Exhibit 1.1
INTERNATIONAL SHIPHOLDING CORPORATION
800,000 Shares
[ %] Convertible Exchangeable Preferred Stock
($1.00 par value per share)
UNDERWRITING AGREEMENT
December [ ], 2004
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▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
International Shipholding Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell to ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated
("you" or the "Underwriter") an aggregate of 800,000 shares (the "Firm Shares")
of [ ]% Convertible Exchangeable Preferred Stock, $1.00 par value per share (the
"Preferred Stock"), of the Company, which Preferred Stock, at the Company's
option and subject to certain conditions, is exchangeable for the Company's [ %]
Convertible Subordinated Notes due 2014 (the "Notes") issuable pursuant to an
indenture (the "Indenture") between the Company and The Bank of New York, as
trustee (the "Trustee") to be dated as of the time of purchase (as defined
below). The Preferred Stock is, and the Notes, when and if issued, will be,
convertible into shares (the "Conversion Shares") of the Company's Common Stock,
$1.00 par value per share (the "Common Stock"). Solely for the purpose of
covering over-allotments, the Company proposes to grant to the Underwriter the
option to purchase from the Company up to an additional 80,000 shares of the
Preferred Stock (the "Additional Shares"). The Firm Shares and the Additional
Shares are hereinafter collectively sometimes referred to as the "Shares." The
Shares, the Notes and the Conversion Shares (collectively, the "Securities") are
described in the Prospectus referred to below.
The Company has 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-1 (File No. 333-120161),
including a prospectus, relating to the Securities. The Company has furnished to
you, for use by you and by dealers, copies of one or more preliminary
prospectuses (each such preliminary prospectus being herein called a
"Preliminary Prospectus") relating to the Securities. Except where the context
otherwise requires, the registration statement, as amended when it became or
becomes effective, including all documents filed as a part thereof, and
including any information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424(b) under the Act and deemed to be part of the
registration statement at the time of effectiveness
pursuant to Rule 430A under the Act and also including any registration
statement filed pursuant to Rule 462(b) under the Act, is herein called the
"Registration Statement," and the prospectus in the form 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), or, if no such filing is required, the form of final
prospectus included in the Registration Statement at the time it became
effective, is herein called the "Prospectus." As used herein, "business day"
shall mean a day on which the New York Stock Exchange is open for trading.
The Company has filed, in accordance with Section 12 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively, the "Exchange Act"), a registration statement (as may be amended
prior to the time of execution of this Agreement, the "Exchange Act Registration
Statement") on Form 8-A under the Exchange Act to register, under Section 12(b)
of the Exchange Act, the Preferred Stock. As used in this Agreement, the term
"knowledge" with respect to any entity means to the knowledge of any director or
officer of such entity after due inquiry.
The Company and the Underwriter 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 Underwriter and the Underwriter agrees to
purchase from the Company the Firm Shares in each case at a purchase price of $[
] per share. The Company is advised by you that you intend (i) to make a public
offering of the Firm Shares as soon after the effective date of the Registration
Statement as in your reasonable 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 to the
underwriting discount set forth in the Prospectus the Company shall pay to the
Underwriter a financial advisory fee equal to the greater of $[ ] or 1.5% of the
aggregate public offering price of all Firm Shares purchased.
In addition, the Company hereby grants to the Underwriter the
option to purchase, and upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Underwriter shall have
the right to purchase, 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 Underwriter
to the Company for the Firm Shares. In addition, the Company shall pay to the
Underwriter a financial advisory fee equal to the greater of $[ ] or 1.5% of
the aggregate public offering price of all Additional Shares purchased. This
option may be exercised by the Underwriter at any time and from time to time on
or before the thirtieth day following the date of the Prospectus, by written
notice to the Company. Such notice shall set forth the aggregate number of
Additional Shares as to which the option is being exercised and the date and
time when the Additional Shares are to be delivered (such date and time being
herein referred to as the "additional time of purchase"); provided, however,
that the additional time of purchase shall not be earlier than the time of
purchase (as defined below) nor earlier than the second business day after the
date on
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which the option shall have been exercised nor later than the tenth business day
after the date on which the option shall have been exercised.
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company by wire transfer of immediately available
funds to the account(s) specified by the Company against delivery of the Firm
Shares to you through the facilities of The Depository Trust Company ("DTC") for
the account of the Underwriter. Such payment and delivery shall be made at 9:00
A.M., New York City time, on [ ], 2004 (unless another time shall be agreed to
by you and the Company). 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 as the payment for the Firm Shares (unless otherwise agreed to by you and
the Company). 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 ▇▇▇▇▇▇▇
LLP at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 9:00 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, Warranties and Covenants of the Company. The
Company represents and warrants to and agrees with the Underwriter that:
(a) the Registration Statement has been declared effective
under the Act; no stop order of the Commission preventing or suspending
the use of any Preliminary 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 after due
inquiry, are contemplated by the Commission; each Preliminary
Prospectus, at the time of filing thereof, complied in all material
respects with the requirements of the Act, and the last Preliminary
Prospectus distributed in connection with the offering of the Shares
did not, as of its date, and does 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, in light of the
circumstances under which they were made, not misleading; the
Registration Statement complied when it became effective, complies and,
at the time of purchase and any additional time of purchase and any
time at which any sales with respect to which the Prospectus is
delivered, will comply with the requirements of the Act, and the
Prospectus will comply, as of its date and at the time of purchase and
any additional times of purchase and any time at which any sales with
respect to which the Prospectus is delivered, with the requirements of
the Act; any statutes, regulations, contracts or other documents that
are required to
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be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement have been and will be
so described or filed; the conditions to the use of Form S-1 have been
satisfied; the Registration Statement did not when it became effective,
does not and, at the time of purchase and any additional time of
purchase and any time at which any sales with respect to which the
Prospectus is delivered, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
the Prospectus will not, as of its date and at the time of purchase and
any additional time of purchase and any time at which any sales with
respect to which the Prospectus is delivered, 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, in
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no warranty or representation
with respect to any statement contained in the last Preliminary
Prospectus, the Registration Statement or the 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 last Preliminary Prospectus, the
Registration Statement or the Prospectus; the Exchange Act Registration
Statement has become effective as provided in Section 12 of the
Exchange Act; and the Company has not distributed and will not
distribute any "prospectus" (within the meaning of the Act) or offering
material in connection with the offering or sale of the Shares other
than the Registration Statement, the then most recent Preliminary
Prospectus and the Prospectus;
(b) each of the Company and each of the subsidiaries listed on
Exhibit 21.1 to the Registration Statement (the "Subsidiaries") has
been duly organized and is validly existing and in good standing under
the laws of its respective jurisdiction of organization with authority
and power, corporate or otherwise, to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus and, with respect to the Company, to: (i)
execute and deliver this Agreement and to issue, sell and deliver the
Shares as contemplated herein, (ii) execute, issue and deliver the
Indenture and the Notes and perform its obligations thereunder, and
(iii) issue and deliver the Conversion Shares in accordance with the
terms of the Certificate of Designations of the [ %] Convertible
Exchangeable Preferred Stock of the Company in the form filed as an
exhibit to the Registration Statement (the "Certificate of
Designations") or the Indenture, as the case may be; each of the
Company and the Subsidiaries is duly qualified as a foreign entity to
transact business in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property and assets or the conduct of business or otherwise,
except where the failure to so qualify would not have a material
adverse effect on the condition (financial or otherwise), results of
operations, business, properties, assets or business prospects of the
Company and the Subsidiaries taken as a whole (a "Material Adverse
Effect");
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(c) 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 and the Prospectus entitled
"Capitalization" and "Description of Common Stock," and, as of the time
of purchase and the 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 and the
Prospectus entitled "Capitalization," "Description of the Preferred
Stock" and "Description of Common Stock" (subject, in each case, to the
issuance of shares of Common Stock upon exercise of stock options
disclosed as outstanding in the Registration Statement and the
Prospectus and the grant of options under the Company's Stock Incentive
Plan); 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 federal and state securities laws, except
for any failure to comply that could not, individually or in the
aggregate, have a Material Adverse Effect, and were not issued in
violation of any preemptive right, right of first refusal or similar
right; the Certificate of Designations has been duly authorized and
approved in accordance with the Delaware General Corporation Law, will
be filed with the Secretary of State of the State of Delaware on or
before the time of purchase, requires no governmental or third party
consent or approval prior to its becoming effective other than
acceptance for recording by the Secretary of State of the State of
Delaware, shall become effective and in full force and effect on or
before the time of purchase and immediately subsequent to the filing of
the Certificate of Designations, the Company will be duly incorporated
and validly existing as a corporation in good standing under the laws
of the State of Delaware;
(d) all of the issued and outstanding shares of capital stock
of each of the Subsidiaries have been duly authorized and validly
issued and are fully paid and non-assessable, have been issued in
compliance with all federal and state securities laws, except for any
failure to comply that could not, individually or in the aggregate,
have a Material Adverse Effect, and were not issued in violation of any
preemptive right, right of first refusal or similar right; and are
owned by the Company either directly or through wholly-owned
subsidiaries, free and clear of any liens, claims or encumbrances of
any kind; the Company has no direct or indirect subsidiaries (as
defined under the Act) other than the Subsidiaries, the Subsidiaries
include the only significant subsidiaries of the Company as defined by
Rule 1-02 of Regulation S-X and, except as described in the
Registration Statement and the Prospectus, the Company does not own,
directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity
interest in any firm, partnership, joint venture, association or other
entity other than the Subsidiaries;
(e) true, complete and correct copies of the Restated
Certificate of Incorporation (the "Certificate") and the By-laws (the
"Bylaws") of the Company and all amendments (including, without
limitation, any certificates of
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designations) thereto have been delivered to you, and, except for the
filing and effectiveness of the Certificate of Designations, no changes
therein will be made on or after the date hereof or on or before the
time of purchase or, if later, the additional time of purchase;
(f) 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, rights of first refusal
and similar rights;
(g) the Conversion Shares have been duly authorized and
reserved for issuance upon conversion of the Shares or the Notes, as
the case may be, and if and when issued in accordance with the
Certificate of Designations or the Indenture, as the case may be, will
be duly and validly issued, fully paid and nonassessable and free of
statutory and contractual preemptive rights, rights of first refusal
and similar rights;
(h) the Notes are in the form contemplated by the Indenture,
have been duly authorized by the Company for issuance pursuant to the
terms of the Indenture and, when executed by the Company and
authenticated by the Trustee in the manner provided in the Indenture,
will constitute valid and binding obligations of the Company, entitled
to the benefits provided by the Indenture, and enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting enforcement
of the rights and remedies of creditors or by general equitable
principles;
(i) the capital stock of the Company, including the Shares and
the Conversion Shares, conforms in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus, and the certificates for the Shares and the Conversion
Shares are in due and proper form and the holders of the Shares and the
Conversion Shares will not be subject to personal liability by reason
of being such holders;
(j) this Agreement has been duly authorized, executed and
delivered by the Company;
(k) the Indenture and the Notes conform in all material
respects to the descriptions thereof in the Registration Statement and
the Prospectus;
(l) the Indenture has been duly and validly authorized by the
Company, and assuming due authorization, execution and delivery of the
Indenture by the Trustee, will constitute a legally valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency,
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reorganization, moratorium or other similar laws relating to or
affecting enforcement of the rights and remedies of creditors or by
general equitable principles; the Indenture (i) has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and (ii) complies as to form with the requirements of the Trust
Indenture Act; as of each of the time of purchase and any additional
times of purchase, as applicable, no event will have occurred nor will
any circumstance have arisen which, had the Notes been issued on such
date, would constitute an Event of Default (as such term is defined in
the Indenture);
(m) neither the Company nor any of the Subsidiaries is in
breach or violation of or in default under (and no event has 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 articles of incorporation, by-laws or
other charter documents (including, with respect to the Company, the
Certificate and the Bylaws) (collectively, "Organization Documents"),
(B) any indenture, mortgage, deed of trust, bank loan, credit
agreement, other evidence of indebtedness, 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 any decree, judgment
or order applicable to, or of any court or other governmental or
regulatory authority, agency or other body with jurisdiction over, the
Company or any Subsidiary or any of their respective assets or
properties, except, in the case of clauses (B) and (C), for breaches,
violations, defaults and events that would not, individually or in the
aggregate, have a Material Adverse Effect;
(n) the execution, delivery and performance of this Agreement,
the Indenture and the Notes, the consummation of the transactions
contemplated by this Agreement, the Certificate of Designations, the
Indenture and the Notes (collectively, the "Transaction Documents"),
the execution, filing and effectiveness of the Certificate of
Designations, the issuance and sale of the Shares, the issuance of the
Notes in compliance with the Indenture and the issuance of the
Conversion Shares in compliance with the Certificate of Designations or
the Indenture, as the case may be, will not conflict with, result in
any breach or violation of or constitute a default under (nor
constitute an event which with notice, lapse of time or both would
result in any breach or violation of or 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) the
Certificate, Bylaws or any Organizational Documents of the Company or
any Subsidiary, (B) any indenture, mortgage, deed of trust, bank loan,
credit agreement, other evidence of indebtedness, license, lease,
contract or other agreement or instrument to which the Company or any
Subsidiary is a party or by which the Company, any Subsidiary or any of
their respective properties may be bound or affected or (C)
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any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to, or of any court or other
governmental or regulatory authority, agency or other body with
jurisdiction over, the Company or any Subsidiary or any of their
respective assets or properties, except, in the case of clauses (B) and
(C), for breaches, violations, defaults and events that would not,
individually or in the aggregate, have a Material Adverse Effect;
(o) 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 the New
York Stock Exchange, Inc., or approval of the stockholders of the
Company, is required in connection with the execution, delivery and
performance of this Agreement, the Indenture, the issuance and sale of
the Shares, the issuance of the Conversion Shares, the issuance of the
Notes, or the consummation by the Company of the transactions
contemplated by the Transaction Documents other than the registration
of the Securities under the Act, qualification of the Indenture under
the Trust Indenture Act, filing with and acceptance by the Delaware
Secretary of State of the Certificate of Designations, authorization
for quotation of the Preferred Stock on or with the New York Stock
Exchange, each of which has been effected (except for the filing with
and acceptance by the Delaware Secretary of State of the Certificate of
Designations, which shall occur prior to the time of purchase), listing
of the Notes on the New York Stock Exchange, the American Stock
Exchange or another similar securities exchange or securities trading
market and such other conditions to issuance of the Notes as are set
forth in the Indenture, and any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriter or under the rules and
regulations of the NASD;
(p) except as expressly set forth in the Registration
Statement 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,
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, in the case of each of the
foregoing clauses (i), (ii) and (iii), whether as a result of the
filing or effectiveness of the Registration Statement or the sale of
the Shares as contemplated thereby or otherwise; 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, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the Shares
as contemplated thereby or otherwise; and, except as disclosed in the
Registration Statement and Prospectus, no person has the right,
exercisable during the Lock-
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Up Period (as defined below), to cause the Company to purchase any
capital stock or other security of the Company;
(q) each of the Company and the Subsidiaries owns, possesses
or has obtained all permits, licenses, consents, orders, approvals,
franchises and authorizations of governmental or regulatory authorities
and has obtained all necessary licenses, authorizations, consents and
approvals from other persons, ("Permits"), as are necessary to own or
lease its properties and to conduct its businesses in the manner
described or contemplated in the Registration Statement and the
Prospectus, except where the failure to own, possess or obtain such
Permits could not, individually or in the aggregate, have a Material
Adverse Effect; each of the Company and the Subsidiaries has fulfilled
and performed in all material respects all of its obligations with
respect to such Permits and no event has occurred, or as a result of
the consummation of the transactions contemplated hereby or in the
Registration Statement and the Prospectus would occur, which allows, or
after notice or lapse of time or both would allow, revocation or
termination thereof or results or would result in any other material
impairment of the rights of the holder of any such Permit; except as
described in the Registration Statement and the Prospectus, none of
such Permits contains any material limitation on the ability of the
Company or any of the Subsidiaries to own its respective properties or
to conduct its business in the manner described in the Registration
Statement and the Prospectus; none of the Company or any of the
Subsidiaries has any knowledge of a threatened revocation or
modification relating to any such Permit; and none of the Company or
any of the Subsidiaries is in violation of, or in default under, any
federal, state, local or foreign law, treaty, regulation or rule or any
decree, order or judgment applicable to the Company or any Subsidiary,
except where such violation or default would not, individually or in
the aggregate, have a Material Adverse Effect;
(r) all legal or governmental proceedings, affiliate
transactions, off-balance sheet transactions (including, without
limitation, transactions related to, and the existence of, "variable
interest entities" within the meaning of Financial Accounting Series
Interpretation No. 46), contracts, licenses, agreements, leases or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required;
(s) there are no actions, suits, claims, investigations or
proceedings pending or threatened or, to the Company's or any
Subsidiary's knowledge, contemplated to which the Company, any of the
Subsidiaries or any of their respective directors or officers is or
would be a party or of 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, except any such action, suit, claim, investigation
or proceeding which would not result in a judgment, decree or order
having, individually or in the aggregate, a Material Adverse Effect or
preventing
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consummation of the transactions contemplated hereby, except as set
forth in the Registration Statement and the Prospectus;
(t) Ernst & Young LLP, whose report on the financial
statements of the Company is included the Registration Statement and
the Prospectus, are independent public accountants as required by the
Act and by Rule 3600T of the Public Company Accounting Oversight Board
(the "PCAOB");
(u) the financial statements included in the Registration
Statement and the Prospectus, together with the related notes and
schedules, present fairly the financial position of the Company and its
consolidated subsidiaries on a consolidated basis as of the dates
indicated and the respective results of operations and cash flows of
the Company and its consolidated subsidiaries for the periods specified
and have been prepared in compliance with the requirements of the Act
and in conformity with generally accepted accounting principles applied
on a consistent basis during the periods involved; any pro forma
financial statements or data included in the Registration Statement and
the Prospectus comply with the requirements of Regulation S-X of the
Act, including, without limitation, Article 11 thereof, 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 set forth
in the Registration Statement and the Prospectus are accurately
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
in the Registration Statement and the Prospectus (including, without
limitation, as required by Rules 3-12 or 3-05 or Article 11 of
Regulation S-X under the Act) that are not included as required; the
Company and its consolidated subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any
off-balance sheet obligations or any "variable interest entities"
within the meaning of Financial Accounting Series Interpretation No.
46), not disclosed in the Registration Statement and the Prospectus;
and all disclosures contained in the Registration Statement or the
Prospectus 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;
(v) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been (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
or any of the Subsidiaries, (ii) any transaction which is material to
the Company or any of the Subsidiaries, (iii) any obligation, direct or
contingent (including any off-balance sheet obligations),
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incurred by the Company or any of the Subsidiaries, which is material
to the Company, (iv) any change in the capital stock or outstanding
indebtedness of the Company or any of the Subsidiaries, or (v) any
dividend or distribution of any kind declared, paid or made on the
capital stock of the Company;
(w) the Company has obtained for the benefit of the
Underwriter the agreement (a "Lock-Up Agreement"), in the form set
forth as Exhibit A hereto, of each of its directors and executive
officers;
(x) neither the Company nor any of the Subsidiaries is now,
nor will any of them be, after giving effect to the offering and sale
of the Shares and application of the net proceeds from such offering
and sale as described in the Registration Statement and the Prospectus
under the heading "Use of Proceeds" and consummation of each of the
transactions contemplated by the Registration Statement and the
Prospectus, 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");
(y) neither the Company nor any of the Subsidiaries is now,
nor will any of them be, after giving effect to the offering and sale
of the Shares, a "holding company" or a "subsidiary company" of a
"holding company" or an "affiliate" of a "holding company" or of a
"subsidiary company," as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended (the "Public Utility Holding
Company Act");
(z) each of the Company and the Subsidiaries has good and
marketable title in fee simple to all real property and good and
marketable title to all personal property (including each of the
vessels listed in the Prospectus and the Registration Statement)
described the Registration Statement or in the Prospectus as being
owned by it, free and clear of all liens, claims, security interests or
other encumbrances except for such liens, claims, security interests or
other encumbrances as are described in the Registration Statement or
the Prospectus or which, individually or in the aggregate, would not
have or result in a Material Adverse Effect; all the property described
in the Registration Statement and the Prospectus as being held under
lease by the Company or any of the Subsidiaries is held thereby under
valid, subsisting and enforceable leases, except where the failure to
so hold could not, individually or in the aggregate, have a Material
Adverse Effect; all leases, contracts and agreements to which the
Company or any of the Subsidiaries is a party or by which any of them
is bound are valid and enforceable against the Company or such
Subsidiary, and are valid and enforceable against the other party or
parties thereto and are in full force and effect with only such
exceptions as would not, individually or in the aggregate, have a
Material Adverse Effect; the Company and the Subsidiaries own or
possess adequate licenses or other rights to use all patents,
trademarks, service marks, trade names, copyrights and know-how
necessary to conduct the businesses now or proposed to be operated by
them as described in the Registration Statement and
11
the Prospectus, except where the failure to own or possess such
licenses or other rights could not, individually or in the aggregate,
have a Material Adverse Effect, and none of the Company or the
Subsidiaries has received any notice of infringement of or conflict
with (or knows of any such infringement of or conflict with) asserted
rights of others with respect to any patents, trademarks, service
marks, trade names, copyrights or know-how;
(aa) 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 or any
Subsidiary's knowledge after due inquiry, threatened against the
Company or any Subsidiary before the National Labor Relations Board,
and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is pending or threatened, (B) no
strike, labor dispute, slowdown or stoppage pending or, to the
Company's or any Subsidiary's knowledge after due inquiry, threatened
against the Company or any Subsidiary and (C) no union representation
dispute currently existing concerning the employees of the Company or
of any Subsidiary, and (ii) to the Company's or any Subsidiary's
knowledge after due inquiry, (A) no union organizing activities are
currently taking place concerning the employees of the Company or any
Subsidiary and (B) there has been no violation of any federal, state,
local or foreign law or regulation relating to discrimination in the
hiring, promotion or pay of employees, labor practices, immigration,
social security, occupational safety and health, or plant closing, or
of any applicable wage or hour laws, concerning the employees of the
Company or any Subsidiary; the minimum funding standard under Section
302 of the Employee Retirement Income Security Act of 1974, as amended,
and the regulations and published interpretations thereunder ("ERISA"),
has been satisfied by each "pension plan" (as defined in Section 3(2)
of ERISA) which has been established or maintained by the Company
and/or one or more of the Subsidiaries, and the trust forming part of
each such plan which is intended to be qualified under Section 401 of
the Internal Revenue Code of 1986, as amended (the "Code"), is so
qualified; each of the Company and the Subsidiaries has fulfilled its
obligations, if any, under Section 515 of ERISA; neither the Company
nor any of the Subsidiaries maintains or is required to contribute to a
"welfare plan" (as defined in Section 3(1) of ERISA) which provides
retiree or other post-employment welfare benefits or insurance coverage
(other than "continuation coverage" (as defined in Section 602 of
ERISA)); each pension plan and welfare plan established or maintained
by the Company and/or one or more of its Subsidiaries is in compliance
in all material respects with the currently applicable provisions of
ERISA, and neither the Company nor any of the Subsidiaries has incurred
or could reasonably be expected to incur excise tax obligations under
Sections 4971 through 4980G of the Code, any penalties under section
502(c) or (l) of ERISA, any withdrawal liability under Section 4201 of
ERISA, any liability under Section 4062, 4063, or 4064 of ERISA, or any
other liability under Title IV of ERISA;
12
(bb) the Company, each Subsidiary and their respective
properties, assets and operations are in compliance with, and hold all
permits, authorizations and approvals required under, Environmental
Laws (as defined below), except to the extent that failure to so comply
or to hold such permits, authorizations or approvals would not,
individually or in the aggregate, have a Material Adverse Effect; there
has been no storage, generation, transportation, handling, treatment,
disposal, discharge, emission or other release of any Hazardous
Materials (as defined below) due to, caused by or otherwise relating to
the operations of the Company or any Subsidiary (or, to the knowledge
of the Company or any Subsidiary, any other entity (including any
predecessor) for whose acts or omission the Company or any Subsidiary
is or could reasonably be expected to be liable); there are no past,
present or, to the Company's or any Subsidiary's knowledge, reasonably
anticipated future events, conditions, circumstances, activities,
practices, actions, omissions or plans that could reasonably be
expected to give rise to any material costs or liabilities to the
Company or any Subsidiary under, or to interfere with or prevent
compliance by the Company or any Subsidiary with, Environmental Laws,
except as would not, individually or in the aggregate, have a Material
Adverse Effect; to the Company's or any Subsidiaries' knowledge,
neither the Company nor any Subsidiary (i) is the subject of any
investigation, (ii) has received any notice or claim, (iii) is a party
to or affected by any pending or threatened action, suit or proceeding,
(iv) is bound by any judgment, decree or order, or (v) has entered into
any agreement, in each case relating to any alleged violation of any
Environmental Law or any actual or alleged release or threatened
release or cleanup at any location of any Hazardous Materials (as
defined below) (as used herein, "Environmental Law" means any federal,
state, local or foreign law, statute, ordinance, rule, regulation,
order, decree, judgment, injunction, permit, license, authorization or
other binding requirement, or common law, relating to health, safety or
the protection, cleanup or restoration of the environment or natural
resources, including those relating to the distribution, processing,
generation, treatment, storage, disposal, transportation, other
handling or release or threatened release of Hazardous Materials, and
"Hazardous Materials" means any material (including, without
limitation, pollutants, contaminants, hazardous or toxic substances or
wastes including petroleum and any petroleum products or byproducts)
that is regulated by or may give rise to liability under any
Environmental Law);
(cc) from time to time, the Company and each of the
Subsidiaries conducts a review of the effect of the Environmental Laws
on its business, operations and properties, in a manner which is
reasonable in light of the Company's and each respective Subsidiary's
business in order to identify and evaluate associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for cleanup, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties);
13
(dd) all tax returns required to be filed by the Company and
each of the Subsidiaries have been filed except where the failure to
file could not, individually or in the aggregate, have a Material
Adverse Effect, 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 paid, other than those
being contested in good faith and for which adequate reserves have been
provided and other than any failure to pay that could not, individually
or in the aggregate, have a Material Adverse Effect;
(ee) the Company and each of the Subsidiaries maintains
insurance covering its respective properties (including the vessels
described in the Prospectus and the Registration Statement),
operations, personnel and businesses as the Company and each respective
Subsidiary deems adequate; such insurance insures against such losses
and risks (including environmental damage and pollution coverage) to an
extent which is adequate in accordance with customary industry practice
to protect the Company, each of 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 any additional time
of purchase; and none of the Company or the Subsidiaries has received
written notice from any insurer or agent of such insurer that any
material capital improvements or other material expenditures are
required or necessary to be made in order to continue such insurance;
(ff) neither the Company nor any Subsidiary has sustained
since the date of the last audited financial statements included in the
Registration Statement and the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or judicial or
governmental action, order or decree;
(gg) 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,
or filed as an exhibit to, the Registration Statement, and no such
termination or non-renewal has been threatened by the Company or any
Subsidiary or, to the Company's or any Subsidiary's knowledge, any
other party to any such contract or agreement;
(hh) the Company maintains 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;
14
(ii) 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
and its subsidiaries is made known to the Company's chief executive
officer, its principal financial officer and its principal accounting
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 auditors and the Audit Committee of the
Board of Directors of the Company have been advised of: (i) any
significant deficiencies 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) any known
fraud, whether or not material, that involves management or other
employees who have a role in the Company's internal controls; any
material weaknesses in internal controls have been identified for the
Company's auditors; since the date of the most recent evaluation of
such disclosure controls and procedures, there have been no significant
changes in internal controls or in other factors that could
significantly affect the Company's internal controls, including any
corrective actions with regard to significant deficiencies and material
weaknesses; and the Company is, and since July 30, 2002 has been, in
compliance with all applicable effective provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") and the rules and
regulations of the Commission and the New York Stock Exchange, Inc.
promulgated thereunder and is actively taking reasonable steps to
ensure that it will be in compliance with other applicable provisions
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act upon the effectiveness of such provisions;
(jj) the chief executive officer and the chief financial
officer of the Company have made all certifications required by the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and any related rules and regulations promulgated by
the Commission, and the statements contained in each such certification
were true and correct when made;
(kk) there are no business relationships or related party
transactions involving the Company or any of the Subsidiaries or any
other person required to be described in the Prospectus and the
Registration Statement which have not been described as required; the
Company has provided you true, correct and complete copies of all
documentation pertaining to any currently outstanding extension of
credit in the form of a personal loan made, directly or indirectly, by
the Company to any director or executive officer of the Company, or to
any family member or affiliate of any director or executive officer of
the Company; and on or after July 30, 2002, the Company has not,
directly or indirectly, (i) extended credit, arranged to extend credit,
or renewed any extension of credit, in the form of a personal loan, to
or for any director or executive officer of the Company, or to or for
any family member or affiliate of any director or executive officer of
the Company; or (ii) made any material modification, including any
15
renewal thereof, to any term of any personal loan to any director or
executive officer of the Company, or any family member or affiliate of
any director or executive officer, which was outstanding on July 30,
2002;
(ll) all statistical or market-related data included in the
Registration Statement or the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and the
Company has obtained the written consent to the use of such data from
such sources to the extent required;
(mm) neither the Company, nor any Subsidiary, nor, to the
Company's or any Subsidiary'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, which payment, receipt or retention of funds
is of a character required to be disclosed in the Registration
Statement or the Prospectus;
(nn) except pursuant to this Agreement, the Company has not
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 and the Prospectus;
(oo) neither the Company nor any of its 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, under the Exchange Act or otherwise,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(pp) to the Company's knowledge after due inquiry, there are
no affiliations or associations between any member of the NASD and any
of the Company's executive officers, directors or 5% or greater
securityholders, except as described in the NASD Questionnaire for
Directors, Executive Officers and Certain Beneficial Owners completed
by each of the Company's executive officers, directors and 5%
securityholders and provided to the Underwriter;
(qq) the Company is a citizen of the United States within the
meaning of Section 2 of the Shipping Act, 1916, as amended (the
"Shipping Act"), and is qualified to engage in the coastwise trade of
the United States; neither the compliance by the Company with the
provisions of the Transaction Documents nor the consummation of the
transactions set forth therein will cause the Company to cease to be a
citizen of the United States within the meaning of Section 2 of the
Shipping Act or cause the Company to cease to be qualified to engage in
the coastwise trade of the United States;
16
(rr) neither the Company nor any Subsidiary or any of their
respective affiliates does business with the government of Cuba or with
any person or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes;
(ss) neither the Company nor any Subsidiary nor, to the
knowledge of the Company or any Subsidiary, any director, officer,
agent, employee or affiliate of the Company or any of the Subsidiaries,
has made any contribution or other payment to any official of, or
candidate for, any federal, state or foreign office in violation of any
law or of the character required to be disclosed in the Prospectus and
the Registration Statement; neither the Company nor any Subsidiary nor,
to the knowledge of the Company or any Subsidiary, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary
is aware of or has taken any action, directly or indirectly, that would
result in a violation by such persons of the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the
"FCPA"), including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of
the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any "foreign
official" (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, the
Subsidiaries and, to the knowledge of the Company or any Subsidiary,
its affiliates have conducted their businesses in compliance with the
FCPA, and have instituted and maintain policies and procedures designed
to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith;
(tt) except as described in the Prospectus and the
Registration Statement, no Subsidiary is prohibited, directly or
indirectly, from paying any dividends to the Company, from making any
other distribution on such Subsidiary's capital stock or other equity
interests, from repaying to 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 Prospectus and the
Registration Statement, the Company is not prohibited, directly or
indirectly, from paying any dividends to its stockholders; and
(uu) the statements in the Prospectus and the Registration
Statement under the headings "Business -- Regulation," "Business -- New
Tax Legislation," "Business -- Insurance," "Description of the
Preferred Stock," "Description of the Notes," "Description of
Indebtedness," "Description of Common Stock," "Certain Relationships
and Transactions," "Material U.S. Federal Income Tax Considerations,"
and "Underwriting," in each case insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed therein,
are accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
17
In addition, any certificate signed by any officer of the Company
and delivered to the Underwriter or counsel for the Underwriter 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 the 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 Underwriter in Baltimore,
Maryland, as soon as practicable after the Registration Statement
becomes effective, and thereafter from time to time to furnish to the
Underwriter, 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 Underwriter may reasonably request for the purposes
contemplated by the Act; in case the Underwriter is required to deliver
a prospectus after the nine-month period referred to in Section
10(a)(3) of the Act in connection with the sale of the Shares, 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;
(c) if, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or any post-effective
amendment thereto to be declared effective before the Shares may be
sold, the Company will use its best efforts to cause the Registration
Statement or such post-effective amendment to become effective as soon
as practicable, and the Company will advise you promptly and, if
requested by you, will confirm such advice in writing, (i) when the
Registration Statement and any such post-effective amendment thereto
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
under such Rule);
(d) to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement or the Exchange Act Registration Statement or
the Prospectus or for
18
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 practicable; to advise you
promptly of any proposal to amend or supplement the Registration
Statement or the Exchange Act Registration Statement or the Prospectus
and to provide you and your 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;
(e) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Shares; to
provide you 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 for your review and
comment a reasonable amount of time prior to any proposed filing, and
to file no such report, statement or document to which you shall object
in writing; and to promptly notify you of any such filing;
(f) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act and pay the applicable
fees in accordance with the Act;
(g) to advise the Underwriter promptly of the happening of any
event within the time during which a prospectus relating to the Shares
is required to be delivered under the Act which could require the
making of any change in the Prospectus then being used so that the
Prospectus would not include an untrue statement of material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they are made, not
misleading, and, during such time, subject to Section 4(d) hereof, to
prepare and furnish, at the Company's expense, to the Underwriter
promptly such amendments or supplements to such Prospectus as may be
necessary to reflect any such change;
(h) to make generally available to its security holders, and
to deliver to you, an earnings statement of the Company (which will
satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act) as soon as is
reasonably practicable after the termination of such twelve-month
period but in any case not later than, March 1, 2006;
(i) to furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a
consolidated balance sheet and
19
statements of income, stockholders' equity and cash flow of the Company
for such fiscal year, accompanied by a copy of the certificate or
report thereon of nationally recognized independent certified public
accountants duly registered with the PCAOB);
(j) to furnish to you five (5) copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto);
(k) to furnish to you promptly for a period of five years from
the date of this Agreement (i) at the same time as distributed to the
Company's stockholders after the end of each fiscal year, copies of the
annual report of the Company containing the balance sheet of the
Company as of the close of such fiscal year and statements of income,
changes in stockholders' investment and cash flows for the year then
ended and the opinion thereon of the Company's independent public or
certified public accountants; (ii) at the same time as distributed to
the Company's stockholders copies of any reports, proxy statements, or
other communications which the Company shall send to its stockholders
or shall from time to time publish or publicly disseminate, (iii) at
the same time as filed with any national securities exchange, copies of
documents or reports filed with any national securities exchange on
which any class of securities of the Company is listed, and (iv) such
other information as you may reasonably request regarding the Company;
(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 financial statements, if
any, of the Company which have been read by the Company's independent
certified 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;
(n) to pay all costs, expenses, fees and taxes in connection
with (i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus and any amendments or
supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriter 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
Underwriter, (iii) the producing, word processing and/or printing of
this Agreement, 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
Underwriter and (except closing documents) to dealers (including costs
of mailing and shipment), (iv) the qualification of the
20
Shares for offering and sale under state or foreign laws and the
determination of their eligibility for investment under state or
foreign laws as aforesaid (including the reasonable legal fees and
filing fees and other disbursements of counsel for the Underwriter
related to such qualification and determination) and the printing and
furnishing of copies of any blue sky surveys or legal investment
surveys to the Underwriter and to dealers, (v) listing of the Shares on
the New York Stock Exchange, Inc. and any registration thereof under
the Exchange Act, (vi) any filing for review of the public offering of
the Shares by the NASD, including the reasonable legal fees and filing
fees and other disbursements of counsel to the Underwriter related to
such filing, (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 Underwriter's sales forces, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel, lodging and other
expenses incurred by the officers of the Company and any such
consultants in connection with the road show, (ix) the preparation and
filing of the Exchange Act Registration Statement, including any
amendments thereto, and (x) the performance of the Company's other
obligations hereunder;
(o) not to 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, any Common Stock or
securities convertible into or exchangeable or exercisable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common
Stock, or file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of
Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or warrants or other rights to purchase
Common Stock or any other securities of the Company that are
substantially similar to Common Stock for a period of 60 days after the
date hereof (the "Lock-Up Period"), without the prior written consent
of the Underwriter, except for (i) the registration of the Shares and
the sales to the Underwriter pursuant to this Agreement, (ii) issuances
of Common Stock upon the exercise of options or warrants disclosed as
outstanding in the Registration Statement and the Prospectus, (iii) the
issuance of employee stock options not exercisable during the Lock-Up
Period pursuant to stock option plans described in the Registration
Statement and the Prospectus and (iv) the issuance of Common Stock upon
conversion of the Shares in compliance with the Certificate of
Designations;
(p) prior to the time of purchase or the additional time of
purchase, as the case may be, to issue no press release or other
communication directly or indirectly and hold no press conferences with
respect to the Company, the financial condition, results of operations,
business, properties, assets, or liabilities of the Company, or the
offering of the Shares, without your prior consent;
21
(q) to use its best efforts to cause the Shares and the
Conversion Shares, if any, to be listed for quotation on the New York
Stock Exchange, Inc. and to maintain the listing of the Shares and the
Common Stock (including the Conversion Shares) on the New York Stock
Exchange, Inc.;
(r) to maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the
Shares; and
(s) to cause the Notes, if issued, to be listed for quotation
on one of the following markets: New York Stock Exchange, Inc.,
National Association of Securities Dealers Automated Quotation National
Market System ("NASDAQ"), American Stock Exchange or another similar
securities exchange or securities trading market and to use its best
efforts to maintain such listing.
5. Reimbursement of Underwriter's Expenses. If the Shares are not
delivered for any reason other than the default by the Underwriter in its
obligations hereunder, the Company shall, in addition to paying the amounts
described in Section 4(n) hereof, reimburse the Underwriter for its
out-of-pocket expenses reasonably incurred in connection with this Agreement and
the offering contemplated hereby, including the fees and disbursements of its
counsel.
6. Conditions of Underwriter's Obligations. The obligations of the
Underwriter 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 obligations 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
Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P., counsel
for the Company, addressed to the Underwriter, and dated the time of
purchase or the additional time of purchase, as the case may be, in
form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ LLP, counsel for
the Underwriter, in the form set forth in Exhibit B hereto.
(b) You shall have received from Ernst & Young LLP letters
dated, respectively, the date of this Agreement, the time of purchase
and, if applicable, the additional time of purchase, and addressed to
the Underwriter in the forms heretofore approved by the Underwriter.
(c) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the favorable opinion
of ▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, dated the time of purchase
or the additional time of purchase, as the case may be, in form and
substance reasonably satisfactory to the Underwriter.
22
(d) No Prospectus or amendment or supplement to the
Registration Statement or the Prospectus shall have been filed to which
you object in writing.
(e) The Registration Statement and the Exchange Act
Registration Statement shall become effective not later than 5:30 P.M.,
New York City time, on the date of this Agreement and, if Rule 430A
under the Act is used, the Prospectus 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, and any registration statement pursuant to Rule
462(b) under the Act required in connection with the offering and sale
of the Shares shall have been filed and become effective no later than
10:00 P.M., New York City time, on the date of this Agreement.
(f) Prior to 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, in the light of the circumstances under
which they are made, not misleading; and (iii) the Prospectus and all
amendments or supplements 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, in the
light of the circumstances under which they are made, not misleading.
(g) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, (A) no Material Adverse Effect or any development involving a
prospective Material Adverse Effect shall occur or become known, (B) no
change in the capital stock or long-term debt of the Company or any
Subsidiary (other than as contemplated by this Agreement) shall occur
or become known and (C) no transaction which is material to the Company
and the Subsidiaries, taken as a whole, shall have been entered into by
the Company or any Subsidiary.
(h) 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 additional time of purchase, as
the case may be, in the form attached as Exhibit C hereto.
(i) You shall have received signed Lock-up Agreements referred
to in Section 3(w) hereof.
(j) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the
23
Registration Statement and the Prospectus as of the time of purchase
and, if applicable, the additional time of purchase, as you may
reasonably request.
(k) The Shares shall have been approved for listing on the New
York Stock Exchange, Inc., 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.
(l) The Company and the Trustee shall have executed and
delivered the Indenture.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the Underwriter hereunder shall be subject
to termination in the absolute discretion of the Underwriter if (x) since the
time of execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
been any material adverse change or any development involving a prospective
material adverse change in the business, properties, management, condition
(financial or otherwise), results of operations or prospects of the Company and
the Subsidiaries, taken as a whole, which would, in the Underwriter's judgment
make it impracticable 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 and the Prospectus, or (y) since the time of execution of
this Agreement, there shall have occurred: (i) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the NASDAQ; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange, Inc.; (iii) a general moratorium on commercial banking activities
declared by either federal, New York State or Louisiana State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) 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 (v) 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 (iv) or (v) in
the Underwriter's judgment makes it impracticable 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 and the Prospectus, or (z) 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 (i) any intended
or potential downgrading, or (ii) 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 by any "nationally recognized statistical rating
organization," as that term is defined in Rule 436(g)(2) under the Act.
24
If the Underwriter elects to terminate this Agreement as
provided in this Section 7, the Company shall be notified promptly in writing.
If the sale to the Underwriter of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriter 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
Underwriter shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) hereunder).
8. Reserved.
9. Indemnity and Contribution.
(a) Subject to the provisions of subsection (c) below, the
Company agrees to indemnify, defend and hold harmless the Underwriter,
its partners, directors and officers, and any person who controls the
Underwriter 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 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 in
such Registration Statement or necessary to make the statements made
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 the Underwriter furnished
in writing by or on behalf of the Underwriter through you to the
Company expressly for use in, such Registration Statement or arises out
of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated
in such Registration Statement or necessary to make such information
not misleading, (ii) any untrue statement or alleged untrue statement
of a material fact contained in a Prospectus (the term Prospectus for
the purpose of this Section 9 being deemed to include any Preliminary
Prospectus, the Prospectus and the Prospectus as amended or
supplemented 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 in such Prospectus or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading, except insofar as any such loss, damage, expense, liability
or claim arises out of or is based upon any untrue
25
statement or alleged untrue statement of a material fact contained in,
and in conformity with information concerning the Underwriter furnished
in writing by or on behalf of the Underwriter to the Company expressly
for use in, such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in connection
with such information required to be stated in such Prospectus or
necessary to make such information, in light of the circumstances under
which it was presented, not misleading, (iii) any untrue statement or
alleged untrue statement made by the Company in Section 3 hereof or the
failure by the Company to perform when and as required any agreement or
covenant contained herein, or (iv) any untrue statement or alleged
untrue statement of any material fact contained in any audio or visual
materials provided by the Company or based upon written information
furnished by or on behalf of the Company including, without limitation,
slides, videos, films or tape recordings used in connection with the
marketing of the Shares.
If any action, suit or proceeding (each, a "Proceeding") is
brought against the Underwriter or any such person in respect of which
indemnity may be sought against the Company pursuant to the foregoing
paragraph, the Underwriter or such person shall promptly notify the
Company in writing of the institution of such Proceeding and the
Company 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 the Company shall not relieve the Company from
any liability which the Company may have to the Underwriter or any such
person or otherwise, except to the extent that the Company has been
materially prejudiced (through the forfeiture of substantive rights or
defenses or otherwise) by such omission. The Underwriter or such person
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 Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Company in
connection with the defense of such Proceeding or the Company shall not
have, within a reasonable period of time in light of the circumstances,
employed counsel reasonably satisfactory to such indemnified party 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 the Company (in which case the Company shall not have the
right to direct the defense of such Proceeding on behalf of the
indemnified party or parties, but the Company may, without limiting the
generality of the foregoing, employ counsel and participate in the
defense thereof, provided the fees and expenses of such counsel shall
be at the expense of the Company), in any of which events such fees and
expenses shall be borne by the Company and paid as incurred (it being
understood, however, that the Company 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 Company shall not be liable for any settlement
of any Proceeding effected without its written
26
consent but, if settled with the written consent of the Company, the
Company agrees to indemnify and hold harmless the Underwriter and any
such person 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 this subsection, 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 60 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, culpability or a failure to
act, by or on behalf of such indemnified party.
(b) The Underwriter 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 any untrue statement or alleged untrue statement of a
material fact contained in, and in conformity with information
concerning the Underwriter furnished in writing by or on behalf of the
Underwriter 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 in a Prospectus, or
arises out of or is based upon any omission or alleged omission to
state a material fact in connection with such information required to
be stated in such Registration Statement or such Prospectus or
necessary to make such information, in light of the circumstances under
which it was presented, not misleading.
If any Proceeding is brought against the Company or any such
person in respect of which indemnity may be sought against the
Underwriter pursuant to the foregoing paragraph, the Company or such
person shall promptly notify the Underwriter in writing of the
institution of such Proceeding and the Underwriter shall assume the
defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all
fees
27
and expenses; provided, however, that the omission to so notify the
Underwriter shall not relieve the Underwriter from any liability which
the Underwriter may have to the Company or any such person or
otherwise, except to the extent that the Underwriter has been
materially prejudiced (through the forfeiture of substantive rights or
defenses or otherwise) by such omission. The Company or such person
shall have the right to employ its own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of the
Company or such person unless the employment of such counsel shall have
been authorized in writing by the Underwriter in connection with the
defense of such Proceeding or the Underwriter shall not have, within a
reasonable period of time in light of the circumstances, employed
counsel reasonably satisfactory to such indemnified party 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 or additional to or in conflict with those
available to the Underwriter (in which case the Underwriter shall not
have the right to direct the defense of such Proceeding on behalf of
the indemnified party or parties, but the Underwriter may employ
counsel and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of the Underwriter),
in any of which events such fees and expenses shall be borne by the
Underwriter and paid as incurred (it being understood, however, that
the Underwriter 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 Underwriter shall not be liable for any settlement of
any such Proceeding effected without the written consent of the
Underwriter but, if settled with the written consent of the
Underwriter, the Underwriter agrees to indemnify and hold harmless the
Company and any such person 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 this subsection, 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 60 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 such settlement does not include an
admission of fault or culpability, or a failure to act, by or on behalf
of such indemnified party.
28
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsection (a) or (b), as the
case may be, 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 Underwriter 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 Underwriter 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 Underwriter on the other shall
be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts but before
deducting expenses) received by the Company, and the total underwriting
discounts received by the Underwriter, bear to the aggregate public
offering price of the Shares. The relative fault of the Company on the
one hand and of the Underwriter 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
Underwriter 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.
(d) The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in subsection (c) above. Notwithstanding the provisions of this Section
9, the Underwriter shall not be required to contribute any amount in
excess of the amount by which the total underwriting discounts received
by the Underwriter with respect to the offering of the Shares exceeds
the amount of any damage which the 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.
(e) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the
Company
29
contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of the
Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who
controls the 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, its
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 the 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 or the Prospectus.
(f) The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies that may otherwise
be available to any indemnified person hereunder at law or in equity.
10. Information Furnished by the Underwriter. The statements set forth
in "Underwriting Discount and Financial Advisory Fee" under the caption
"Underwriting" in the Prospectus, only insofar as such statements relate to the
amount of selling concession and reallowance that may be undertaken by the
Underwriter, constitute the only information furnished by or on behalf of the
Underwriter 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 facsimile and, if to
the Underwriter, shall be sufficient in all respects if delivered or sent to
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President (facsimile number: (410)
659-4632,with a copy (which shall not constitute notice) to ▇▇▇▇▇▇▇ LLP, ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇. (facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇), and, if to the Company, shall
be sufficient in all respects if delivered or sent to the Company at the offices
of the Company at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President and Chief Financial Officer (facsimile number:
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy (which shall not constitute notice) to Jones,
Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
II (facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇.
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 Maryland
without regard to the conflict of law principles thereof. The section headings
in this Agreement have been inserted as a matter of convenience of reference and
are not a part of this Agreement.
30
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 Maryland located in the City of Baltimore or in the United States
District Court for the District of Maryland, which courts shall have
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 the Underwriter or any indemnified party.
Each of the Underwriter and the Company (on its behalf and, to the extent
permitted by applicable law, on behalf of its stockholders and affiliates)
waives 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 Underwriter and the Company and to the extent
provided in Section 9 hereof the controlling persons, partners, directors and
officers 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 the Underwriter) shall acquire or have any right under or by
virtue of this Agreement.
15. 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.
16. Successors and Assigns. This Agreement shall be binding upon the
Underwriter and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's and the Underwriter's
respective businesses and/or assets.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
31
If the foregoing correctly sets forth the understanding between the
Company and the Underwriter, 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 Underwriter.
Very truly yours,
INTERNATIONAL SHIPHOLDING CORPORATION
By:
---------------------------------------
Name:
Title:
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, INCORPORATED
By:
------------------------------------
Name:
Title:
32
EXHIBIT A
Lock-Up Agreement
December , 2004
----
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Proposed Public Offering of International Shipholding Corporation
-----------------------------------------------------------------
Ladies and Gentlemen:
The undersigned understands that ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated (the
"Underwriter") proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement") with International Shipholding Corporation (the
"Company") providing for a public offering (the "Offering") by the Underwriter
of securities of the Company, which may consist of common stock, convertible
preferred stock, convertible debt securities or other securities of the Company
(the "Securities"), pursuant to the Company's registration statement on Form S-1
(File No. 333-120161) as filed with the U.S. Securities and Exchange Commission
(the "Registration Statement").
In consideration of the Underwriter's agreement to purchase and make
the Offering of the Securities, and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the undersigned hereby agrees that
without the prior written consent of the Underwriter (which consent may be
withheld in the Underwriter's sole discretion), the undersigned will not, during
the period commencing on the date of this letter and ending 60 days after the
date of the final prospectus relating to the Offering, directly or indirectly:
(1) offer, sell, contract to sell, pledge, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of any shares of the
Company's common stock (the "Common Stock"), or any securities convertible into
or exercisable or exchangeable for the Common Stock; (2) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, or any securities
convertible into or exchangeable for the Common Stock, regardless of whether any
such transaction described herein is to be settled by delivery of the Common
Stock or such other securities, or by delivery of cash or otherwise; (3) make
any demand for, or exercise any right with respect to, the registration of any
shares of the Common Stock or any security convertible into or exercisable or
exchangeable for the Common Stock; or (4) publicly announce any intention to do
any of the foregoing. The foregoing sentence shall not apply to (a) the sale of
any Common Stock to the Underwriter pursuant to the
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Underwriting Agreement, (b) bona fide gifts, provided the recipient or
recipients thereof agree in writing to be bound by the terms of this Lock-Up
Agreement, or (c) 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 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 descendant, father, mother, brother or sister of the
undersigned and father, mother, brother or sister of the undersigned's spouse.
The undersigned hereby agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent against the transfer of
securities of the Company held by the undersigned except in compliance with this
Lock-Up Agreement.
The undersigned recognizes that the Offering will benefit the undersigned
and the Company. The undersigned acknowledges that the Underwriter is relying on
the representations and agreements of the undersigned contained in this Lock-Up
Agreement in carrying out the Offering and in entering into the Underwriting
Agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Agreement. This Lock-Up
Agreement is irrevocable and all authority herein conferred or agreed to be
conferred shall survive the death or incapacity of the undersigned and any
obligations of the undersigned shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned.
This Lock-Up Agreement shall be terminated and the undersigned shall be
released from the undersigned's obligations hereunder (i) upon the date the
Company notifies you in writing that it does not intend to proceed with the
Offering, (ii) upon the date the registration statement filed with the
Securities and Exchange Commission with respect to the Offering is withdrawn,
(iii) upon the date the Underwriting Agreement is terminated, for any reason,
prior to the time of purchase (as defined in the Underwriting Agreement), or
(iv) if the Underwriting Agreement does not become effective by [ ], 2005.
Very truly yours,
---------------------------------------
---------------------------------------
Printed Name of Securityholder:
---------------------------------------
Capacity
(Indicate capacity of person signing if
signing as custodian or trustee or on
behalf of an entity)
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Address: ----------------------------------
----------------------------------
----------------------------------
Accepted as of the date first set forth above:
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, INCORPORATED
By:
---------------------------------------
Name:
Title:
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EXHIBIT B
OPINION OF JONES, WALKER, WAECHTER, POITEVENT, CARRERE & ▇▇▇▇▇▇▇, L.L.P.
1. Each of the Company and the significant subsidiaries of the Company, as
defined by Rule 1-02 of Regulation S-X (each a "Subsidiary" and collectively,
the "Subsidiaries") is validly existing and in good standing under the laws of
its respective jurisdiction of organization with full power and authority to
own, lease and operate its properties and conduct its business as described in
the Registration Statement and the Prospectus. The Company has full corporate
power and authority to execute and deliver the Agreement and to issue, sell and
deliver the Shares as contemplated therein, to execute, issue and deliver the
Indenture and the Notes and perform its obligations thereunder, and to issue and
deliver the Conversion Shares in accordance with the terms of the Certificate of
Designations or the Indenture, as the case may be.
2. Each of the Company and the Subsidiaries is duly qualified to do
business as a foreign entity 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, have a Material
Adverse Effect.
3. The Agreement has been duly authorized by all necessary corporate action
on the part of the Company and has been duly executed and delivered by the
Company and is a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as rights to
indemnification and contribution may be limited by applicable law and except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
enforcement of the rights and remedies of creditors or by general equitable
principles.
4. The Shares have been duly authorized and, upon their issuance, will be
validly issued, fully paid and non-assessable, and will not have been issued in
violation of or subject to any statutory preemptive rights or any preemptive
rights, rights of first refusal or similar rights created by any contracts to
which the Company is a party and of which such counsel is aware.
5. The Conversion Shares have been duly authorized and reserved for
issuance upon conversion of the Shares or the Notes, as the case may be, and if
and when issued in accordance with the Certificate of Designations or the
Indenture, as the case may be, will be duly and validly issued, fully paid and
nonassessable and will not have been issued in violation of or subject to any
statutory preemptive rights or any preemptive rights, rights of first refusal or
similar rights created by any contracts to which the Company is a party and of
which such counsel is aware.
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6. The Notes are in the form contemplated by the Indenture, have been duly
authorized by the Company for issuance pursuant to the terms of the Indenture
and, when executed by the Company and authenticated by the Trustee in the manner
provided in the Indenture, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
enforcement of the rights and remedies of creditors or by general equitable
principles.
7. The Indenture has been duly and validly authorized by all necessary
corporate action on the part of the Company and the Trustee, and has been duly
executed and delivered by the Company and the Trustee, and is a legally valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting enforcement of the rights and remedies of creditors or
by general equitable principles. The Indenture (i) has been duly qualified under
the Trust Indenture Act and (ii) complies as to form with the requirements of
the Trust Indenture Act. As of each of the time of purchase and the additional
time of purchase, as applicable, no event has occurred nor has any circumstance
arisen which, had the Notes been issued on such date, would constitute an Event
of Default (as each such term is defined in the Indenture);
8. The Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus. All of the issued and outstanding
shares of capital stock of the Company and each Subsidiary (a) have been duly
authorized and validly issued, (b) are fully paid and non-assessable, (c) have
been issued in compliance with all federal and state securities laws, (d) have
not been issued in violation of or subject to any statutory preemptive rights,
and (e) have not been issued in violation of or subject to any preemptive
rights, rights of first refusal or similar rights created by any contracts to
which the Company or any Subsidiary is a party and of which such counsel is
aware. All of the issued and outstanding shares of capital stock of each
Subsidiary are owned, directly or indirectly, by the Company free and clear of
any liens, claims or encumbrances of any kind. The Certificate and the Bylaws,
each in the form filed (or incorporated by reference) as an exhibit to the
Registration Statement, have been heretofore duly authorized and adopted, and
are in full force and effect as of the date hereof, in each case in accordance
with the Delaware General Corporation Law.
9. The Certificate of Designations has been duly authorized and adopted by
the Company, has been filed with and accepted by the office of the Secretary of
State of the State of Delaware and is in full force and effect.
10 The capital stock of the Company, including the Shares, conforms to the
descriptions thereof contained in the Registration Statement and the Prospectus.
11. The form of specimen stock certificate relating to the Shares filed as
an exhibit to the Registration Statement complies with the applicable provisions
of the
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Delaware General Corporation Law and the rules and regulations of the New York
Stock Exchange, Inc.
12. The Indenture and the Notes conform in all material respects to the
descriptions thereof in the Registration Statement and the Prospectus.
13. The Registration Statement and the Prospectus and each amendment or
supplement thereto (except as to the financial statements and schedules and
other financial data contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements of the
Act, and the conditions to the use of Form S-1 have been satisfied.
14. The Registration Statement has become effective under the Act and, to
such counsel's 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 under the Act has been made in
the manner and within the time period required by such Rule 424; and the class
of securities consisting of the Preferred Stock has become registered under
Section 12(b) of the Exchange Act.
15. No approval, authorization, consent or order of or filing with any
United States federal, state or local governmental or regulatory commission,
board, body, authority or agency, or of or with the New York Stock Exchange,
Inc., or approval of the stockholders of the Company, is required in connection
with the execution, delivery and performance of this Agreement, the Indenture,
the issuance and sale of the Shares, the issuance of the Conversion Shares, or
the consummation by the Company of the transactions contemplated by the
Transaction Documents other than such as have been filed or obtained under the
Act and the Trust Indenture Act, filed under the Exchange Act, filed with and
accepted by the Delaware Secretary of State, obtained from the New York Stock
Exchange, Inc., each of which has been effected.
16. The Preferred Stock is authorized for listing on the New York Stock
Exchange, Inc.
17. The execution, delivery and performance of this Agreement, the
Indenture and the Notes by the Company, the issuance and sale of the Shares, the
issuance of the Notes in compliance with the Indenture, the issuance of the
Conversion Shares in compliance with the Certificate of Designations or the
Indenture, as the case may be, and the consummation of the transactions
contemplated by the Transaction Documents do not and 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 or constitute a default under) (a) the Certificate
(including the Certificate of Designations and any other certificate of
designations) or Bylaws, (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 known to us to which the Company or
any Subsidiary is a party or by which any of their respective properties are
bound (the foregoing, a "Material Document"), or (c) any United States
B-3
federal or state regulation or rule, or any decree, judgment or order applicable
to the Company, any Subsidiary or any of respective properties, except in the
case of clauses (b) and (c) above, for such breaches, violations or defaults as
could not, individually or in the aggregate, have a Material Adverse Effect.
18. To such counsel's knowledge, the Company is not 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, or 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) the Certificate or Bylaws, (b) any
Material Document, or (c) any United States federal or state regulation or rule,
or any decree, judgment or order applicable to the Company, any Subsidiary or
any of their respective properties and known to such counsel.
19. To such counsel's knowledge, there are no actions, suits, claims,
investigations or proceedings pending, threatened or contemplated to which the
Company or any Subsidiary 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 United States federal, state or local governmental or regulatory commission,
board, body, authority or agency which are required to be described in the
Registration Statement or the Prospectus but are not so described.
20. The Company is not and, after giving effect to the offering and sale of
the Shares, 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.
21. The information in the Registration Statement and the Prospectus under
the headings "Risk Factors--If sufficient appropriations under the Maritime
Security Act of 1996 are not made in any fiscal year, we may not continue to
receive annual subsidy payments with respect to certain of our vessels," "Risk
Factors--Our business and operations are highly-regulated," "Risk Factors--We
are dependent on government charters and contracts," "Risk Factors--Operating
hazards may increase our operating costs; our insurance coverage is limited,"
"Risk Factors--Our vessels could be seized by maritime claimants, which could
result in a significant loss of earnings and cash flow for the related off-hire
period," "Risk Factors--One of our time charter customers has filed for
bankruptcy, the outcome of which could adversely affect our results of
operations," "Business--Regulation," "Business--New Tax Legislation,"
"Business--Insurance," "Dividend Policy," "Management--Directors and Executive
Officers--NYSE Director Independence Rules," "Management--Executive
Compensation," "Certain Relationships and Transactions," "Description of the
Preferred Stock," "Description of the Notes," "Description of Indebtedness,"
"Description of Common Stock," "Underwriting," and "Part II - Item 14 -
Indemnification of Directors and Officers," insofar as such statements
constitute a summary of documents or matters of law, as of the date hereof, are
accurate
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and complete in all material respects and present fairly the information
required to be shown.
22. To such counsel's knowledge, no holders of securities of the Company
have rights to the registration of such securities under the Registration
Statement, other than rights that have been waived or not exercised in
connection with the transactions contemplated by the Registration Statement.
23. To such counsel's knowledge, there are no agreements to which the
Company is a party that are required to be filed as exhibits to the Registration
Statement which have not been filed as so required.
24. The statements set forth in the Registration Statement and the
Prospectus under the heading "Material U.S. Federal Income Tax Considerations,"
while not purporting to address all possible United States federal income tax
consequences of acquiring, owning or disposing of the Shares, the Notes and the
Common Stock, insofar as they purport to constitute summaries of matters of
United States federal income tax law or legal conclusions with respect thereto,
constitute accurate summaries of the matters described therein in all material
respects.
25. To such counsel's knowledge, with respect to trademarks, trade names,
patent rights, copyrights, licenses, approvals, trade secrets and other similar
rights (collectively, "Intellectual Property Rights"), the Company and the
Subsidiaries own or possess such Intellectual Property Rights as are reasonably
necessary to conduct their business as now conducted, and the expected
expiration of any such Intellectual Property Rights would not result in a
Material Adverse Effect. To such counsel's knowledge, the Company has not
received any notice of infringement or conflict with asserted Intellectual
Property Rights of others, which infringement or conflict, if the subject of an
unfavorable decision, would result in a Material Adverse Effect. To such
counsel's knowledge, any of the Company's discoveries, inventions, products, or
processes referred to in the Registration Statement or Prospectus do not
infringe or conflict with any right or patent which is the subject of a patent
application known to the Company.
26. Immediately prior to the sale of the Shares by the Company pursuant to
the terms of the Agreement, the Company was a citizen of the United States
within the meaning of Section 2 of the Shipping Act and was qualified to engage
in the coastwise trade of the United States.
27. Immediately following the sale of the Shares by the Company and the
compliance by the Company and the Underwriter with all of the provisions of the
Agreement (and the consummation of the transactions herein contemplated), the
Company will remain a citizen of the United States within the meaning of Section
2 of the Shipping Act and will continue to be qualified to engage in the
coastwise trade of the United States.
B-5
28. Nothing has come to our attention which leads us to believe that, at
the date of the Prospectus, at the time of purchase and at the time of
additional purchase, as the case may be, the Registration Statement and the
Prospectus (other than the financial statements including supporting schedules
and other financial and statistical information derived therefrom, as to which
such counsel need express no opinion) contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
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EXHIBIT C
OFFICERS' CERTIFICATE
Each of the undersigned, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the Board and Chief
Executive Officer, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President and Chief Financial
Officer of International Shipholding Corporation, a Delaware corporation (the
"COMPANY"), on behalf of the Company, does hereby certify pursuant to Section
6(h) of that certain Underwriting Agreement dated [ ], 2004 (the "UNDERWRITING
AGREEMENT") between the Company and ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated (terms
used in this Certificate but not defined herein are as defined in the
Underwriting Agreement) do hereby certify, in their respective capacities as
officers of the Company, as follows:
1. The representations, warranties and agreements of the Company contained
in the Underwriting Agreement were true and correct when made and are true and
correct as of the date hereof;
2. The Company has performed all covenants and agreements and satisfied all
conditions contained in the Underwriting Agreement;
3. (i) No stop order with respect to the effectiveness of the Registration
Statement has been issued under the Securities Act of 1933, as amended, and the
rules and regulations thereunder (collectively, the "Act") and no proceedings
have been initiated under Section 8(d) or 8(e) of the Act; (ii) the undersigned
has carefully examined the Registration Statement and the Prospectus; (iii) the
Registration Statement and all amendments thereto do 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, in light of the
circumstances under which they were made, not misleading; and (iv) the
Prospectus and all amendments or supplements thereto do 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, in the light of the
circumstances under which they were made, not misleading;
4. Between the time of execution of the Underwriting Agreement and the time
of purchase or the additional time of purchase, as the case may be, (i) no
Material Adverse Effect and no development involving a prospective Material
Adverse Effect has occurred or become known to the undersigned, (ii) no change
in the capital stock or long-term debt of the Company or any Subsidiary (other
than as contemplated by the Underwriting Agreement) has occurred or become known
to the undersigned and (iii) no transaction which is material to the Company and
the Subsidiaries, taken as a whole, has been entered into by the Company or any
Subsidiary.
5. Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P. and
▇▇▇▇▇▇▇ LLP are entitled to rely on this certificate in connection with the
opinions such firms are rendering pursuant to the Underwriting Agreement.
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[SIGNATURES NEXT PAGE]
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IN WITNESS WHEREOF, I have signed my name to this Officers' Certificate
this [ ] day of [ ], 2004.
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman of the Board and Chief
Executive Officer
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer
[SIGNATURE PAGE TO OFFICERS' CERTIFICATE]
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