to as an “additional time of
purchase”); provided, however, that no
additional time of purchase shall be earlier than the “time of purchase” (as
defined below) nor earlier than the second business day after the date on which
the Over-Allotment Option shall have been exercised nor later than the tenth
business day after the date on which the Over-Allotment Option shall have been
exercised. The number of Additional Shares to be sold to each
Underwriter shall be the number which bears the same proportion to the aggregate
number of Additional Shares being purchased as the number of Firm Shares set
forth opposite the name of such Underwriter on Schedule A hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as UBS and Credit Suisse may determine to eliminate fractional
Shares), subject to adjustment in accordance with Section 8
hereof.
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2. Payment and
Delivery. Payment of the purchase price for the Firm Shares
shall be made to the Company by Federal Funds wire transfer against delivery of
the certificates for the Firm Shares to you through the facilities of The
Depository Trust Company (“DTC”) for the
respective accounts of the Underwriters. Such payment and delivery
shall be made at 10:00 A.M., New York City time, on November 3, 2010
(unless another time shall be agreed to by you and the Company or unless
postponed in accordance with the provisions of Section 8 hereof). The
time at which such payment and delivery are to be made is hereinafter sometimes
called the “time of
purchase.” Electronic transfer of the Firm Shares shall be
made to you at the time of purchase in such names and in such denominations as
you shall specify.
Payment of the purchase price for the
Additional Shares shall be made at the additional time of purchase in the same
manner and at the same office and time of day as the payment for the Firm
Shares. Electronic transfer of the Additional Shares shall be made to
you at the additional time of purchase in such names and in such denominations
as you shall specify.
Deliveries of the documents described
in Section 6 hereof with respect to the purchase of the Shares shall be made at
the offices of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. at ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, at
10:00 A.M., New York City time, on the date of the closing of the purchase of
the Firm Shares or the Additional Shares, as the case may be.
3. Representations and
Warranties of the Company. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) Registration. The
Registration Statement has heretofore become effective under the Act; no stop
order of the Commission preventing or suspending the use of any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the
Registration Statement, has been issued, and no proceedings for such purpose
have been instituted or, to the Company’s knowledge, are contemplated by the
Commission.
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(b) Form of Documents; No Material
Misstatements or Omissions. The Registration Statement
complied when it became effective, complies as of the date hereof and, as
amended or supplemented, at the time of purchase, each additional time of
purchase, if any, and at all times during which a prospectus is required by the
Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares, will
comply, in all material respects, with the requirements of the Act; the
conditions to the use of Form S-3 in connection with the offering and sale of
the Shares as contemplated hereby have been satisfied; the Registration
Statement constitutes an “automatic shelf registration statement” (as defined in
Rule 405 under the Act); the Company has not received, from the Commission, a
notice, pursuant to Rule 401(g)(2), of objection to the use of the automatic
shelf registration statement form; as of the determination date applicable to
the Registration Statement (and any amendment thereof) and the offering
contemplated hereby, and as of each time, if any, an “offer by or on behalf of”
(within the meaning of Rule 163 under the Act) the Company was made prior to the
initial filing of the Registration Statement, the Company is and was a
“well-known seasoned issuer” as defined in Rule 405 under the Act; the
Registration Statement meets, and the offering and sale of the Shares as
contemplated hereby complies with, the requirements of Rule 415 under the Act
(including, without limitation, Rule 415(a)(5) under the Act); the Registration
Statement did not, as of the Effective Time, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; each Pre-Pricing
Prospectus complied, at the time it was filed with the Commission, and complies
as of the date hereof, in all material respects with the requirements of the
Act; at the Applicable Time, at the time of purchase and each additional time of
purchase, if any, the Disclosure Package (together with the public offering
price per Share, number of Firm Shares and number of Additional Shares) does not
include an 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; each Basic Prospectus
complied or will comply, as of its date, the date it was or will be filed with
the Commission, as of the date hereof (if filed with the Commission on or prior
to the date hereof), at the time of purchase, each additional time of purchase,
if any, and at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, in all material
respects, with the requirements of the Act; each of the Prospectus Supplement
and the Prospectus will comply, as of the date that it is filed with the
Commission, the date of the Prospectus Supplement, the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale of
Shares, in all material respects, with the requirements of the Act (in the case
of the Prospectus, including, without limitation, Section 10(a) of the Act); on
the date of the Prospectus Supplement and the date the Prospectus Supplement is
filed with the Commission and at the time of purchase, each additional purchase,
if any, and the end of the period during which a prospectus is required by the
Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares the
Prospectus, as then amended or supplemented, will not include an 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; each Permitted Free Writing Prospectus, when
considered together with the Disclosure Package (together with the public
offering price per share, the number of Firm Shares and the number of Additional
Shares) as of the Applicable Time, does not include an 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; provided, however, that the
Company makes no representation or warranty in this Section 3(b) with respect to
any statement contained in the Registration Statement, any Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance
upon and in conformity with information concerning an Underwriter and furnished
in writing by or on behalf of such Underwriter through you to the Company
expressly for use in the Registration Statement, such Pre-Pricing Prospectus,
the Prospectus or such Permitted Free Writing Prospectus; each Incorporated
Document, at the time such document was filed, or will be filed, with the
Commission or at the time such document became or becomes effective, as
applicable, complied or will comply, in all material respects, with the
requirements of the Exchange Act and did not or will not, as applicable, include
an 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.
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(c) Offering
Material. Prior to the execution of this Agreement, the
Company has not, directly or indirectly, offered or sold any Shares by means of
any “prospectus” (within the meaning of the Act) or used any “prospectus”
(within the meaning of the Act) in connection with the offer or sale of the
Shares, in each case other than the Pre-Pricing Prospectuses and the Permitted
Free Writing Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus except in
compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that
such Permitted Free Writing Prospectus is so sent or given after the
Registration Statement was filed with the Commission (and after such Permitted
Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act,
filed with the Commission), the sending or giving, by any Underwriter, of any
Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 and
Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the
conditions set forth in one or more of subclauses (i) through (iv), inclusive,
of Rule 433(b)(1) under the Act are satisfied, and the registration statement
relating to the offering of the Shares contemplated hereby, as initially filed
with the Commission, includes a prospectus that, other than by reason of Rule
433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the
Act; neither the Company nor the Underwriters are disqualified, by reason of
subsection (f) or (g) of Rule 164 under the Act, from using, in connection with
the offer and sale of the Shares, “free writing prospectuses” (as defined in
Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; the Company
is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the
eligibility determination date for purposes of Rules 164 and 433 under the Act
with respect to the offering of the Shares contemplated by the Registration
Statement, without taking into account any determination by the Commission
pursuant to Rule 405 under the Act that it is not necessary under the
circumstances that the Company be considered an “ineligible issuer”; the parties
hereto agree and understand that the content of any and all “road shows” (as
defined in Rule 433 under the Act) related to the offering of the Shares
contemplated hereby is solely the property of the Company.
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(d) FINRA
Exemption. In accordance with Conduct Rule 5110(b)(7)(C)(i) of
the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Shares have
been registered with the Commission on Form S-3 under the Act pursuant to the
standards for such Form S-3 in effect prior to October 21, 1992.
(e) Capitalization. As
of the date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the sections of the Registration Statement, the
Pre-Pricing Prospectuses and the Prospectus entitled “Capitalization” and
“Description of Capital Stock” (and any similar sections or information, if any,
contained in any Permitted Free Writing Prospectus), and, as of the time of
purchase and any additional time of purchase, as the case may be, the Company
shall have an authorized and outstanding capitalization as set forth in the
sections of the Registration Statement, the Pre-Pricing Prospectuses and the
Prospectus entitled “Capitalization” and “Description of Capital Stock” (and any
similar sections or information, if any, contained in any Permitted Free Writing
Prospectus) (subject to the issuance of shares of Common Stock upon exchange or
conversion of the Company’s 7.25% Perpetual Convertible Preferred Stock (the
“7.25% Preferred Stock”) and upon exercise of stock options each disclosed as
outstanding in the Registration Statement (excluding the exhibits thereto), each
Pre-Pricing Prospectus and the Prospectus and the grant of options under
existing stock option plans described in the Registration Statement (excluding
the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus); all of
the issued and outstanding shares of capital stock, including the Common Stock,
of the Company have been duly authorized and validly issued and are fully paid
and non-assessable, have been issued in compliance with all applicable
securities laws and were not issued in violation of any preemptive right, resale
right, right of first refusal or similar right; the Shares are duly listed, and
admitted and authorized for trading, subject to official notice of issuance, on
The NASDAQ Capital Market (the “NASDAQ”).
(f) Formation. The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of Bermuda, with full corporate power and authority
to own, lease and operate its properties and conduct its business as described
in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, to execute and deliver this
Agreement and to issue, sell and deliver the Shares as contemplated
herein. Each of Energy XXI (US Holdings) Limited, Energy XXI, Inc.,
Energy XXI USA, Inc. Energy XXI Gulf Coast, Inc., Energy XXI Services, LLC,
Energy XXI GOM, LLC (“EXXI GOM”), Energy
XXI Texas Onshore, LLC (formerly Energy XXI Texas GP, LLC) and Energy XXI
Onshore, LLC, (formerly Energy XXI Texas, LP) (collectively the “Subsidiaries”) has
been duly incorporated or formed and is currently existing as a corporation or
limited liability company, as applicable, and is in good standing under the laws
of the jurisdiction of its incorporation or organization, with full corporate or
limited liability company power and authority to own, lease and operate its
properties and to conduct its business as currently conducted or as it is to be
conducted as described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any.
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(g) Foreign
Qualification. The Company and each of the Subsidiaries is
duly qualified to do business as a foreign corporation or limited liability
company and is in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good standing
would not, individually or in the aggregate, either (i) have a material adverse
effect on the business, properties, financial condition, results of operations
or prospects of the Company and the Subsidiaries taken as a whole, (ii) prevent
or materially interfere with consummation of the transactions contemplated
hereby or (iii) result in the delisting of shares of Common Stock from the
NASDAQ (the occurrence of any such effect or any such prevention or interference
or any such result described in the foregoing clauses (i), (ii) and (iii) being
herein referred to as a “Material Adverse
Effect”).
(h) Subsidiaries. The
Company has no subsidiaries (as defined under the Act) other than the
Subsidiaries; the Company, directly or indirectly, owns all of the issued and
outstanding capital stock or membership interests of each of the Subsidiaries;
other than the capital stock or membership interests of the
Subsidiaries, the Company does not own, directly or indirectly, any shares of
stock or any other equity interests or long-term debt securities of any
corporation, firm, partnership, joint venture, association or other entity;
complete and correct copies of the Memorandum of Association, or Bye-Laws or
Certificate of Incorporation or any of the organizational documents
(collectively “Organizational
Documents”) of the Company and each of the Subsidiaries and all
amendments thereto have been delivered to you, and, other than amendments to the
Company’s Memorandum of Association and Bye-Laws, no changes therein will be
made on or after the date hereof through and including the time of purchase or,
if later, any additional time of purchase except as disclosed in the Disclosure
Package or for any certificate of designation or other changes to the Company’s
Organizational Documents to be made in connection with the issuance of the
Preferred Stock; all of the outstanding shares of capital stock or membership
interests of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable, have been issued in compliance with
all applicable securities laws, were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right and, except for
liens pursuant to the Amended and Restated First Lien Credit Agreement, dated
June 8, 2007, among the Energy XXI GOM, various financial institutions, as
lenders, The Royal Bank of Scotland plc, as Administrative Agent, RBS Securities
Corporation and BNP Paribas, as Joint Lead Arrangers and Joint Bookrunners, BNP
Paribas, as Syndication Agent, and Guaranty Bank, FSB and BMO Capital Markets
Financing, Inc., as Co-Documentation Agents, as amended (the “First Lien
Facility”), and the Indenture, dated November 12, 2009, among Energy XXI
Gulf Coast, Inc., the Guarantors named therein and Wilmington Trust FSB, as
trustee, governing Energy XXI Gulf Coast, Inc.’s 16% Second Lien Junior Secured
Notes due 2014 (the “Second Lien Notes
Indenture”), are owned by the Company subject to no security interest,
other encumbrance or adverse claims; and no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to convert
any obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding.
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(i) Valid Shares. The Shares have
been duly and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued, fully paid and
non-assessable and free of statutory and contractual preemptive rights, resale
rights, rights of first refusal and similar rights; the Shares, when issued and
delivered against payment therefor as provided herein, will be free of any
restriction upon the voting or transfer thereof pursuant to Bermuda’s The
Companies Act of 1981 or the Organizational Documents of the Company or any of
the Subsidiaries or any agreement or other instrument to which the Company is a
party or to which it is bound.
(j) Conforming
Stock. The capital stock of the Company, including the Shares,
conforms in all material respects to each description thereof, if any, contained
or incorporated by reference in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any.
(k) Authorization of this
Agreement. This Agreement has been duly authorized, executed
and delivered by the Company.
(l) No Existing
Default. Neither the Company nor any of the Subsidiaries is in
breach or violation of or in default under (nor has any event occurred which,
with notice, lapse of time or both, would result in any breach or violation of,
constitute a default under or give the holder of any indebtedness (or a person
acting on such holder’s behalf) the right to require the repurchase, redemption
or repayment of all or a part of such indebtedness under) (A) its Organizational
Documents, or (B) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound or affected, or (C) any federal, state, local or
foreign law, regulation or rule, or (D) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the rules and regulations of the NASDAQ), or (E)
any decree, judgment or order applicable to it or any of its properties, except
for such breaches, violations or defaults pursuant to subsection (B), (C), (D)
or (E) as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(m) No Conflicts. The
execution, delivery and performance of this Agreement, the issuance and sale of
the Shares and the consummation of the transactions contemplated hereby will not
conflict with, result in any breach or violation of or constitute a default
under (nor constitute any event which, with notice, lapse of time or both, would
result in any breach or violation of, constitute a default under or give the
holder of any indebtedness (or a person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (or result in the creation or imposition of a lien,
charge or encumbrance on any property or assets of the Company or any Subsidiary
pursuant to) (A) the Organizational Documents of the Company or any of the
Subsidiaries, or (B) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them or any of their respective properties may be
bound or affected, or (C) any federal, state, local or foreign law, regulation
or rule, or (D) any rule or regulation of any self-regulatory organization or
other non-governmental regulatory authority (including, without limitation, the
rules and regulations of the NASDAQ), or (E) any decree, judgment or order
applicable to the Company or any of the Subsidiaries or any of their respective
properties, except for such breaches, violations or defaults pursuant to
subsection (B), (C), (D) or (E) as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
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(n) No Consents. No
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the
NASDAQ), or approval of the stockholders of the Company, is required in
connection with the issuance and sale of the Shares or the consummation by the
Company of the transactions contemplated hereby, other than (i) registration of
the Shares under the Act, which has been effected (or, with respect to any
registration statement to be filed hereunder pursuant to Rule 462(b) under the
Act, will be effected in accordance herewith), (ii) any necessary qualification
under the securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters or (iii) under the Conduct Rules of
the Financial Industry Regulatory Authority, Inc. (“FINRA”).
(o) No Preemptive Rights, Registration
Rights or Options. Except as described in the Registration
Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the
Prospectus, (i) no person has the right, contractual or otherwise, to cause the
Company to issue or sell to it any shares of Common Stock or shares of any other
capital stock or other equity interests of the Company, (ii) no person has any
preemptive rights, resale rights, rights of first refusal or other rights to
purchase any shares of Common Stock or shares of any other capital stock of or
other equity interests in the Company and (iii) no person has the right to act
as an underwriter or as a financial advisor to the Company in connection with
the offer and sale of the Shares; no person has the right, contractual or
otherwise, to cause the Company to register under the Act any shares of Common
Stock or shares of any other capital stock of or other equity interests in the
Company, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby.
(p) Authority to Conduct
Business. Each of the Company and the Subsidiaries has all
necessary licenses, authorizations, consents and approvals and has made all
necessary filings required under any applicable law, regulation or rule, and has
obtained all necessary licenses, authorizations, consents and approvals from
other persons, in order to conduct their respective businesses; neither the
Company nor any of the Subsidiaries is in violation of, or in default under, or
has received notice of any proceedings relating to revocation or modification
of, any such license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of the Subsidiaries, except where such
violation, default, revocation or modification would not, individually or in the
aggregate, have a Material Adverse Effect.
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(q) No Legal
Action. There are no actions, suits, claims, investigations or
proceedings pending or, to the Company’s knowledge, threatened to which the
Company or any of the Subsidiaries or any of their respective properties is or
would be subject at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or agency,
or before or by any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the NASDAQ), except any
such action, suit, claim, investigation or proceeding which, if resolved
adversely to the Company or any Subsidiary, would not, individually or in the
aggregate, have a Material Adverse Effect.
(r) Auditor. UHY LLP,
whose reports on (i) the consolidated financial statements of the Company and
the Subsidiaries and (ii) the Statement of Revenues and Direct Operating
Expenses related to the oil and gas properties (the “Acquired Properties”)
acquired from MitEnergy Upstream, LLC (“MitEnergy”) pursuant
to the Purchase and Sale Agreement dated November 20, 2009 between Energy XXI,
Inc. and MitEnergy are included or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses and the Prospectus, are independent
registered public accountants as required by the Act and by the rules of the
Public Company Accounting Oversight Board.
(s) Financial
Statements. The financial statements included or incorporated
by reference in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, together with
the related notes and schedules, present fairly the consolidated financial
position of the Company and the Subsidiaries as of the dates indicated and the
consolidated results of operations, cash flows and changes in stockholders’
equity of the Company and the Subsidiaries for the periods specified and the
revenues and direct operating expenses of the Acquired Properties for the
periods specified and have been prepared in compliance with the requirements of
the Act and Exchange Act and in conformity with U.S. generally accepted
accounting principles applied on a consistent basis during the periods involved;
all pro forma financial statements or data included or incorporated by reference
in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, comply in all material respects
with the requirements of the Act and the Exchange Act, and the assumptions used
in the preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate to give
effect to the transactions or circumstances described therein and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of those statements and data; the other financial and statistical
data contained or incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are accurately and fairly presented and prepared on a
basis consistent with the financial statements and books and records of the
Company; there are no financial statements (historical or pro forma) that are
required to be included or incorporated by reference in the Registration
Statement, any Pre-Pricing Prospectus or the Prospectus that are not included or
incorporated by reference as required; the Company and the Subsidiaries do not
have any material liabilities or obligations, direct or contingent (including
any off-balance sheet obligations), not described in the Registration Statement
(excluding the exhibits thereto), each Pre-Pricing Prospectus and the
Prospectus; and all disclosures contained or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, regarding “non-GAAP financial
measures” (as such term is defined by the rules and regulations of the
Commission) comply with Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Act, to the extent applicable.
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(t) No Material
Changes. Subsequent to the respective dates as of which
information is given in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, in each case excluding any amendments or supplements to the foregoing made
after the execution of this Agreement, there has not been, other than the
issuance of Preferred Stock as of the time of purchase or as disclosed in the
Disclosure Package (i) any material adverse change, or any development involving
a prospective material adverse change, in the business, properties, management,
financial condition or results of operations of the Company and the Subsidiaries
taken as a whole, (ii) any transaction which is material to the Company and the
Subsidiaries taken as a whole, (iii) any obligation or liability, direct or
contingent (including any off-balance sheet obligations), incurred by the
Company or any Subsidiary, which is material to the Company and the Subsidiaries
taken as a whole, (iv) any change in the capital stock or outstanding
indebtedness of the Company or any Subsidiaries or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of the
Company or any Subsidiary.
(u) Lock-Up
Agreements. The Company has obtained for the benefit of the
Underwriters the agreement (a “Lock-Up Agreement”),
in the form set forth as Exhibit A hereto, of
each of its directors and “officers” (within the meaning of Rule 16a-1(f) under
the Exchange Act) named in Exhibit A-1
hereto.
(v) Investment
Company. Neither the Company nor any Subsidiary is, and at no
time during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares will either of them be, and, after
giving effect to the offering and sale of the Shares and the application of the
proceeds thereof, neither of them will be, an “investment company” or an entity
“controlled” by an “investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended (the “Investment Company
Act”) or a “passive foreign investment company” or a “controlled foreign
corporation,” as such terms are defined in the Internal Revenue Code of 1986, as
amended (the “Internal
Revenue Code”).
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(w) Title to
Assets. The Company and each of the Subsidiaries have
generally satisfactory title to their respective oil and gas properties, title
investigations having been carried out by the Company or the Subsidiaries in
accordance with practice in the oil and gas industry in the areas in which the
Company and the Subsidiaries operate, and good and marketable title to the other
real and personal property reflected in the Registration Statement, the
Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being owned by any of them, free and clear of all
liens, claims, security interests or other encumbrances, except as described in
the Registration Statement, the Pre-Pricing Prospectus, the Prospectus, the
Permitted Free Writing Prospectuses, if any and the First Lien Facility and the
Second Lien Notes Indenture, or as would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; all the
property described in the Registration Statement, the Pre-Pricing Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any, as being
held under lease by the Company or a Subsidiary is held thereby under valid,
subsisting and enforceable leases, except (i) as described, and subject to
limitations contained, in the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or (ii) such
as do not materially interfere with the use of such properties taken as a whole
as they have been used in the past and are proposed to be used in the future as
described in the Registration Statement, the Pre-Pricing Prospectus, the
Prospectus or any Permitted Free Writing Prospectus; the working interests
derived from oil, gas and mineral leases or mineral interests which constitute a
portion of the real property held or leased by the Company and its Subsidiaries
reflect in all material respects the right of the Company and its Subsidiaries
to explore, develop or produce hydrocarbons from such real property, and the
care taken by the Company and its Subsidiaries with respect to acquiring or
otherwise procuring such leases or other property interests was generally
consistent with standard industry practices in the areas in which the Company
operates for acquiring or procuring leases and interests therein to explore,
develop or produce hydrocarbons.
(x) Labor. Neither the
Company nor any of the Subsidiaries is engaged in any unfair labor practice;
except for matters which would not, individually or in the aggregate, have a
Material Adverse Effect, (i) there is (A) no unfair labor practice complaint
pending or, to the Company’s knowledge, threatened against the Company or any of
the Subsidiaries before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under collective bargaining agreements
is pending or, to the Company’s knowledge, threatened, (B) no strike, labor
dispute, slowdown or stoppage pending or, to the Company’s knowledge, threatened
against the Company or any of the Subsidiaries and (C) no union representation
dispute currently existing concerning the employees of the Company or any of the
Subsidiaries, (ii) to the Company’s knowledge, no union organizing activities
are currently taking place concerning the employees of the Company or any of the
Subsidiaries and (iii) there has been no violation of any federal, state, local
or foreign law relating to discrimination in the hiring, promotion or pay of
employees, any applicable wage or hour laws or any provision of the Employee
Retirement Income Security Act of 1974, as amended, or the rules and regulations
promulgated thereunder concerning the employees of the Company or any of the
Subsidiaries.
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(y) Environmental
Matters. Except as would not, individually or in the
aggregate, result in a Material Adverse Effect: (i) the Company and
the Subsidiaries and their respective properties, assets and operations are in
compliance with, and the Company and each of the Subsidiaries hold all permits,
authorizations and approvals required under, Environmental Laws (as defined
below); (ii) there are no events, conditions or circumstances known to the
Company that would reasonably be expected to give rise to any costs or
liabilities to the Company or any Subsidiary under Environmental Laws; and (iii)
neither the Company nor any of the Subsidiaries has received any written notice
of an action, suit, claim, investigation, notice of violation, judgment, order
or proceeding, in each case relating to any liability under any Environmental
Law or any release or, to the Company’s knowledge, threatened release of any
Hazardous Materials (as defined below) by the Company or any of its Subsidiaries
(as used herein, “Environmental Law”
means any federal, state or local, law, statute, ordinance, rule (including,
without limitation, rules of common law), regulation, order, decree, judgment,
injunction, permit, license, authorization or other legally enforceable binding
requirement relating to health or safety (to the extent such health or safety
relates to exposure to Hazardous Materials) or the protection of the environment
or natural resources, including those relating to the distribution, generation,
treatment, storage, disposal, transportation or release of Hazardous Materials,
and “Hazardous
Materials” means any material (including, without limitation, pollutants,
contaminants, hazardous or toxic substances or wastes) that is regulated by or
that gives rise to liability under any Environmental Law).
(z) Tax Returns. All
tax returns required to be filed by the Company or any of the Subsidiaries have
been timely filed, and all taxes and other assessments of a similar nature
(whether imposed directly or through withholding) including any interest,
additions to tax or penalties applicable thereto due or claimed to be due from
such entities have been timely paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(aa) Insurance
Coverage. The Company and each of the Subsidiaries maintain
insurance covering their respective properties, operations, personnel and
businesses as the Company reasonably deems adequate; such insurance insures
against such losses and risks to an extent which the Company believes is
adequate in accordance with customary industry practice to protect the Company
and the Subsidiaries and their respective businesses; all such insurance is
fully in force on the date hereof and will be fully in force at the time of
purchase and each additional time of purchase, if any, except as described in
the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus; neither the Company nor any Subsidiary has
reason to believe that it will not be able to renew any such insurance as and
when such insurance expires.
(bb) No Contract
Termination. Neither the Company nor any Subsidiary has sent
or received any communication regarding termination of, or intent not to renew,
any of the contracts or agreements referred to or described in any Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, or referred
to or described in, or filed as an exhibit to, the Registration Statement or any
Incorporated Document, and no such termination or non-renewal has been
threatened by the Company or any Subsidiary or, to the Company’s knowledge, any
other party to any such contract or agreement.
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(cc) Maintenance of Internal
Controls. The Company and each of the Subsidiaries 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 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.
(dd) Disclosure and Control
Procedures. The Company has established and maintains and
evaluates “disclosure controls and procedures” (as such term is defined in Rule
13a-15 and 15d-15 under the Exchange Act) and “internal control over financial
reporting” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange
Act); such disclosure controls and procedures are designed to ensure that
material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s Chief Executive Officer and its
Chief Financial Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for which they
were established; the Company’s independent registered public accountants and
the Audit Committee of the Board of Directors of the Company have been advised
of: (i) all significant deficiencies, if any, in the design or operation of
internal controls which could adversely affect the Company’s ability to record,
process, summarize and report financial data; and (ii) all fraud, if any,
whether or not material, that involves management or other employees who have a
role in the Company’s internal controls; all “significant deficiencies” and
“material weaknesses” (as such terms are defined in Rule 1-02(a)(4) of
Regulation S-X under the Act) of the Company, if any, have been identified to
the Company’s independent registered public accountants and are disclosed in the
Registration Statement (excluding the exhibits thereto), each Pre-Pricing
Prospectus and the Prospectus; since the date of the most recent evaluation of
such disclosure controls and procedures and internal controls, there have been
no significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses; the principal
executive officers (or their equivalents) and principal financial officers (or
their equivalents) of the Company have made all certifications required by the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”)
and any related rules and regulations promulgated by the Commission, and the
statements contained in each such certification are complete and correct; the
Company, the Subsidiaries and the Company’s directors and officers are each in
compliance in all material respects with all applicable effective provisions of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations of the Commission and the
NASDAQ promulgated thereunder.
(ee) Forward Looking
Statements. Each “forward-looking statement” (within the
meaning of Section 27A of the Act or Section 21E of the Exchange Act) contained
or incorporated by reference in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, has been made or reaffirmed with a reasonable basis and in good
faith.
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(ff) Statistical or Market-Related
Data. All statistical or market-related data included or
incorporated by reference in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, are based on or derived from sources that the Company reasonably believes
to be reliable and accurate.
(gg) Illegal
Payments. Neither the Company nor any of the Subsidiaries nor,
to the Company’s knowledge, any employee or agent of the Company or any
Subsidiary has made any payment of funds of the Company or any Subsidiary or
received or retained any funds in violation of any law, rule or regulation
(including, without limitation, the Foreign Corrupt Practices Act of 1977),
which payment, receipt or retention of funds is of a character required to be
disclosed in the Registration Statement, any Pre-Pricing Prospectus, the
Prospectus or a Permitted Free Writing Prospectuses, if any.
(hh) Money Laundering
Laws. The operations of the Company and the 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 jurisdictions, the rules and regulations thereunder and any related or
similar 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 or non-governmental
authority involving the Company or any of the Subsidiaries with respect to the
Money Laundering Laws is pending or, to the Company’s knowledge,
threatened.
(ii) OFAC
Sanctions. Neither the Company nor any of the Subsidiaries
nor, to the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of the 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 the offering of the
Shares contemplated hereby, 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.
(jj) Independent Petroleum
Engineers. Netherland, ▇▇▇▇▇▇ & Associates, Inc. (“NSAI”), whose reports
regarding the oil and gas reserves of the Company and its Subsidiaries (the
“Reserve
Reports”) are referenced in the Pre-Pricing Prospectus and the
Prospectus, and who has delivered the letter referenced to in Section 6(e)
hereof, was, as of the date of such reports, and is, as of the date hereof, an
independent engineering firm with respect to the Company.
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(kk) Information Underlying Reserve
Report. The factual information underlying the estimates of
proved oil and gas reserves of the Company and the Subsidiaries, which was
supplied by the Company and the Subsidiaries to NSAI for the purposes of
preparing the Reserve Reports, including, without limitation, production
volumes, costs of operation and development, current prices for production,
agreements relating to current and future operations and sales of production,
was true and correct in all material respects on the dates such estimates were
made and such information was supplied and was prepared in accordance with
customary industry practices; other than normal production of the reserves and
intervening market commodity price fluctuations, the Company and the
Subsidiaries are not aware of any facts or circumstances that would result in a
material adverse change in the reserves, or the present value of future net cash
flows therefrom, as described in the Registration Statement, Pre-Pricing
Prospectus, the Prospectus and any Permitted Free Writing Prospectus and as
reflected in the Reserve Report; estimates of such reserves and present values
as described in the Registration Statement, Pre-Pricing Prospectus, the
Prospectus and any Permitted Free Writing Prospectus and reflected in the
Reserve Report comply in all material respects with the applicable requirements
of Regulation S-X and Industry Guide 2 under the Act.
(ll) Gas Imbalances; Prepayments.
On a net basis there are no gas imbalances, take-or-pay or other prepayments
that would require the Company or any of its subsidiaries to deliver
Hydrocarbons produced from the Oil and Gas Properties at some future time
without then or thereafter receiving full payment therefor exceeding one-half
bcf of gas (on an mcf equivalent basis) in the aggregate, other than as would
not result in a Material Adverse Effect.
(mm) Subsidiary
Distributions. No Subsidiary is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making any other
distribution on such Subsidiary’s capital stock, from repaying the Company any
loans or advances to such Subsidiary from the Company or from transferring any
of such Subsidiary’s property or assets to the Company or any other Subsidiary
of the Company, except as described in the Disclosure Package.
(nn) Delisting
Notice. The Company has not received any notice from the
NASDAQ regarding the delisting of the Common Stock from the NASDAQ.
(oo) Finder’s or Broker’s or Agent’s
Commissions. Except pursuant to this Agreement, neither the
Company nor any of the Subsidiaries has incurred any liability for any finder’s
or broker’s fee or agent’s commission in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby or by the Registration Statement.
(pp) Price Stabilization or
Manipulation. Neither the Company nor any of the Subsidiaries
nor any of their respective directors, officers, affiliates or controlling
persons has taken, directly or indirectly, any action designed, or which has
constituted or might 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 Shares.
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(qq) FINRA
Associations. To the Company’s knowledge, there are no
affiliations or associations between (i) any member of FINRA and (ii) the
Company or any of the Company’s officers, directors (with the exception of Hill
▇. ▇▇▇▇▇▇▇▇’▇ association or affiliation with First Southwest Company) or 5% or
greater security holders or any beneficial owner of the Company’s unregistered
equity securities that were acquired at any time on or after the 180th day
immediately preceding the date the Registration Statement was initially filed
with the Commission, except as disclosed in the Registration Statement
(excluding the exhibits thereto), the Pre-Pricing Prospectuses and the
Prospectus.
In addition, any certificate signed by
any officer of the Company or any of the Subsidiaries and delivered to any
Underwriter or counsel for the Underwriters in connection with the offering of
the Shares shall be deemed to be a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
4. Certain Covenants of the
Company. The Company hereby agrees:
(a) to
furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky
laws of such states or other jurisdictions as you may designate and to maintain
such qualifications in effect so long as you may request for the distribution of
the Shares; provided, however, that the
Company shall not be required to qualify as a foreign corporation or to consent
to the service of process under the laws of any such jurisdiction (except
service of process with respect to the offering and sale of the Shares); and to
promptly advise you of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for offer or sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(b) to
make available to the Underwriters in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to
furnish to the Underwriters, as many copies of the Prospectus (or of the
Prospectus as amended or supplemented if the Company shall have made any
amendments or supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes contemplated by the
Act; in case any Underwriter is required to deliver (whether physically or
through compliance with Rule 172 under the Act or any similar rule), in
connection with the sale of the Shares, a prospectus after the nine-month period
referred to in Section 10(a)(3) of the Act, or after the time a post-effective
amendment to the Registration Statement is required pursuant to Item 512(a) of
Regulation S-K under the Act, the Company will prepare, at its expense, promptly
upon request such amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as
the case may be;
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(c) if,
at the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement, or a
Registration Statement under Rule 462(b) under the Act, to be filed with the
Commission and become effective before the Shares may be sold, the Company will
use its best efforts to cause such post-effective amendment or such Registration
Statement to be filed and become effective, and will pay any applicable fees in
accordance with the Act, as soon as possible; and the Company will advise you
promptly and, if requested by you, will confirm such advice in writing, (i) when
such post-effective amendment or such Registration Statement has become
effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is
filed with the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner in accordance with such
Rules);
(d) if,
at any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, the Registration
Statement shall cease to comply with the requirements of the Act with respect to
eligibility for the use of the form on which the Registration Statement was
filed with the Commission or the Registration Statement shall cease to be an
“automatic shelf registration statement” (as defined in Rule 405 under the Act)
or the Company shall have received, from the Commission, a notice, pursuant to
Rule 401(g)(2), of objection to the use of the form on which the Registration
Statement was filed with the Commission, to (i) promptly notify you, (ii)
promptly file with the Commission a new registration statement under the Act,
relating to the Shares, or a post-effective amendment to the Registration
Statement, which new registration statement or post-effective amendment shall
comply with the requirements of the Act and shall be in a form satisfactory to
you, (iii) use its best efforts to cause such new registration statement or
post-effective amendment to become effective under the Act as soon as
practicable, (iv) promptly notify you of such effectiveness and (v) take all
other action necessary or appropriate to permit the public offering and sale of
the Shares to continue as contemplated in the Prospectus; all references herein
to the Registration Statement shall be deemed to include each such new
registration statement or post-effective amendment, if any;
(e) if
the third anniversary of the initial effective date of the Registration
Statement (within the meaning of Rule 415(a)(5) under the Act) shall occur at
any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, to file with the
Commission, prior to such third anniversary, a new registration statement under
the Act relating to the Shares, which new registration statement shall comply
with the requirements of the Act (including, without limitation, Rule 415(a)(6)
under the Act) and shall be in a form reasonably satisfactory to you; such new
registration statement shall constitute an “automatic shelf registration
statement” (as defined in Rule 405 under the Act); provided, however, that if the
Company is not then eligible to file an “automatic shelf registration statement”
(as defined in Rule 405 under the Act), then such new registration statement
need not constitute an “automatic shelf registration statement” (as defined in
Rule 405 under the Act), but the Company shall use its reasonable efforts to
cause such new registration statement to become effective under the Act as soon
as practicable, but in any event within 180 days after such third anniversary
and promptly notify you of such effectiveness; the Company shall take all other
action necessary or appropriate to permit the public offering and sale of the
Shares to continue as contemplated in the Prospectus; all references herein to
the Registration Statement shall be deemed to include each such new registration
statement, if any;
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(f) to
advise you promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus
or for additional information with respect thereto, or of notice of institution
of proceedings for, or the entry of a stop order, suspending the effectiveness
of the Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to use its best
efforts to obtain the lifting or removal of such order as soon as possible; to
advise you promptly of any proposal to amend or supplement the Registration
Statement, any Pre-Pricing Prospectus or the Prospectus, and to provide you and
Underwriters’ counsel copies of any such documents for review and comment a
reasonable amount of time prior to any proposed filing and to file no such
amendment or supplement to which you shall object in writing;
(g) subject
to Section 4(f) hereof, to file promptly all reports and documents and any
preliminary or definitive proxy or information statement required to be filed by
the Company with the Commission in order to comply with the Exchange Act for so
long as a prospectus is required by the Act to be delivered (whether physically
or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares; and to provide you, for your review and
comment, with a copy of such reports and statements and other documents to be
filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act
during such period a reasonable amount of time prior to any proposed filing, and
to file no such report, statement or document to which you shall have objected
in writing; and to promptly notify you of such filing;
(h) to
pay the fees applicable to the Registration Statement in connection with the
offering of the Shares within the time required by Rule 456(b)(1)(i) under the
Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Act) and in
compliance with Rule 456(b) and Rule 457(r) under the Act;
(i) to
advise the Underwriters promptly of the happening of any event within the period
during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, which event could require the
making of any change in the Prospectus then being used so that the Prospectus
would not include an 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 are made, not misleading, and to advise the
Underwriters promptly if, during such period, it shall become necessary to amend
or supplement the Prospectus to cause the Prospectus to comply with the
requirements of the Act, and, in each case, during such time, subject to Section
4(f) hereof, to prepare and furnish, at the Company’s expense, to the
Underwriters promptly such amendments or supplements to such Prospectus as may
be necessary to reflect any such change or to effect such
compliance;
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(j) to
make generally available to its security holders, and to deliver to you, an
earnings statement of the Company which will satisfy, on a timely basis, the
provisions of Section 11(a) of the Act and Rule 158 under the Act;
(k) to
furnish to you copies of the Registration Statement, as initially filed with the
Commission, and of all amendments thereto (including all exhibits thereto and
documents incorporated by reference therein) and sufficient copies of the
foregoing (other than exhibits) for distribution of a copy to each of the other
Underwriters;
(l) to
furnish to you as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than two business
days prior thereto, a copy of the latest available unaudited interim and monthly
consolidated financial statements, if any, of the Company and the Subsidiaries
which have been read by the Company’s independent registered public accountants,
as stated in their letter to be furnished pursuant to Section 6(d)
hereof;
(m) to
apply the net proceeds from the sale of the Shares in the manner set forth under
the caption “Use of proceeds” in the Prospectus Supplement;
(n) to
pay all costs, expenses, fees and taxes in connection with (i) the preparation
and filing of the Registration Statement, each Basic Prospectus, each
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus, each
Permitted Free Writing Prospectus and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the registration, issue,
sale and delivery of the Shares including any stock or transfer taxes and stamp
or similar duties payable upon the sale, issuance or delivery of the Shares to
the Underwriters, (iii) the producing, word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers
of Attorney and any closing documents (including compilations thereof) and the
reproduction and/or printing and furnishing of copies of each thereof to the
Underwriters and (except closing documents) to dealers (including costs of
mailing and shipment), (iv) the qualification of the Shares for offering and
sale under state or foreign laws and the determination of their eligibility for
investment under state or foreign law (including the legal fees and filing fees
and other disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys to the
Underwriters and to dealers, (v) any listing of the Shares on any securities
exchange or qualification of the Shares for quotation on the NASDAQ and any
registration thereof under the Exchange Act, (vi) any filing for review of the
public offering of the Shares by FINRA, including the legal fees and filing fees
and other disbursements of counsel to the Underwriters relating to FINRA
matters, (vii) the fees and disbursements of any transfer agent or registrar for
the Shares, (viii) the costs and expenses of the Company relating to
presentations or meetings undertaken in connection with the marketing of the
offering and sale of the Shares to prospective investors and the Underwriters’
sales forces, including, without limitation, out of pocket expenses associated
with the production of road show slides and graphics, travel, lodging and other
expenses incurred by the officers of the Company, and the cost of any aircraft
chartered in connection with the road show and (ix) the performance of the
Company’s other obligations hereunder;
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(o) to
comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the
Act) and with Rule 433(g) under the Act;
(p) beginning
on the date hereof and ending on, and including, the date that is 60 days after
the date of the Prospectus Supplement (the “Lock-Up Period”),
without the prior written consent of UBS, not to (i) issue, sell, offer to sell,
contract or agree to sell, hypothecate, pledge, grant any option to purchase or
otherwise dispose of or agree to dispose of, directly or indirectly, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act and the
rules and regulations of the Commission promulgated thereunder, with respect to,
any Common Stock or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the foregoing,
(ii) file or cause to become effective a registration statement under the Act
relating to the offer and sale of any Common Stock or any other securities of
the Company that are substantially similar to Common Stock, or any securities
convertible into or exchangeable or exercisable for, or any warrants or other
rights to purchase, the foregoing (iii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or any securities convertible into or
exchangeable or exercisable for, or any warrants or other rights to purchase,
the foregoing, whether any such transaction is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise or (iv) publicly
announce an intention to effect any transaction specified in clause (i), (ii) or
(iii), except, in each case, for (A) the registration of the offer and sale of
the Shares, as contemplated by this Agreement, and the Preferred Stock (B)
issuances of Common Stock upon the conversion or exchange of the 7.25% Preferred
Stock and the Preferred Stock or the exercise of options or warrants disclosed
as outstanding in the Registration Statement (excluding the exhibits thereto),
each Pre-Pricing Prospectus and the Prospectus, (C) the issuance of employee
stock options not exercisable during the Lock-Up Period pursuant to stock option
plans described in the Registration Statement (excluding the exhibits thereto),
each Pre-Pricing Prospectus and the Prospectus, (D) the issuance of Common Stock
to the Company’s independent directors pursuant to the 2006 Long-Term Incentive
Plan of Energy XXI Services, LLC (E) the issuance of up to 500,000 shares of
Common Stock to employees, directors and other service providers of the Company
and its subsidiaries pursuant to the Employee Stock Purchase Plan of Energy XXI
Services, LLC and (F) the issuance of Common Stock in connection with the
Company’s exchange offer for its outstanding 7.25% Preferred Stock;
(q) not,
at any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the
meaning of the Act), or use any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other than the
Prospectus;
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(r) not
to, and to cause the Subsidiaries not to, take, directly or indirectly, any
action designed, or which will constitute, or has constituted, or might
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 Shares;
(s) to
use its best efforts to cause the Shares to be listed for quotation on the
NASDAQ and to maintain the listing of the Common Stock, including the Shares,
for quotation on the NASDAQ; and
(t) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
5. Reimbursement of the
Underwriters’ Expenses. If, after the execution and delivery
of this Agreement, the Shares are not delivered for any reason other than the
termination of this Agreement pursuant (a) to the fifth paragraph of Section 8
hereof, (b) Clause (A), (C), (D) or (E) of Clause (2) of the second paragraph of
Section 7 hereof or (c) the default by one or more of the Underwriters in its or
their respective obligations hereunder, the Company shall, in addition to paying
the amounts described in Section 4(n) hereof, reimburse the Underwriters for all
of their out-of-pocket expenses, including the fees and disbursements of their
counsel.
6. Conditions of the
Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties on the part of the Company on the date hereof, at the time of
purchase and, if applicable, at the additional time of purchase, the performance
by the Company of its obligation hereunder and to the following additional
conditions precedent:
(a) The
Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel
for the Company, addressed to the Underwriters, and dated the time of purchase
or the additional time of purchase, as the case may be, with executed copies for
each Underwriter, and in form and substance satisfactory to UBS and Credit
Suisse, in the form set forth in Exhibit B
hereto.
(b) The
Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of ▇▇ ▇▇▇▇, the Company’s Vice President
of Law, addressed to the Underwriters, and dated the time of purchase or the
additional time of purchase, as the case may be, with executed copies for each
Underwriter, and in form and substance satisfactory to UBS and Credit Suisse, in
the form set forth in Exhibit C
hereto.
(c) You
shall have received at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Bailhache, counsel for
the Company, addressed to the Underwriters, and dated the time of purchase or
the additional time of purchase, as the case may be, in form and substance
reasonably satisfactory to UBS and Credit Suisse, in the form set forth in Exhibit
D.
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(d) You
shall have received from UHY LLP letters dated, respectively, the date of this
Agreement, the date of the Prospectus Supplement, the time of purchase and, if
applicable, the additional time of purchase, and addressed to the Underwriters
(with executed copies for each Underwriter) in the forms satisfactory to UBS and
Credit Suisse, which letters shall cover, without limitation, the various
financial disclosures contained in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any.
(e) You
shall have received from NSAI letters, dated, respectively, the date of this
Agreement, the time of purchase and, if applicable, the additional time of
purchase, and addressed to the Underwriters (i) confirming that as of the date
of the Reserve Reports, it was an independent reserve engineer with respect to
the Company and its Subsidiaries and no information has come to its attention
that could reasonably be expected to cause it to withdraw its Reserve Reports
and (ii) otherwise in form and substance acceptable to UBS and Credit
Suisse.
(f) You
shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.,
counsel for the Underwriters, dated the time of purchase or the additional time
of purchase, as the case may be, in form and substance reasonably satisfactory
to UBS and Credit Suisse.
(g) You
shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Underwriters, dated the time of purchase or the
additional time of purchase, as the case may be, in form and substance
reasonably satisfactory to UBS and Credit Suisse.
(h) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in
writing.
(i) The
Registration Statement and any registration statement required to be filed,
prior to the sale of the Shares, under the Act pursuant to Rule 462(b) shall
have been filed and shall have become effective under the Act. The
Prospectus Supplement shall have been filed with the Commission pursuant to Rule
424(b) under the Act at or before 5:30 P.M., New York City time, on the second
full business day after the date of this Agreement (or such earlier time as may
be required under the Act).
(j) Prior
to and at the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act or proceedings
initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement
and all amendments thereto shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; (iii) none of the Pre-Pricing
Prospectuses or the Prospectus, and no amendment or supplement thereto, shall
include an 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 are made, not misleading; (iv) no Disclosure
Package, and no amendment or supplement thereto, shall include an 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 are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, shall include an 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 are made, not
misleading.
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(k) The
Company will, at the time of purchase and, if applicable, at the additional time
of purchase, deliver to you a certificate of its Chief Executive Officer and its
Chief Financial Officer, dated the time of purchase or the additional time of
purchase, as the case may be, in the form attached as Exhibit E
hereto.
(l) You
shall have received each of the signed Lock-Up Agreements referred to in Section
3(u) hereof, and each such Lock-Up Agreement shall be in full force and effect
at the time of purchase and the additional time of purchase, as the case may
be.
(m) The
Company shall have furnished to you such other documents and certificates as to
the accuracy and completeness of any statement in the Registration Statement,
any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing
Prospectus as of the time of purchase and, if applicable, the additional time of
purchase, as you may reasonably request.
(n) The
Shares shall have been approved for quotation on the NASDAQ, subject only to
notice of issuance at or prior to the time of purchase or the additional time of
purchase, as the case may be.
(o) FINRA
shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
7. Effective Date of Agreement;
Termination. This Agreement shall become effective when the
parties hereto have executed and delivered this Agreement.
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The obligations of the several
Underwriters hereunder shall be subject to termination in the absolute
discretion of UBS and Credit Suisse, if (1) since the time of execution of this
Agreement or the earlier respective dates as of which information is given in
the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, there has been any change or any
development involving a prospective change in the business, properties,
management, financial condition or results of operations of the Company and the
Subsidiaries taken as a whole, the effect of which change or development is, in
the judgment of UBS and Credit Suisse, so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the delivery
of the Shares on the terms and in the manner contemplated in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, or (2) since the time of execution of this
Agreement, there shall have occurred: (A) a suspension or material limitation in
trading in securities generally on the NYSE, the NYSE Amex Equities or the
NASDAQ; (B) a suspension or material limitation in trading in the Company’s
securities on the NASDAQ; (C) a general moratorium on commercial banking
activities declared by either federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; (D) an outbreak or escalation of hostilities or
acts of terrorism involving the United States or a declaration by the United
States of a national emergency or war; or (E) any other calamity or crisis or
any change in financial, political or economic conditions in the United States
or elsewhere, if the effect of any such event specified in clause (D) or (E), in
the judgment of UBS and Credit Suisse, makes it impractical or inadvisable to
proceed with the public offering or the delivery of the Shares on the terms and
in the manner contemplated in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, or (3) since the time of execution of this Agreement, there shall have
occurred any downgrading, or any notice or announcement shall have been given or
made of: (A) any intended or potential downgrading or (B) any watch, review or
possible change that does not indicate an affirmation or improvement in the
rating accorded any securities of or guaranteed by the Company or any Subsidiary
by any “nationally recognized statistical rating organization,” as that term is
defined in Rule 436(g)(2) under the Act.
If UBS and Credit Suisse elect to
terminate this Agreement as provided in this Section 7, the Company and each
other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the
Shares, as contemplated by this Agreement, is not carried out by the
Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Company shall be unable to comply with any of the
terms of this Agreement, the Company shall not be under any obligation or
liability under this Agreement (except to the extent provided in Sections 4(n),
5 and 9 hereof), and the Underwriters shall be under no obligation or liability
to the Company under this Agreement (except to the extent provided in Section 9
hereof) or to one another hereunder.
8. Increase in Underwriters’
Commitments. Subject to Sections 6 and 7 hereof, if any
Underwriter shall default in its obligation to take up and pay for the Firm
Shares to be purchased by it hereunder (otherwise than for a failure of a
condition set forth in Section 6 hereof or a reason sufficient to justify the
termination of this Agreement under the provisions of Section 7 hereof) and if
the number of Firm Shares which all Underwriters so defaulting shall have agreed
but failed to take up and pay for does not exceed 10% of the total number of
Firm Shares, the non-defaulting Underwriters (including the Underwriters, if
any, substituted in the manner set forth below) shall take up and pay for (in
addition to the aggregate number of Firm Shares they are obligated to purchase
pursuant to Section 1 hereof) the number of Firm Shares agreed to be purchased
by all such defaulting Underwriters, as hereinafter provided. Such
Shares shall be taken up and paid for by such non-defaulting Underwriters in
such amount or amounts as you may designate with the consent of each Underwriter
so designated or, in the event no such designation is made, such Shares shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Shares set forth opposite the names of such
non-defaulting Underwriters in Schedule
A.
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Without relieving any defaulting
Underwriter from its obligations hereunder, the Company agrees with the
non-defaulting Underwriters that it will not sell any Firm Shares hereunder
unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
If a new Underwriter or Underwriters
are substituted by the Underwriters or by the Company for a defaulting
Underwriter or Underwriters in accordance with the foregoing provision, the
Company or you shall have the right to postpone the time of purchase for a
period not exceeding five business days in order that any necessary changes in
the Registration Statement and the Prospectus and other documents may be
effected.
The term “Underwriter” as used in this
Agreement shall refer to and include any Underwriter substituted under this
Section 8 with like effect as if such substituted Underwriter had originally
been named in Schedule
A hereto.
If the aggregate number of Firm Shares
which the defaulting Underwriter or Underwriters agreed to purchase exceeds 10%
of the total number of Firm Shares which all Underwriters agreed to purchase
hereunder, and if neither the non-defaulting Underwriters nor the Company shall
make arrangements within the five business day period stated above for the
purchase of all the Firm Shares which the defaulting Underwriter or Underwriters
agreed to purchase hereunder, this Agreement shall terminate without further act
or deed and without any liability on the part of the Company to any Underwriter
and without any liability on the part of any non-defaulting Underwriter to the
Company. Nothing in this paragraph, and no action taken hereunder,
shall relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
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9. Indemnity and
Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors, officers and members, any person who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and any “affiliate” (within the meaning of Rule 405 under the Act)
of such Underwriter, and the successors and assigns of all of the foregoing
persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
any such Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or arises out of or is based upon any omission
or alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as any
such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained
in, and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter through you to the Company expressly
for use in, the Registration Statement or arises out of or is based upon any
omission or alleged omission to state a material fact in the Registration
Statement in connection with such information, which material fact was not
contained in such information and which material fact was required to be stated
in such Registration Statement or was necessary to make such information not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact included in any Prospectus (the term Prospectus for the purpose of
this Section 9 being deemed to include any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus and any amendments or
supplements to the foregoing), in any Covered Free Writing Prospectus, in any
“issuer information” (as defined in Rule 433 under the Act) of the Company,
which “issuer information” is required to be, or is, filed with the Commission,
or in any Prospectus together with any combination of one or more of the Covered
Free Writing Prospectuses, if any, or arises out of or is based upon any
omission or alleged omission 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, except, with respect to such Prospectus or any Permitted
Free Writing Prospectus, insofar as any such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in, such Prospectus or
Permitted Free Writing Prospectus or arises out of or is based upon any omission
or alleged omission to state a material fact in such Prospectus or Permitted
Free Writing Prospectus in connection with such information, which material fact
was not contained in such information and which material fact was necessary in
order to make the statements in such information, in the light of the
circumstances under which they were made, not misleading.
(b) Each
Underwriter severally agrees to indemnify, defend and hold harmless the Company,
its directors and officers, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person may
incur under the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in, the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company), or
arises out of or is based upon any omission or alleged omission to state a
material fact in such Registration Statement in connection with such
information, which material fact was not contained in such information and which
material fact was required to be stated in such Registration Statement or was
necessary to make such information not misleading or (ii) any untrue statement
or alleged untrue statement of a material fact contained in, and in conformity
with information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in, a
Prospectus or a Permitted Free Writing Prospectus, or arises out of or is based
upon any omission or alleged omission to state a material fact in such
Prospectus or Permitted Free Writing Prospectus in connection with such
information, which material fact was not contained in such information and which
material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not
misleading.
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(c) If
any action, suit or proceeding (each, a “Proceeding”) is
brought against a person (an “indemnified party”)
in respect of which indemnity may be sought against the Company or an
Underwriter (as applicable, the “indemnifying party”)
pursuant to subsection (a) or (b), respectively, of this Section 9, such
indemnified party shall promptly notify such indemnifying party in writing of
the institution of such Proceeding and such indemnifying party shall assume the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the
omission to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which such indemnifying party may have to
any indemnified party or otherwise. The indemnified party or parties
shall have the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have
been authorized in writing by the indemnifying party in connection with the
defense of such Proceeding or the indemnifying party shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
defend such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to such
indemnifying party (in which case such indemnifying party shall not have the
right to direct the defense of such Proceeding on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne
by such indemnifying party and paid as incurred (it being understood, however,
that such indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The
indemnifying party shall not be liable for any settlement of any Proceeding
effected without its written consent but, if settled with its written consent,
such indemnifying party agrees to indemnify and hold harmless the indemnified
party or parties from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this Section 9(c), then the indemnifying party agrees that it shall
be liable for any settlement of any Proceeding effected without its written
consent if (i) such settlement is entered into more than 120 business days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have fully reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days’
prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault or culpability or a failure to act by or on behalf of such indemnified
party.
- 29
-
(d) If
the indemnification provided for in this Section 9 is unavailable to an
indemnified party under subsections (a) and (b) of this Section 9 or
insufficient to hold an indemnified party harmless in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same respective proportions as the
total proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Company, and the total
underwriting discounts and commissions received by the Underwriters, bear to the
aggregate public offering price of the Shares. The relative fault of
the Company on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company or by the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, damages, expenses, liabilities and
claims referred to in this subsection shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(e) The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in subsection (d) above. Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations to
contribute pursuant to this Section 9 are several in proportion to their
respective underwriting commitments and not joint.
- 30
-
(f) The
indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Company contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of any Underwriter, or any of their respective partners,
directors, officers or members or any person (including each partner, officer,
director or member of such person) who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or on
behalf of the Company, directors or officers or any person who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and shall survive any termination of this Agreement or the
issuance and delivery of the Shares. The Company and each Underwriter
agree promptly to notify each other of the commencement of any Proceeding
against it and, in the case of the Company, against any of the Company’s
officers or directors in connection with the issuance and sale of the Shares, or
in connection with the Registration Statement, any Basic Prospectus, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing
Prospectus.
10. Information Furnished by the
Underwriters. The statements set forth on the cover page of
the Prospectus Supplement and the statements set forth in the Underwriting
section of the Prospectus Supplement, under the headings
Over-Allotment Option, Commissions and Discounts and Price Stabilization, Short
Positions, only insofar as such statements relate to the amount of selling
concession and reallowance or to over-allotment and stabilization activities
that may be undertaken by the Underwriters, constitute the only information
furnished by or on behalf of the Underwriters, as such information is referred
to in Sections 3 and 9 hereof.
11. Notices. Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriters,
shall be sufficient in all respects if delivered or sent to UBS Securities LLC,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Syndicate Department, and
to Credit Suisse Securities (USA) LLC, Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇; if to the Company, shall be sufficient in all respects if delivered or
sent to the Company at the offices of the Company at c/o Energy XXI U.S.A.,
Inc., Suite 2626, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (facsimile: 713-351-3300),
Attention: ▇▇ ▇▇▇▇, Vice President of Legal.
12. Governing Law;
Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating
to this Agreement (“Claim”), directly or
indirectly, shall be governed by, and construed in accordance with, the laws of
the State of New York. The section headings in this Agreement have
been inserted as a matter of convenience of reference and are not a part of this
Agreement.
- 31
-
13. Submission to
Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have exclusive jurisdiction over the adjudication of such matters, and the
Company consents to the jurisdiction of such courts and personal service with
respect thereto. The Company hereby consents to personal
jurisdiction, service and venue in any court in which any Claim arising out of
or in any way relating to this Agreement is brought by any third party against
any Underwriter or any indemnified party. Each Underwriter and the
Company (on its behalf and, to the extent permitted by applicable law, on behalf
of its stockholders and affiliates) waive all right to trial by jury in any
action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this
Agreement. The Company agrees that a final judgment in any such
action, proceeding or counterclaim brought in any such court shall be conclusive
and binding upon the Company and may be enforced in any other courts to the
jurisdiction of which the Company is or may be subject, by suit upon such
judgment.
14. Parties at
Interest. The Agreement herein set forth has been and is made
solely for the benefit of the Underwriters and the Company and to the extent
provided in Section 9 hereof the controlling persons, partners, directors,
officers, members and affiliates referred to in such Section, and their
respective successors, assigns, heirs, personal representatives and executors
and administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
15. No Fiduciary
Relationship. The Company hereby acknowledges that the
Underwriters are acting solely as underwriters in connection with the purchase
and sale of the Company’s securities. The Company further
acknowledges that the Underwriters are acting pursuant to a contractual
relationship created solely by this Agreement entered into on an arm’s length
basis, and in no event do the parties intend that the Underwriters act or be
responsible as a fiduciary to the Company, its management, stockholders or
creditors or any other person in connection with any activity that the
Underwriters may undertake or have undertaken in furtherance of the purchase and
sale of the Company’s securities, either before or after the date
hereof. The Underwriters hereby expressly disclaim any fiduciary or
similar obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and the Company hereby confirms its understanding and agreement to that
effect. The Company and the Underwriters agree that they are each
responsible for making their own independent judgments with respect to any such
transactions and that any opinions or views expressed by the Underwriters to the
Company regarding such transactions, including, but not limited to, any opinions
or views with respect to the price or market for the Company’s securities, do
not constitute advice or recommendations to the Company. The Company
and the Underwriters agree that the Underwriters are acting as principal and not
the agent or fiduciary of the Company, and no Underwriter has assumed, and none
of them will assume, any advisory responsibility in favor of the Company with
respect to the transactions contemplated hereby or the process leading thereto
(irrespective of whether any Underwriter has advised or is currently advising
the Company on other matters). The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company
may have against the Underwriters with respect to any breach or alleged breach
of any fiduciary, advisory or similar duty to the Company in connection with the
transactions contemplated by this Agreement or any matters leading up to such
transactions.
- 32
-
16. Counterparts. This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
17. Successors and
Assigns. This Agreement shall be binding upon the Underwriters
and the Company and their successors and assigns and any successor or assign of
any substantial portion of the Company’s and any of the Underwriters’ respective
businesses and/or assets.
18. Miscellaneous. UBS,
an indirect, wholly owned subsidiary of UBS AG, is not a bank and is separate
from any affiliated bank, including any U.S. branch or agency of UBS
AG. Because UBS is a separately incorporated entity, it is solely
responsible for its own contractual obligations and commitments, including
obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not
deposits, are not insured by the Federal Deposit Insurance Corporation, are not
guaranteed by a branch or agency, and are not otherwise an obligation or
responsibility of a branch or agency.
[The Remainder of
This Page Intentionally Left Blank; Signature Page
Follows]
- 33
-
If the foregoing correctly sets forth
the understanding between the Company and the several Underwriters, please so
indicate in the space provided below for that purpose, whereupon this Agreement
and your acceptance shall constitute a binding agreement between the Company and
the Underwriters, severally.
|
Very truly yours,
|
|
|
ENERGY XXI (BERMUDA) LIMITED
|
|
|
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
|
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
|
|
Title: Chairman and Chief Executive Officer
|
|
Signature
Page to the Common Stock Underwriting Agreement
|
Accepted
and agreed to as of the date first above written, on behalf of themselves
and as representatives of the several Underwriters named in Schedule
A
|
||
|
By:
UBS Securities
LLC
|
||
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
Title:
|
Associate
Director
|
|
|
By:
Credit Suisse Securities (USA) LLC
|
||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
|
|
|
Title:
|
Managing
Director
|
|
Signature
Page to the Common Stock Underwriting Agreement
SCHEDULE
A
|
Underwriter
|
Number of
Firm Shares
|
|||
|
UBS
SECURITIES LLC
|
3,312,000 | |||
|
CREDIT
SUISSE SECURITIES (USA) LLC
|
1,320,000 | |||
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇ LIMITED
|
1,320,000 | |||
|
▇▇▇▇▇▇▇
▇▇▇▇ & COMPANY, LLC
|
1,080,000 | |||
|
▇▇▇▇▇▇
▇▇▇▇▇▇ & COMPANY, INC.
|
960,000 | |||
|
▇▇▇▇▇▇
▇▇▇▇ INCORPORATED
|
960,000 | |||
|
CAPITAL
ONE SOUTHCOAST, INC.
|
720,000 | |||
|
SCOTIA
CAPITAL (USA) INC.
|
492,000 | |||
|
NATIXIS
BLEICHROEDER LLC
|
492,000 | |||
|
TD
SECURITIES (USA) LLC
|
492,000 | |||
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ AND COMPANY LLC
|
492,000 | |||
|
▇▇▇▇▇▇▇▇▇
CAPITAL PARTNERS, LLC
|
120,000 | |||
|
▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, LLC
|
120,000 | |||
|
MACQUARIE
CAPITAL (USA) INC.
|
120,000 | |||
|
Total
|
12,000,000 | |||
SCHEDULE
B
 |
Issuer
Free Writing Prospectus dated October 28, 2010
Relating
to Preliminary Prospectus Supplements
dated
October 27, 2010
Filed
pursuant to Rule 433
Registration
Statement No. 333-165739
|
|
12,000,000
shares of Common Stock
|
|
This term
sheet relates to the offering of common stock (the “Common Stock Offering”)
described below and should be read together with the preliminary prospectus
supplement dated October 27, 2010 relating to the Common Stock Offering,
together with the documents incorporated by reference therein and the
accompanying prospectus dated March 26, 2010, before making a decision in
connection with an investment in the securities. The information in this term
sheet supersedes the information contained in the preliminary prospectus
supplement to the extent that it is inconsistent therewith. Terms used but not
defined herein have the meaning ascribed to them in the preliminary prospectus
supplement.
General
|
Issuer:
|
Energy
XXI (Bermuda) Limited
|
|
Ticker/Exchange:
|
EXXI/NASDAQ
|
Common Stock
Offering
|
The Security:
|
Common
stock, par value $0.005 per share
|
|
Offering Size:
|
12,000,000
shares
|
|
Over-allotment Option:
|
1,800,000
shares
|
|
Price to Public
|
$20.75
per share
|
|
Joint-Bookrunners:
|
UBS
Investment Bank and Credit Suisse
|
|
Joint Lead Managers:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ & Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
Incorporated and
Capital
One Southcoast
|
|
Senior Co-Managers:
|
Scotia
Capital, Natixis Bleischroeder LLC, TD Securities and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
Co-Managers:
|
▇▇▇▇▇▇▇▇▇
Capital Partners, LLC, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC and Macquarie
Capital
|
|
Net Proceeds:
|
EXXI
estimates that the net proceeds from the Common Stock Offering, after
deducting underwriting discounts and commission and estimated offering
expenses, will be approximately $236.7 million (or approximately $272.3
million if the underwriters exercise their option to purchase additional
shares in full)
|
|
Use of Proceeds:
|
EXXI
intends to use approximately $132.2 million of the net proceeds from this
offering and from the concurrent offering of convertible perpetual
preferred stock to redeem approximately $119.7 million aggregate principal
amount of its 16% Second Lien Junior Secured Notes due 2014 and
approximately $91.5 million of the net proceeds to repay amounts
outstanding under Energy XXI Gulf Coast’s revolving credit
facility. The remainder of such net proceeds will be used for
general corporate purposes, which may include purchases of the 16% Second
Lien Junior Secured Notes due 2014 in the open market, repayment of other
outstanding debt, accelerating development of existing reserves or
acquisitions.
|
|
CUSIP
|
▇▇▇▇▇▇▇▇▇
|
|
ISIN
|
BMG100821401
|
Concurrent Preferred Stock
Offering
|
Concurrent offering:
|
We
are offering in a concurrent offering (the “Convertible Preferred Stock
Offering”) 1,000,000 shares of 5.625% convertible perpetual preferred
stock (“Convertible Preferred Stock”) (1,150,000 shares if the
underwriters exercise their over-allotment option in full). We
estimate that the net proceeds from the Convertible Preferred Stock
Offering, after deducting underwriting discounts and commission and
estimated offering expenses, will be approximately $245.8 million ($282.7
million if the underwriters exercise their over-allotment option in
full). We intend to use the net proceeds from the Convertible
Preferred Stock Offering in the same manner as the net proceeds of the
Common Stock Offering. The consummation of the Common Stock
Offering is not conditioned on the closing of the Convertible Preferred
Stock Offering. We may elect not to complete the Convertible
Preferred Stock Offering.
|
Other Offering
Information
|
Pricing Date:
|
October
28, 2010
|
|
Trade Date:
|
October
29, 2010
|
|
Settlement Date:
|
November
3, 2010 (T+3)
|
The
issuer has filed a registration statement (including a prospectus) with the SEC
for the offering to which this communication relates. Before you invest,
you should read the prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by
visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the
issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling UBS Securities LLC toll
free at 1-888-827-7275 or Credit Suisse Securities (USA) LLC toll free at
1-800-221-1037.
EXHIBIT
A
Lock-Up
Agreement
October
28, 2010
UBS
Securities LLC
Credit
Suisse Securities (USA) LLC
Together
with the other Underwriters
named in
Schedule A to the Underwriting Agreement
referred
to herein
c/o UBS
Securities LLC
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies
and Gentlemen:
This Lock-Up Agreement is being
delivered to you in connection with the proposed Underwriting Agreement (the
“Underwriting
Agreement”) to be entered into by Energy XXI (Bermuda) Limited, a limited
exempt company organized under the laws of Bermuda (the “Company”), and you
and the other underwriters named in Schedule A to the Underwriting Agreement,
with respect to the public offering (the “Offering”) of common
stock, par value $.005 per share, of the Company (the “Common
Stock”).
In order to induce you to enter into
the Underwriting Agreement, the undersigned agrees that, for a period (the
“Lock-Up
Period”) beginning on the date hereof and ending on, and including, the
date that is 60 days after the date of the final prospectus supplement relating
to the Offering, the undersigned will not, without the prior written consent of
UBS Securities LLC and Credit Suisse Securities (USA) LLC, (i) sell, offer to
sell, contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or indirectly,
or file (or participate in the filing of) a registration statement with the
Securities and Exchange Commission (the “Commission”) in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission promulgated thereunder (the “Exchange Act”) with
respect to, any Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or any securities convertible into or
exchangeable or exercisable for, or any warrants or other rights to purchase,
the foregoing, (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or any securities convertible into or
exchangeable or exercisable for, or any warrants or other rights to purchase,
the foregoing, whether any such transaction is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise or (iii) publicly
announce an intention to effect any transaction specified in clause (i) or
(ii). The foregoing sentence shall not apply to (a) the registration
of the offer and sale of Common Stock as contemplated by the Underwriting
Agreement and the sale of the Common Stock to the Underwriters (as defined in
the Underwriting Agreement) in the Offering, (b) bona fide gifts, provided the
recipient thereof agrees in writing with the Underwriters to be bound by the
terms of this Lock-Up Agreement, (c) sales pursuant to an existing trading
plan established under Rule 10b5-1 of the Exchange Act or (d) dispositions
to any trust for the direct or indirect benefit of the undersigned and/or the
immediate family of the undersigned, provided that such trust agrees in writing
with the Underwriters to be bound by the terms of this Lock-Up
Agreement. For purposes of this paragraph, “immediate family” shall
mean the undersigned and the spouse, any lineal descendent, father, mother,
brother or sister of the undersigned.
A-1
In addition, the undersigned hereby
waives any rights the undersigned may have to require registration of Common
Stock in connection with the filing of a registration statement relating to the
Offering. The undersigned further agrees that, for the Lock-Up
Period, the undersigned will not, without the prior written consent of UBS
Securities LLC and Credit Suisse Securities (USA) LLC, make any demand for, or
exercise any right with respect to, the registration of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
warrants or other rights to purchase Common Stock or any such
securities.
The undersigned hereby confirms that
the undersigned has not, directly or indirectly, taken, and hereby covenants
that the undersigned will not, directly or indirectly, take, any action
designed, or which has constituted or will constitute or might 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 shares of Common
Stock.
The undersigned hereby authorizes the
Company and its transfer agent, during the Lock-Up Period, to decline the
transfer of or to note stop transfer restrictions on the stock register and
other records relating to shares of Common Stock or other securities subject to
this Lock-Up Agreement of which the undersigned is the record holder, and, with
respect to shares of Common Stock or other securities subject to this Lock-Up
Agreement of which the undersigned is the beneficial owner but not the record
holder, the undersigned hereby agrees to cause such record holder to authorize
the Company and its transfer agent, during the Lock-Up Period, to decline the
transfer of or to note stop transfer restrictions on the stock register and
other records relating to such shares or other securities.
* * *
A-2
If (i) the Company notifies you in
writing that it does not intend to proceed with the Offering, (ii) the
registration statement filed with the Commission with respect to the Offering is
withdrawn or (iii) for any reason the Underwriting Agreement shall be terminated
prior to the “time of purchase” (as defined in the Underwriting Agreement), this
Lock-Up Agreement shall be terminated and the undersigned shall be released from
its obligations hereunder.
|
Yours
very truly,
|
|
|
|
Name:
|
▇-▇
▇▇▇▇▇▇▇
▇-▇
LIST OF
PARTIES TO EXECUTE LOCK-UP AGREEMENTS
|
Name
|
Position
|
|
|
1. ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
Chairman
and Chief Executive Officer
|
|
|
2. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
|
Chief
Financial Officer
|
|
|
3. ▇▇▇
▇▇▇▇▇▇▇▇
|
Executive
Vice President of Exploration and Production
|
|
|
4. ▇▇▇▇
▇▇▇▇
|
Senior
Vice President Marketing & Risk Management
|
|
|
5. ▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ III
|
Vice
President, Land
|
|
|
6. ▇▇
▇▇▇▇
|
Vice
President of Law
|
|
|
7. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
Vice
President of Investor Relations and Communications
|
|
|
8. ▇▇▇▇
▇▇▇▇▇▇
|
Senior
Vice President, Chief Accounting Officer and Chief Information
Officer
|
|
|
9. ▇▇▇▇▇
▇▇▇▇▇▇
|
Vice
President of Drilling and Production
|
|
|
10. ▇▇▇
▇’▇▇▇▇▇▇▇
|
Vice
President of Corporate Development and Planning
|
|
|
11. ▇▇▇▇
▇▇▇
|
Vice
President, Controller
|
|
|
12. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
Vice
President, Human Resources and Administration
|
|
|
13. ▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
Director
|
|
|
14. ▇▇▇▇
▇▇▇▇▇▇▇
|
Director
|
|
|
15. ▇▇▇▇▇
▇▇▇▇▇▇ Dunwoody
|
Director
|
|
|
16. Hill
▇. ▇▇▇▇▇▇▇▇
|
Director
|
|
|
17.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
|
Director
|
|
|
18.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
Director
|
A-1-1
EXHIBIT
B
FORM OF
OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇
|
1.
|
Organization and Good
Standing. Each of the Company’s subsidiaries listed on
Annex A
(the “Delaware
Subsidiaries”) hereto has been duly organized or incorporated and
is validly existing as a limited liability company or corporation in good
standing under the laws of the State of Delaware, with full corporate
power and authority to own, lease and operate its properties and to
conduct its business as currently conducted or as to be conducted, in each
case as described in the Disclosure Package and the
Prospectus.
|
|
2.
|
Valid Capital
Stock. All of the issued shares of capital stock of the
Delaware Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable and, except as otherwise disclosed in the
Disclosure Package and the Prospectus, are owned directly or indirectly by
the Company, in each case subject to no security interest, other
encumbrance or adverse claim (A) in respect of which a financing statement
under the Uniform Commercial Code of the States of Delaware, Louisiana or
Texas naming such subsidiary as a debtor is on file as of a recent date in
the office of the Secretary of State of the States of Delaware, Louisiana
or Texas or (B) otherwise known to us, without independent investigation,
in each case, other than liens in connection with the First Lien
Facility.
|
|
3.
|
No
Conflicts. The execution, delivery and performance of
the Underwriting Agreement, the issuance and sale of the Shares and the
consummation of the transactions contemplated thereby will not conflict
with, require any approval, authorization or consent under, result in any
breach or violation of or constitute a default under (nor constitute any
event which, with notice, lapse of time or both, would result in any
breach or violation of, constitute a default under or give the holder of
any indebtedness (or a person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a part of such
indebtedness under) (or result in the creation or imposition of a lien,
charge or encumbrance on any property or assets of the Company or any
Subsidiary pursuant to) (i) the Organizational Documents of any of the
Delaware Subsidiaries, (ii) any agreement or other instrument filed
as an exhibit to the Registration Statement or any Incorporated Document,
(iii) the Delaware General Corporation Law, the Delaware Limited Liability
Company Act, the laws of the State of Texas or federal law other than the
registration of the Shares under the Act, which has been effected (except
that such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriters
nor any opinion with respect to the Conduct Rules of
FINRA).
|
B-1
|
4.
|
Compliance. The
Registration Statement, the Pre-Pricing Prospectus and the Prospectus
appears, on their face, to be appropriately responsive, in all material
respects, to the applicable requirements of the Act, except that in each
case such counsel need express no opinion with respect to the financial
statements and schedules, and other financial or reserve data, contained
in the Registration Statement, the Pre-Pricing Prospectus and the
Prospectus; the conditions to the use of Form S-3 in connection with the
offering and sale of the Shares as contemplated by the Underwriting
Agreement have been satisfied; the Registration Statement meets, and the
offering and sale of the Shares as contemplated by the Underwriting
Agreement complies with, the requirements of Rule 415 under the Act
(including, without limitation, Rule 415(a)(5) under the Act); and each
Incorporated Document, at the time such document was filed with the
Commission or at the time such document became effective, as applicable,
appeared, on its face, to be appropriately responsive in all material
respects with the requirements of the Exchange Act (except as to the
financial statements and schedules, and other financial data derived
therefrom, contained in such document, as to which we express no
opinion).
|
|
5.
|
Ineligible
Issuer. To our knowledge, (i) the Company is not an
“ineligible issuer” (as defined in Rule 405 under the Act) as of the
eligibility determination date for purposes of Rules 164 and 433 under the
Act with respect to the offering of the Shares contemplated by the
Registration Statement and (ii) the Registration Statement constitutes an
“automatic shelf registration statement” (as defined in Rule 405 under the
Act).
|
|
6.
|
Effective Registration
Statement. The Registration Statement has become
effective under the Act and, to our knowledge, no stop order proceedings
with respect thereto are pending or threatened under the Act, and any
required filing of the Prospectus and any supplement thereto pursuant to
Rule 424 or Rule 430B under the Act has been made in the manner and within
the time period required by such Rule 424 and in compliance with Rule 430B
under the Act.
|
|
7.
|
Investment
Company. The Company is not an “investment company”
within the meaning of and subject to regulation under the Investment
Company Act of 1940, as amended.
|
|
8.
|
Summary
Statements. The statements in the Disclosure Package and
the Prospectus under the heading “Description of Capital Stock,” insofar
as such statements constitute summaries of documents or legal proceedings
or refer to matters of law or legal conclusions, constitute accurate
summaries of such documents, legal proceedings and laws in all material
respects.
|
|
9.
|
No Registration
Rights. No person or entity has the right, pursuant to
the terms of any contract, agreement or other instrument described in or
filed as an exhibit to the Registration Statement or any document
incorporated therein by reference or otherwise known to us, to cause the
Company to register under the Act any shares of Common Stock or shares of
any other capital stock or other equity interest in the Company or to
include any such shares or interest in the Registration Statement or the
offering contemplated thereby.
|
In rendering such opinion, such counsel
may (i) rely in respect of matters of fact upon certificates of officers and
employees of the Company and the Subsidiaries and upon information obtained from
public officials, (ii) assume that all documents submitted to such counsel as
originals are authentic, that all copies submitted to such counsel conform to
the originals thereof and that the signatures on all documents examined by such
counsel are genuine, (iii) state that its opinion is limited to matters governed
by federal law and the Delaware General Corporation Law and the Delaware Limited
Liability Company Act and the laws of the State of Texas, and (iv) state that
they express no opinion with respect to (A) any permits to own or operate any
real or personal property or (B) state or local taxes or tax statutes to which
any shareholders of the Company or any Subsidiary of the Company may be
subject.
B-2
In addition, such counsel shall state
that they have participated in conferences with officers and other
representatives of the Company, the independent public accountants of the
Company and your representatives, at which the contents of the Registration
Statement, the Disclosure Package and the Prospectus and related matters were
discussed, and although such counsel has not independently verified, is not
passing upon, and is not assuming any responsibility for the accuracy,
completeness or fairness of the statements contained in, the Registration
Statement, the Disclosure Package and the Prospectus (except to the extent
specified in the foregoing opinion), based on the foregoing, no facts have come
to such counsel’s attention that have caused such counsel to believe
that:
(A) the
Registration Statement, as of the Effective Time, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(B) the
Disclosure Package (together with the public offering price per Share, number of
Firm Shares and number of Additional Shares), as of the Applicable Time,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or
(C) the
Prospectus, as of its date and at the time of purchase contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
it being understood that such counsel
expresses no statement or belief with respect to (i) the financial statements
and related schedules, including the notes and schedules thereto and the
auditor’s reports thereon, or any other financial and accounting and reserve
information, included in, or excluded from, the Registration Statement or the
Prospectus or the Disclosure Package, and (ii) representations and warranties
and other statements of fact included in the exhibits to the Registration
Statement.
Capitalized terms used herein without
definition shall have the respective meanings ascribed to them in the
Underwriting Agreement.
B-3
ANNEX
A TO EXHIBIT B
|
Name:
|
Jurisdiction:
|
|
|
Energy
XXI, Inc.
|
Delaware
|
|
|
Energy
XXI USA, Inc.
|
Delaware
|
|
|
Energy
XXI Gulf Coast, Inc.
|
Delaware
|
|
|
Energy
XXI Services, LLC
|
Delaware
|
|
|
Energy
XXI GOM, LLC
|
Delaware
|
|
|
Energy
XXI Texas Onshore, LLC (f/k/a Energy XXI Texas GP, LLC)
|
Delaware
|
|
|
Energy
XXI Onshore, LLC (f/k/a Energy XXI Texas, LP)
|
Delaware
|
B-Annex
A
EXHIBIT
C
FORM OF
OPINION OF INTERNAL COUNSEL
|
1.
|
Valid Capital
Stock. All of the Company’s options, warrants and other
rights to purchase or exchange any securities for shares of the Company’s
capital stock have been duly authorized and validly issued, conform to the
description thereof contained in each of the Disclosure Package and the
Prospectus.
|
|
2.
|
No Additional
Document. There are no contracts, licenses, agreements,
leases or documents of a character which are required to be described in
the Registration Statement, the Pre-Pricing Prospectus or the Prospectus
or to be filed as an exhibit to the Registration Statement or any
Incorporated Document which have not been so described or filed as
required.
|
|
3.
|
No Legal
Action. The Company is not a party to any legal or
governmental action or proceeding that challenges the validity or
enforceability, or seeks to enjoin the performance, of the Underwriting
Agreement and there are no actions, suits, claims, investigations or
proceedings pending, threatened or, to my
knowledge, contemplated to which the Company or any of the
Subsidiaries or any of their respective directors or officers is or would
be a party or to which any of their respective properties is or would be
subject at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or
agency which are required to be described in the Registration Statement,
the Pre-Pricing Prospectus or the Prospectus but are not so described as
required.
|
|
4.
|
No
Conflicts. The execution, delivery and performance of
the Underwriting Agreement, and the consummation of the transactions
contemplated thereby, and the issuance and sale of the Shares do not and
will not conflict with, require any approval (other than the approval of
the Company’s Board of Directors already obtained), authorization or
consent under, result in any breach or violation of or constitute a
default under (nor constitute any event which, with notice, lapse of time
or both, would result in any breach or violation of, constitute a default
under or give the holder of any indebtedness (or a person acting on such
holder’s behalf) the right to require the repurchase, redemption or
repayment of all or a part of such indebtedness under) (or result in the
creation or imposition of a lien, charge or encumbrance on any property or
assets of the Company or any Subsidiary pursuant to) (i) the
Organizational Documents of the Company or any of the Subsidiaries,
(ii) any agreement or other instrument filed as an exhibit to
the Registration Statement or any Incorporated Document, (iii) the
Delaware General Corporation Law, the Delaware Limited Liability Company
Act, the laws of the State of Texas or federal law other than the
registration of the Shares under the Act, which has been effected (except
that I express no opinion as to any necessary qualification under the
state securities or blue sky laws of the various jurisdictions in which
the Shares are being offered by the Underwriters nor any opinion with
respect to the Conduct Rules of
FINRA).
|
C-1
|
5.
|
Effective Registration
Statement. The Registration Statement has become
effective under the Act and, to my knowledge, no stop order proceedings
with respect thereto are pending or threatened under the Act, and any
required filing of the Prospectus and any supplement thereto pursuant to
Rule 424 or Rule 430B under the Act has been made in the manner and within
the time period required by such Rule 424 and in compliance with Rule 430B
under the Act.
|
|
6.
|
Good Standing and Foreign
Qualification. The Company and each of the Subsidiaries
are in good standing or are duly qualified to do business as a foreign
corporation, as the case may be, in each jurisdiction set forth opposite
its name on Annex A hereto.
|
|
7.
|
Summary
Statements. The statements in the Disclosure Package and
the Prospectus under the headings “Risk Factors,” “Management’s Discussion
and Analysis of Financial Condition and Results of Operations,” and
“Business,” insofar as such statements constitute summaries of documents
or legal proceedings or refer to matters of law or legal conclusions,
constitute accurate summaries of such documents, legal proceedings and
laws in all material respects.
|
|
8.
|
Shareholder
Rights. The Shares are free of contractual preemptive
rights, resale rights, rights of first refusal and similar
rights.
|
In rendering such opinion, such counsel
may (i) rely in respect of matters of fact upon certificates of officers and
employees of the Company and the Subsidiaries and upon information obtained from
public officials, (ii) assume that all documents submitted to such counsel as
originals are authentic, that all copies submitted to such counsel conform to
the originals thereof and that the signatures on all documents examined by such
counsel are genuine, (iii) state that its opinion is limited to matters governed
by federal law and the Delaware General Corporation Law and the Delaware Limited
Liability Company Act and the laws of the State of Texas, and (iv) state that
they express no opinion with respect to (A) any permits to own or operate any
real or personal property or (B) state or local taxes or tax statutes to which
any shareholders of the Company or any Subsidiary of the Company may be
subject.
In addition, such counsel shall state
that they have participated in conferences with officers and other
representatives of the Company, the independent public accountants of the
Company and your representatives, at which the contents of the Registration
Statement, the Disclosure Package and the Prospectus and related matters were
discussed, and although such counsel has not independently verified, is not
passing upon, and is not assuming any responsibility for the accuracy,
completeness or fairness of the statements contained in, the Registration
Statement, the Disclosure Package and the Prospectus (except to the extent
specified in the foregoing opinion), based on the foregoing, no facts have come
to such counsel’s attention that have caused such counsel to believe
that:
(A) the
Registration Statement, as of the Effective Time, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading,
C-2
(B) the
Disclosure Package (together with the public offering price per Share, number of
Firm Shares and number of Additional Shares), as of the Applicable Time,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or
(C) the
Prospectus, as of its date and at the time of purchase contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
it being understood that such counsel
expresses no statement or belief with respect to (i) the financial statements
and related schedules, including the notes and schedules thereto and the
auditor’s report thereon, or any other financial and accounting and reserve
information, included in, or excluded from, the Registration Statement or the
Prospectus or the Disclosure Package, and (ii) representations and warranties
and other statements of fact included in the exhibits to the Registration
Statement.
Capitalized terms used herein without
definition shall have the respective meanings ascribed to them in the
Underwriting Agreement.
C-3
ANNEX
A TO EXHIBIT C
Good
Standing and Foreign Qualification
|
Name:
|
Jurisdiction:
|
Foreign Qualification:
|
||
|
Energy
XXI (Bermuda) Limited
|
Bermuda
|
None
|
||
|
Energy
XXI (US Holdings) Limited
|
Bermuda
|
None
|
||
|
Energy
XXI, Inc.
|
Delaware
|
None
|
||
|
Energy
XXI USA, Inc.
|
Delaware
|
None
|
||
|
Energy
XXI Gulf Coast, Inc.
|
Delaware
|
LA
|
||
|
Energy
XXI Services, LLC
|
Delaware
|
TX
|
||
|
Energy
XXI GOM, LLC
|
Delaware
|
LA,
TX
|
||
|
Energy
XXI Texas Onshore, LLC
|
Delaware
|
LA,
TX
|
||
|
(f/k/a
Energy XXI Texas GP, LLC)
|
||||
|
Energy
XXI Onshore, LLC
|
Delaware
|
LA,
TX
|
||
|
(f/k/a
Energy XXI Texas, LP)
|
C-Annex
A
EXHIBIT
D
FORM OF OPINION OF
▇▇▇▇▇▇▇
|
1.
|
The
Company is an exempted company duly incorporated with limited liability
and existing in good standing under the laws of Bermuda. The
Company possesses the capacity to ▇▇▇ and be sued in its own name and to
own the shares of Energy XXI (US Holdings) Limited (the “Bermuda
Subsidiary”) and participate in the Energy XXI (Bermuda) Limited Long-Term
Incentive Plan, which we are informed are its sole business
activities.
|
|
2.
|
The
Bermuda Subsidiary is an exempted company duly incorporated with limited
liability and existing in good standing under the laws of
Bermuda. The Company possesses the capacity to ▇▇▇ and be sued
in its own name and to own the shares of Energy XXI, Inc., a Delaware
corporation, which we are informed is its sole business
activity.
|
|
3.
|
The
Company has all requisite corporate power and authority to enter into,
execute, deliver, and perform its obligations under this Agreement and to
take all action as may be necessary to complete the transactions
contemplated thereby, including, without limitation to issue and sell the
common shares of the Company (the “Shares”) as provided in the
Underwriting Agreement.
|
|
4.
|
The
execution, delivery and performance by the Company of this Agreement to
which it is a party and the transactions contemplated thereby have been
duly authorized by all necessary corporate action on the part of the
Company.
|
|
5.
|
This
Agreement has been duly executed by the
Company.
|
|
6.
|
The
execution, delivery and performance by the Company of this Agreement and
the transactions contemplated thereby do not and will not violate,
conflict with or constitute a default under (i) any requirement of any law
or any regulation of Bermuda or (ii) the Certificate of Incorporation,
Memorandum of Association and Bye-Laws of the Company or the
Subsidiary.
|
|
7.
|
The
authorized capital of the Company at the date of this opinion consists of
US$1,002,500 divided into 200,000,000 common shares of par value US$0.005
each and 2,500,000 preference shares of par value US$0.001
each. Based on the Officer’s Certificate, the issued and
outstanding capital of the Company consists of [55,257,136] common shares
that have been duly authorized and validly issued, credited as fully-paid,
non-assessable and free of statutory pre-emption
rights.
|
|
8.
|
The
Shares have been duly authorized and when duly issued and paid for
pursuant to and in accordance with the terms of the Underwriting Agreement
and the Resolutions, the Shares will be validly issued, fully paid,
non-assessable shares of the Company, free of statutory pre-emption
rights.
|
D-1
|
9.
|
The
statements in the Prospectus under the heading “Description of Capital
Stock” insofar as they relate to the laws of Bermuda, accurately and
correctly describe the capital stock of the Company, including the Shares,
in all material respects and insofar as statements under those headings
constitute summaries of documents or legal proceedings or refer to matters
of law or legal conclusions, each as they relate to the laws of Bermuda,
constitute accurate summaries of those documents, legal proceedings and
laws in all material respect.
|
D-2
EXHIBIT
E
OFFICERS’
CERTIFICATE
Each of the undersigned, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇., Chairman and Chief Executive Officer of Energy XXI (Bermuda)
Limited, a limited exempt company organized under the laws of Bermuda (the
“Company”), and
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial Officer of the Company, on behalf of the
Company, does hereby certify pursuant to Section 6(k) of that certain
Underwriting Agreement dated October 28, 2010 (the “Underwriting
Agreement”) among the Company, UBS Securities LLC and Credit Suisse
Securities (USA) LLC, that as of November 3, 2010:
|
1.
|
He
has reviewed the Registration Statement, each Pre-Pricing Prospectus, the
Prospectus and each Permitted Free Writing
Prospectus.
|
|
2.
|
The
representations and warranties of the Company as set forth in the
Underwriting Agreement are true and correct as of the date hereof and as
if made on the date hereof.
|
|
3.
|
The
Company has performed all of its obligations under the Underwriting
Agreement as are to be performed at or before the date
hereof.
|
|
4.
|
The
conditions set forth in paragraph (j) of Section 6 of the Underwriting
Agreement have been met.
|
Capitalized terms used herein without
definition shall have the respective meanings ascribed to them in the
Underwriting Agreement.
In
Witness Whereof, the undersigned have hereunto set their hands on this
November 3, 2010.
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
|
Title:
|
Chairman
and Chief Executive
Officer
|
|
Name:
|
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Title:
|
Chief
Financial
Officer
|
E-1