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EXHIBIT 1
REMINGTON OIL AND GAS CORPORATION
(a Delaware corporation)
3,000,000 Shares of Common Stock
UNDERWRITING AGREEMENT
Dated: March 22, 2002
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TABLE OF CONTENTS
PAGE
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SECTION 1. Representations and Warranties............................................................2
(a) Representations and Warranties by the Company................................................2
(i) Compliance with Registration Requirements...........................................2
(ii) Incorporated Documents..............................................................2
(iii) Independent Accountants.............................................................3
(iv) Financial Statements................................................................3
(v) No Material Adverse Change in Business..............................................3
(vi) Good Standing of the Company........................................................3
(vii) Good Standing of the Subsidiaries...................................................4
(viii) Capitalization......................................................................4
(ix) Authorization of Agreement..........................................................4
(x) Authorization and Description of Securities.........................................4
(xi) Absence of Defaults and Conflicts...................................................5
(xii) Absence of Labor Dispute............................................................5
(xiii) Absence of Proceedings..............................................................5
(xiv) Accuracy of Exhibits................................................................6
(xv) Absence of Further Requirements.....................................................6
(xvi) Possession of Intellectual Property.................................................6
(xvii) Possession of Licenses and Permits..................................................6
(xviii) Title to Property...................................................................7
(xix) Oil and Gas.........................................................................7
(xx) Investment Company Act..............................................................7
(xxi) Environmental Laws..................................................................7
(xxii) Registration Rights.................................................................8
(xxiii) Stabilizing Transactions; Distribution of Property..................................8
(xxiv) Statistical and Market Data.........................................................8
(xxv) Finders' Fee........................................................................8
(xxvi) Payment of Taxes....................................................................8
(xxvii) Internal Controls...................................................................9
(xxviii) Insurance...........................................................................9
(xxix) Related Party Transactions..........................................................9
(xxx) Offering Materials..................................................................9
(b) Officer's Certificates.......................................................................9
SECTION 2. Sale and Delivery to Underwriter; Closing................................................10
(a) Securities..................................................................................10
(b) Payment.....................................................................................10
SECTION 3. Covenants of the Company.................................................................10
(a) Compliance with Securities Regulations and Commission Requests..............................10
(b) Filing of Amendments........................................................................10
(c) Delivery of Registration Statements.........................................................11
(d) Delivery of Prospectuses....................................................................11
(e) Continued Compliance with Securities Laws...................................................11
(f) Blue Sky Qualifications.....................................................................11
(g) Rule 158....................................................................................12
(h) Use of Proceeds.............................................................................12
(i) Listing.....................................................................................12
(j) Restriction on Sale of Securities...........................................................12
(k) Reporting Requirements......................................................................12
SECTION 4. Payment of Expenses......................................................................12
SECTION 5. Conditions of Underwriter's Obligations..................................................13
(a) Effectiveness of Registration Statement.....................................................13
(b) Opinion of Counsel for Company..............................................................13
(c) Opinion of General Counsel of Company.......................................................13
(d) Opinion of Counsel for Underwriter..........................................................13
(e) Officers' Certificate.......................................................................14
(f) Accountant's Comfort Letter.................................................................14
(g) Bring-Down Comfort Letter...................................................................14
(h) Approval of Listing.........................................................................14
(i) Lock-up Agreements..........................................................................14
(j) Additional Documents........................................................................14
(k) Termination of Agreement....................................................................15
SECTION 6. Indemnification..........................................................................15
(a) Indemnification of Underwriter..............................................................15
(b) Indemnification of Company, Directors and Officers..........................................16
(c) Actions against Parties; Notification.......................................................16
(d) Settlement without Consent if Failure to Reimburse..........................................17
SECTION 7. Contribution.............................................................................17
SECTION 8. Representations, Warranties and Agreements to Survive Delivery...........................18
SECTION 9. Termination of Agreement.................................................................18
(a) Termination; General........................................................................18
(b) Liabilities.................................................................................19
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SECTION 10. Notices..................................................................................19
SECTION 11. Parties..................................................................................19
SECTION 12. Governing Law and Time...................................................................19
SECTION 13. Effect of Headings.......................................................................19
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SCHEDULES
Schedule A - Pricing Information
Schedule B - List of Persons Subject to Lock-up
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel
Exhibit A - 1 - Foreign Qualifications
Exhibit B - Form of Opinion of General Counsel of the Company
Exhibit C - Form of Lock-up Letter
iv
REMINGTON OIL AND GAS CORPORATION
(a Delaware corporation)
3,000,000 Shares of Common Stock
(Par Value $0.01 Per Share)
UNDERWRITING AGREEMENT
March 22, 2002
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Remington Oil and Gas Corporation, a Delaware corporation (the
"Company"), confirms its agreement with ▇▇▇▇▇▇▇▇▇ & Company, Inc. (the
"Underwriter") with respect to the issue and sale by the Company and the
purchase by the Underwriter, of shares of Common Stock, par value $0.01 per
share, of the Company ("Common Stock"). The 3,000,000 shares of Common Stock to
be purchased by the Underwriter are hereinafter called the "Securities."
The Company understands that the Underwriter proposes to make a public
offering of the Securities as soon as the Underwriter deems advisable after this
Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333-57456)
and pre-effective amendments nos. 1 and 2 thereto covering the registration of
common stock (including the Securities) under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). The registration statement has been
declared effective by the Commission. Such registration statement (as so
amended) is referred to herein collectively as the "Registration Statement," and
the final prospectus and the final prospectus supplement relating to the
offering of the Securities, in the final forms furnished to the Underwriter by
the Company for use in connection with the offering of the Securities, are
collectively referred to herein as the "Prospectus;" provided, however, that all
references to the "Registration Statement" and the "Prospectus" shall also be
deemed to include all documents incorporated therein by reference pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the
execution of this Agreement. For purposes of this Agreement, all references to
the Registration Statement, Prospectus, or to any amendment or supplement to any
of the foregoing shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" (or other
references of like import) in
the Registration Statement or Prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement or Prospectus, as the
case may be, prior to the execution of this Agreement; and all references in
this Agreement to amendments or supplements to the Registration Statement or
Prospectus shall be deemed to include the filing of any document under the 1934
Act which is incorporated by reference in the Registration Statement or
Prospectus, as the case may be, after the execution of this Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(b) hereof, and agrees with the
Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing
Time, the Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. At the date of the
Prospectus, or any amendments or supplements thereto, and at the
Closing Time, neither the Prospectus nor any amendments or supplements
thereto, included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by the Underwriter expressly for use in the
Registration Statement or Prospectus.
Each prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant
to Rule 424 under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and the Prospectus delivered to
the Underwriter for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time
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they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934
Act Regulations"), and, when read together with the other information
in the Prospectus, at the date of the Prospectus, at the Closing Time,
did not and 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.
(iii) Independent Accountants. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
("▇▇▇▇▇▇▇▇"), who certified the financial statements and supporting
schedules included in the Registration Statement and the Prospectus,
are independent public accountants as required by the 1933 Act and the
1933 Act Regulations. The Company has obtained the requisite
representations concerning audit quality controls, including
representations regarding the continuity of ▇▇▇▇▇▇▇▇ personnel working
on the audit and the availability of national office consultation, as
required by the Commission.
(iv) Financial Statements. The financial statements of the
Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included
therein, present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be, at
the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries,
or such other entity, as the case may be, for the periods specified.
Such financial statements have been prepared in conformity with
accounting principles generally accepted in the United States of
America ("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in the
Registration Statement and the Prospectus present fairly in accordance
with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included or
incorporated by reference in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements incorporated by reference
in the Registration Statement and the Prospectus.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of
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Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect.
(vii) Good Standing of the Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) and CKB Petroleum, Inc. (each a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly organized and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a
foreign corporation, to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not result in a Material Adverse Effect. Except as otherwise
stated in the Registration Statement and the Prospectus, all of the
issued and outstanding capital stock of each Subsidiary has been duly
authorized and is validly issued, fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity. None of the outstanding shares of capital stock of any
Subsidiary was issued in violation of preemptive or other similar
rights of any securityholder of such Subsidiary. The only subsidiaries
of the Company are (a) the subsidiaries listed in the Company's Annual
Report on Form 10-K for the year ended December 31, 2001 and (b)
certain other subsidiaries, none of which constitute a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X.
(viii) Capitalization. The authorized, issued and outstanding
shares of capital stock of the Company are as set forth in the
Prospectus in the column entitled "Actual" in the "Capitalization"
section of the Prospectus (except for subsequent issuances, if any,
pursuant to this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the
Prospectus). The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable. None of the outstanding shares of capital stock of
the Company were issued in violation of preemptive or other similar
rights of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization and Description of Securities. The
Securities have been duly authorized for issuance and sale to the
Underwriter pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued, fully paid and
non-assessable;
4
the Common Stock conforms to all statements relating thereto contained
in the Prospectus and such description conforms to the rights set forth
in the instruments defining the same; no holder of the Securities will
be subject to personal liability by reason of being such a holder; and
the issuance of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or bylaws or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments"), except for such defaults
that would not result in a Material Adverse Effect. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement and
the Prospectus (including the issuance and sale of the Securities and
the use of the proceeds from the sale of the Securities as described in
the Prospectus in the "Use of Proceeds" section of the Prospectus) and
compliance by the Company with its obligations hereunder have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of (A) the
provisions of the charter or bylaws of the Company or any of its
subsidiaries or (B) any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any of its subsidiaries or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition that gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its
subsidiaries.
(xii) Absence of Labor Dispute. (a) No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, and (b) the Company is not aware
of any existing or imminent labor disturbance by the employees of any
of its or any of its subsidiaries' principal suppliers, manufacturers,
customers or contractors, that, in case of either (a) or (b), may
reasonably be expected to result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, that is required to be disclosed in
the
5
Registration Statement (other than as disclosed therein), or which
could reasonably be expected to result in a Material Adverse Effect, or
that might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder. The aggregate of all pending
legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their respective properties
or assets is the subject that are not described in the Registration
Statement and the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents that are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto that have not been so
described and filed as required.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act, the 1933 Act
Regulations or state securities laws.
(xvi) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances that could reasonably be expected to render any
Intellectual Property invalid or inadequate to protect the interest of
the Company or any of its subsidiaries therein, and which infringement
or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate, would
result in a Material Adverse Effect.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not result in a Material Adverse
Effect. Neither the Company nor any of its subsidiaries
6
has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses that, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all of their interests in oil and gas
properties and all other real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (A) are described in the Prospectus, (B) liens and encumbrances
under operating agreements, unitization and pooling agreements,
production sales contracts, farm-out agreements and other oil and gas
exploration and production agreements, in each case that secure payment
of amounts not yet due and payable for the performance of other
inchoate obligations and are of a scope and nature customary in
connection with similar drilling and producing operations, or (C) do
not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries. All of the
leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company
or any of its subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
any of its subsidiaries has any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the
Company or any of its subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company
or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xix) Oil and Gas. Except as described in the Prospectus, as
of the date hereof, (i) all royalties, rentals, deposits and other
amounts due on the oil and gas properties of the Company and its
subsidiaries have been properly and timely paid, and no proceeds from
the sale or production attributable to the oil and gas properties of
the Company and its subsidiaries are currently being held in suspense
by any purchaser thereof, except where such amounts due could not,
singly or in the aggregate, have a Material Adverse Effect on the
Company or any of its subsidiaries, and (ii) there are no claims under
take-or-pay contracts pursuant to which natural gas purchasers have any
make-up rights affecting the interests of the Company or its
subsidiaries in their respective oil and gas properties, except where
such claims could not, singly or in the aggregate, have a Material
Adverse Effect on the Company or any of its subsidiaries.
(xx) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xxi) Environmental Laws. Except as described in the
Registration Statement and the Prospectus and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (A)
neither the Company nor any of its subsidiaries is in
7
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating
to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xxii) Registration Rights. No holder of any securities of the
Company has any rights, not effectively satisfied or waived, to require
the Company to register the sale of any securities under the 1933 Act
in connection with the filing of the Registration Statement or the
consummation of the transactions contemplated therein or pursuant to
this Agreement.
(xxiii) Stabilizing Transactions; Distribution of Property.
The Company has not taken and will not take, directly or indirectly,
any action designed to, or that might be reasonably expected to, cause
or result in stabilization or manipulation of the price of the
Securities, and the Company has not distributed and will not distribute
any prospectus or other offering material in connection with the
offering and sale of the Securities other than the Prospectus or other
materials permitted under the 1933 Act.
(xxiv) Statistical and Market Data. The statistical and
market-related data included or incorporated by reference in the
Registration Statement and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate or
represent the Company's good faith estimates that are made on the basis
of data derived from such sources.
(xxv) Finders' Fee. The Company knows of no outstanding claims
for services, in the nature of a finder's fee or origination fee or
other similar claim, with respect to the transactions contemplated
hereby, other than the underwriting fees and compensation to be paid to
the Underwriter in accordance with this Agreement.
(xxvi) Payment of Taxes. All United States federal income tax
returns of the Company and its Subsidiaries required by law to be filed
have been filed. All taxes
8
shown by such filed tax returns or otherwise assessed, that are due and
payable, have been paid, except assessments against which appeals have
been or will be promptly taken and as to which adequate reserves have
been provided. The United States federal income tax returns of the
Company through the fiscal year ended December 31, 2000 have been
settled and no assessment in connection therewith has been made against
the Company. The Company and its subsidiaries have filed all other tax
returns that are required to have been filed by them pursuant to
applicable foreign, state, local or other law except insofar as the
failure to file such returns would not result in a Material Adverse
Effect, and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Company and its
subsidiaries, except for such taxes, if any, as are being contested in
good faith and as to which adequate reserves have been provided. The
charges, accruals and reserves on the books of the Company in respect
of any income and corporation tax liability for any years not finally
determined are adequate to meet any assessments or reassessments for
additional income tax for any years not finally determined, except to
the extent of any inadequacy that would not result in a Material
Adverse Effect.
(xxvii) Internal Controls. The Company and its subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance
with management's general or specific authorization, (B) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with GAAP and to maintain accountability for assets, (C)
access to assets is permitted only in accordance with management's
general or specific authorization and (D) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(xxviii) Insurance. The Company and its Subsidiaries carry or
are entitled to the benefits of insurance, with financially sound and
reputable insurers, in such amounts and covering such risks as is
generally maintained by companies of established repute engaged in the
same or similar business, and all such insurance is in full force and
effect.
(xxix) Related Party Transactions. No relationship, direct or
indirect, exists between or among any of the Company or any affiliate
of the Company, on the one hand, and any director, officer,
stockholder, customer or supplier of any of them, on the other hand,
which is required by the 1933 Act or by the 1933 Act Regulations to be
described in the Registration Statement or the Prospectus which is not
so described or is not described as required.
(xxx) Offering Materials. The Company has not distributed and,
prior to the later to occur of (A) the Closing Time and (B) completion
of the distribution of the Securities, will not distribute any offering
material in connection with the offering and sale of the Securities
other than the Registration Statement, the Prospectus, or other
materials, if any, permitted by the 1933 Act and approved by the
Underwriter.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Underwriter or to
counsel for the Underwriter shall be
9
deemed a representation and warranty by the Company to the Underwriter as to the
matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to the Underwriter and the Underwriter agrees to purchase
from the Company, at the price per share set forth in Schedule A, 3,000,000
shares of the Common Stock.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of ▇▇▇▇▇▇▇ &
▇▇▇▇▇, L.L.P., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Underwriter and the Company, at 9:00
A.M. (Texas time) on the third business day after the date hereof, or such other
time not later than ten business days after such date as shall be agreed upon by
the Underwriter and the Company (such time and date of payment and delivery
being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Underwriter, through the facilities of the Depository Trust Company, for the
account of the Underwriter of the Securities to be purchased by them.
SECTION 3. Covenants of the Company. The Company covenants with the
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b) will notify the Underwriter immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company will give the Underwriter notice
of its intention to file or prepare any amendment to the Registration Statement
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Underwriter with copies of any such documents a reasonable amount
10
of time prior to such proposed filing or use, as the case may be, and will not
file or use any such document to which the Underwriter or counsel for the
Underwriter shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Underwriter and counsel for the Underwriter, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Underwriter, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits). The copies of the Registration Statement and each
amendment thereto furnished to the Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will furnish to the
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as the Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriter or for the
Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to the Underwriter such number of copies of such amendment or supplement
as the Underwriter may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriter, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Underwriter may designate and to maintain such
qualifications in effect for a period of not less than one year from the date of
this Agreement; provided, however, that the Company shall not be obligated to
11
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject. In each jurisdiction
in which the Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less than one year
from the date of this Agreement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the "Use of
Proceeds" section of the Prospectus.
(i) Listing. The Company will use its best efforts to effect the
listing of the Securities on the Nasdaq National Market.
(j) Restriction on Sale of Securities. During a period commencing on
the date of the Prospectus and ending on the 90th day after the date of the
Prospectus (the "Lock-Up Period"), the Company will not, without the prior
written consent of the Underwriter, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Securities to be sold hereunder, (B) any shares of Common Stock
issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the
Prospectus, (C) any shares of Common Stock issued or options to purchase Common
Stock granted pursuant to existing employee benefit plans of the Company
referred to in the Prospectus or (D) any shares of Common Stock issued pursuant
to any non-employee director stock plan or dividend reinvestment plan.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriter, including any stock or other
transfer taxes and
12
any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriter, (iii) the fees and disbursements of the Company's
counsel, accountants and other advisors, (iv) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriter in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (v) the printing
and delivery to the Underwriter of copies of the Prospectus and any amendments
or supplements thereto, (vi) the preparation, printing and delivery to the
Underwriter of copies of the Blue Sky Survey and any supplement thereto, (vii)
the fees and expenses of any transfer agent or registrar for the Securities and
(viii) the fees and expenses incurred in connection with the listing of the
Securities on the Nasdaq National Market. In addition, whether or not the
transactions contemplated under this Agreement are consummated, or this
Agreement expires or is terminated, the Company shall pay to, or on behalf of,
the Underwriter, promptly as billed, all reasonable fees, disbursements and
out-of-pocket expenses incurred by the Underwriter in connection with its
services rendered (including, without limitation, the reasonable fees and
disbursements of counsel for the Underwriter, travel and lodging expenses, word
processing charges, messenger and duplicating services, facsimile expenses and
other customary expenditures).
SECTION 5. Conditions of Underwriter's Obligations. The obligations of
the Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Company contained in Section 1 hereof or in certificates of
any officer of the Company or any subsidiary of the Company delivered pursuant
to the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
has become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the Underwriter.
(b) Opinion of Counsel for Company. At Closing Time, the Underwriter
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇
& ▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to
counsel for the Underwriter to the effect set forth in Exhibit A hereto and to
such further effect as counsel to the Underwriter may reasonably request.
(c) Opinion of General Counsel of Company. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of Closing Time,
of W. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit
B hereto and to such further effect as counsel to the Underwriter may reasonably
request.
(d) Opinion of Counsel for Underwriter. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of Closing Time,
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Underwriter, with respect to the
matters set forth in clauses (i), (ii) (solely as to
13
preemptive or other similar rights arising by operation of law or under the
charter or bylaws of the Company), (iii) through (v), inclusive, (ix) (solely as
to the information in the Prospectus in the "Description of Capital Stock"
section of the Prospectus) and the first and second paragraphs following clause
(xii) of Exhibit A hereto. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the
State of
New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Underwriter. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Underwriter shall have
received a certificate of the Chief Executive Officer and President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or are contemplated by the
Commission.
(f) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Underwriter shall have received from ▇▇▇▇▇▇▇▇ a letter dated such
date, in form and substance satisfactory to the Underwriter, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(g) Bring-Down Comfort Letter. At Closing Time, the Underwriter shall
have received from ▇▇▇▇▇▇▇▇ a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (f) of this Section, except that the specified date referred to shall
be a date not more than three business days prior to Closing Time.
(h) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the Nasdaq National Market, subject only to
official notice of issuance.
(i) Lock-up Agreements. At the date of this Agreement, the Underwriter
shall have received an agreement substantially in the form of Exhibit C hereto
signed by the persons listed on Schedule B hereto.
(j) Additional Documents. At Closing Time, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall
have been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
14
conditions, herein contained. All proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter.
(k) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriter by notice to the Company at any
time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriter. The Company agrees to indemnify and
hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided, that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) from and against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by the
Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information
15
furnished to the Company by the Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. The Underwriter
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) or (b)
above, the indemnifying party shall assume the defense of such action, including
the employment of counsel and payment of reasonable expenses. 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
the indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by the indemnifying party in connection with the
defense of such action, (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to take charge of the
defense of such action within a reasonable time after notice of the institution
of such action, (iii) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them that are different
from or additional to those available to the indemnifying party or (iv) the use
of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest (in which case the
indemnifying party shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties) in any of which events such fees
and expenses shall be borne by the indemnifying party and paid as incurred;
provided that the indemnifying party shall only be responsible for the fees and
expenses of one counsel for the indemnified party or parties hereunder. Anything
in this paragraph to the contrary notwithstanding, the indemnifying party shall
not be liable for any settlement of any such claim or action effected without
its written consent, which consent shall not be unreasonably withheld. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation,
16
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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 Underwriter on the
other hand in connection with the statements or omissions that resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriter, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the underwriting discount received by the Underwriter, in each
case as set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet, bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriter, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in
17
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that the
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriter.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriter may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Underwriter, impracticable to market the Securities or to enforce contracts for
the sale of the Securities, or (iii) if trading in any securities of the Company
has been suspended or materially limited by the Commission or the Nasdaq
National Market, or if trading generally on the American Stock Exchange, the
New
York Stock Exchange or in the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or
18
any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal,
New York or Texas authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to the Underwriter at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; and notices to the Company
shall be directed to it at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: W. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
SECTION 11. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriter and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriter
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriter and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO
NEW YORK CITY TIME.
SECTION 13. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriter and the Company in accordance with its terms.
Very truly yours,
REMINGTON OIL AND GAS CORPORATION
By:
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
President and Chief
Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By:
-----------------------------------
Authorized Signatory
SCHEDULE A
REMINGTON OIL AND GAS CORPORATION
3,000,000 Shares of Common Stock
(Par Value $0.01 Per Share)
1. The public offering price per share for the Securities, determined
as provided in said Section 2, shall be $18.50.
2. The purchase price per share for the Securities to be paid by the
Underwriter shall be $17.668, being an amount equal to the public offering price
set forth above less $0.832 per share.
Schedule A-1
SCHEDULE B
▇▇▇▇▇ ▇. ▇▇▇▇, President, Chief Executive Officer and Director
Don D. Box, Director
▇▇▇▇ ▇. ▇▇▇▇▇, Director
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Director
▇▇▇▇▇ ▇. ▇▇▇▇, Director
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, Director
▇▇▇▇▇ ▇. ▇▇▇▇▇, Director
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director
▇. ▇▇▇▇▇ ▇▇▇▇▇, Vice President/Finance (Principal Financial Officer)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President/Controller (Principal Accounting Officer)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President/Planning & Administration
▇▇▇▇▇▇▇ ▇. ▇▇▇, Vice President Exploration
Schedule B-1
EXHIBIT A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Securities have been duly authorized and, when issued and
delivered in accordance with the terms of the Agreement against payment therefor
as set forth in the Agreement, will be validly issued and fully paid and
non-assessable.
(ii) The issuance of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the Company pursuant to any
statute, the Amended and Restated Certificate of Incorporation, as amended, and
By-Laws of the Company.
(iii) The Agreement has been duly authorized, executed and delivered by
the Company.
(iv) Any required filings of the Prospectus pursuant to Rule 424(b)
have been made in the manner and within the time period required by Rule 424(b).
(v) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than the financial statements and the notes and schedules thereto and financial
data derived therefrom included therein or omitted therefrom, as to which we
express no opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(vi) The Company's Annual Report on Form 10-K for the year ended
December 31, 2001 (other than the financial statements and the notes and
schedules thereto and financial data derived therefrom included therein or
omitted therefrom, as to which we express no opinion), when it was filed with
the Commission, complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
(vii) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the charter and bylaws of the Company and
the requirements of the Nasdaq National Market.
(viii) To our knowledge, there is not pending or threatened any action,
suit or proceeding to which the Company or any subsidiary is a party before or
brought by any court or governmental agency or body, domestic or foreign, which
would result in a Material Adverse Effect, or which might reasonably be expected
to materially and adversely affect the consummation of the transactions
contemplated in the Agreement or the performance by the Company of its
obligations thereunder.
Exhibit A-1
(ix) The statements in the Registration Statement and the Prospectus
under the caption "Description of Capital Stock," and in the Registration
Statement under Item 15, insofar as they are descriptions of contracts,
agreements or other legal documents, or refer to statements of law or legal
conclusions, are accurate in all material respects.
(x) No consent, approval, authorization or waiver of, or notice to or
filing with, or other action by, any governmental authority is required by any
statutory law, regulation or ruling as a condition to the execution and delivery
by the Company of the Agreement, or the performance by the Company of its
obligations under the Agreement, except such as have been obtained under the
1933 Act and the 1934 Act (and except such as may be required under state
securities or blue sky laws governing the purchase and distribution of the
Securities by the Underwriter, as to which we express no opinion).
(xi) Neither the offer, sale or delivery of the Securities by the
Company, the execution, delivery or performance of the Agreement by the Company
(including the use of the proceeds from the sale of the Securities as described
in the Prospectus under the caption "Use of Proceeds") nor compliance by the
Company with its obligations under the Agreement will result in any violation of
(a) the provisions of the charter or bylaws of the Company or any subsidiary or
(b) any applicable law, statute, rule or regulation (assuming compliance with
all applicable state and securities and blue sky laws.
(xii) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
We have participated in conferences with officers and other
representatives of the Company and counsel for and representatives of the
Underwriter at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although we are not passing
upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus on the basis of the foregoing, no facts have come to our attention
that lead us to believe that at its effective date the Registration Statement
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that, as of the date of the Prospectus or as of the date
hereof, the Prospectus 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 (except as to financial statements and the notes and
schedules thereto and financial data derived therefrom included in the
Registration Statement or the Prospectus as to which we do not comment).
The Registration Statement has been declared effective under the 1933
Act and, to our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission.
As used in this letter, the phrase "to our knowledge" or words of
similar import means conscious awareness of facts or other information by the
lawyers in our firm who have devoted substantive attention to legal matters on
behalf of the Company.
Exhibit A-2
The opinions expressed in this letter are limited exclusively to the
laws of the State of Texas, the General Corporation Law of the State of Delaware
and the federal laws of the United States of America.
Exhibit A-3
Exhibit A-1
FOREIGN QUALIFICATIONS
NAME OF COMPANY JURISDICTIONS
--------------- -------------
Remington Oil and Gas Corporation Alabama
Kansas
Louisiana
Mississippi
New Mexico
Oklahoma
Texas
CKB Petroleum, Inc. Louisiana
Exhibit A-1-1
EXHIBIT B
FORM OF OPINION OF GENERAL COUNSEL
OF THE COMPANY TO BE DELIVERED
PURSUANT TO SECTION 5(c)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own or lease its
properties and to conduct its business as described in the Prospectus and to
execute and deliver, and perform its obligations under, the Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each of the jurisdictions listed
next to its name on Exhibit A-1.
(iv) Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation and has corporate power and authority to own or lease its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each of the jurisdictions listed next to its name on Exhibit A-1;
all of the issued and outstanding capital stock of each Subsidiary has been duly
authorized and validly issued, and is owned of record and, to our knowledge,
beneficially by the Company, directly or through subsidiaries, free and clear of
any perfected security interest, lien, encumbrance or adverse claim.
(v) The issuance of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the Company pursuant to any
agreement to which the Company is a party or by which its assets or properties
are bound.
(vi) To my knowledge, there are no statutes or regulations that are
required to be described in the Prospectus that are not described as required.
(vii) To my knowledge, neither the Company nor any subsidiary is in
violation of its charter or bylaws and no default by the Company or any
subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(viii) The documents incorporated by reference in the Prospectus (other
than the financial statements and the notes and schedules thereto and financial
data derived therefrom included therein or omitted therefrom, as to which we
express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material respects
with the requirements of the 1933 Act or the 1934 Act, as applicable, and the
rules and regulations of the Commission thereunder.
Exhibit B-1
(ix) To my knowledge, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be described in
the Registration Statement or the Prospectus (or any amendment or supplement
thereto) or to be filed as an exhibit to the Registration Statement or any
document incorporated by reference therein that are not described or filed as
required, as the case may be.
(x) Neither the offer, sale or delivery of the Securities by the
Company, the execution, delivery or performance of the Agreement by the Company
(including the use of the proceeds from the sale of the Securities as described
in the Prospectus under the caption "Use of Proceeds") nor compliance by the
Company with its obligations under the Agreement constitutes or will constitute,
whether with or without the giving of notice or lapse of time or both, a breach
of, or default or Repayment Event (as defined in Section 1(a)(xi) of the
Agreement) under or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary
pursuant to any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument to which the Company
or any subsidiary is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any subsidiary is subject,
that has been filed as an exhibit to the Registration Statement or to any
document incorporated by reference therein (except for such breaches or defaults
or liens, charges or encumbrances that would not result in a Material Adverse
Effect), nor will any such action result in any violation of (a) the provisions
of the charter or bylaws of the Company or any subsidiary, (b) any applicable
law, statute, rule or regulation (assuming compliance with all applicable state
and securities and blue sky laws) or (c) any judgment, order, writ or decree of
any court, governmental agency or arbitrator that is known to us to be
applicable to the Company or any subsidiary or any of their respective
properties.
I have participated in conferences with officers and other representatives of
the Company and counsel for and representatives of the Underwriter at which the
contents of the Registration Statement and the Prospectus and related matters
were discussed and, although I am not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus on the basis of the
foregoing, no facts have come to my attention that lead me to believe that at
its effective date the Registration Statement contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that, as of the
date of the Prospectus or as of the date hereof, the Prospectus 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 (except as to financial
statements and the notes and schedules thereto and financial data derived
therefrom included in the Registration Statement or the Prospectus as to which I
do not comment).
Exhibit ▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Proposed Public Offering by Remington Oil and Gas Corporation
Dear Sirs:
The undersigned, an officer and/or director of Remington Oil and Gas
Corporation, a Delaware corporation (the "Company"), understands that ▇▇▇▇▇▇▇▇▇
& Company, Inc. ("Jefferies") proposes to enter into an
Underwriting Agreement
(the "
Underwriting Agreement") with the Company providing for the public
offering of shares (the "Securities") of the Company's common stock, par value
$.01 per share (the "Common Stock"). In recognition of the benefit that such an
offering will confer upon the undersigned as an officer and/or director of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with
Jefferies that, during a period commencing on the date of the
Underwriting
Agreement and ending on the 90th day after the date of the
Underwriting
Agreement, the undersigned will not, without the prior written consent of
Jefferies, directly or indirectly, (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant for the sale of, or otherwise dispose
of or transfer any shares of the Company's Common Stock or any securities
convertible into or exchangeable or exercisable for Common Stock, whether now
owned or hereafter acquired by the undersigned or with respect to which the
undersigned has or hereafter acquires the power of disposition, or file any
registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether any such swap or transaction is to be settled by delivery of Common
Stock or other securities, in cash or otherwise; provided, however, that the
restrictions in clauses (i) and (ii) above shall not apply to (A) any bona fide
gift of Common Stock or any securities convertible into or exchangeable or
exercisable for Common Stock to a donee; provided that (a) each donee shall
execute and deliver to Jefferies a duplicate form of this Lock-up Agreement and
(b) no filing by any party (donor or donee) under Section 16(a) of the
Securities Exchange Act of 1934, as amended, shall be required or shall be made
voluntarily in connection with such transfer (other than a filing on Form 5 made
after the expiration of the 90-day period referred to above); (B) any shares of
Common Stock issued or options to purchase Common Stock granted pursuant to
existing employee benefit or stock grant plans of the Company referred to in the
Prospectus; or (C) any shares of Common Stock issued pursuant to any
non-employee director stock plan or dividend reinvestment plan.
Very truly yours,
Signature:
----------------------------
Print Name:
---------------------------
Exhibit C-1