Exhibit 1.1
8,000,000 Shares
DENBURY RESOURCES INC.
Common Stock
UNDERWRITING AGREEMENT
December 18, 2003
CIBC WORLD MARKETS CORP.
417 5TH AVENUE, 2ND FLOOR
New York, New York 10016
Dear Sirs:
Certain stockholders of Denbury Resources Inc., a Delaware corporation (the
"Company"), named in Schedule 2 hereto (the "Selling Stockholders"), propose to
sell to you, the underwriter named in Schedule 1 hereto (the "Underwriter"), an
aggregate of 8,000,000 shares (the "Stock") of the Company's common stock, par
value $.001 per share (the "Common Stock"). This is to confirm the agreement
concerning the purchase of the Stock from the Company and the Selling
Stockholders by the Underwriter.
1. Representations, Warranties and Agreements of the Company. The Company
represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-107676) with
respect to the Stock has (i) been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder, (ii) been filed with the Commission under the Securities Act
and (iii) become effective under the Securities Act. Copies of such
registration statement and amendments thereto have been delivered by the
Company to you as the Underwriter. As used in this Agreement, "Effective
Time" means the date and the time as of which such registration statement,
or the most recent post-effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date" means the date of the
Effective Time; "Preliminary Prospectus" means each prospectus included in
such registration statement, or amendments thereto, before it became
effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Underwriter pursuant to
Rule 424(a) of the Rules and Regulations; "Registration Statement" means
such registration statement, as amended at the Effective Time, including
all information contained in the final prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations and deemed to be a
part of the registration statement as of the Effective Time pursuant to
paragraph (b) of
Rule 430A of the Rules and Regulations; and "Prospectus" means the prospectus
supplement and the accompanying prospectus and all information incorporated by
reference therein at such time, in the form first used to confirm sales of
Stock. Reference made herein to any Preliminary Prospectus or to the Prospectus
shall be deemed to refer to and include any documents incorporated by reference
therein pursuant to item 12 of Form S-3 under the Securities Act, as of the date
of such Preliminary Prospectus or the Prospectus, as the case may be, and any
reference to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended ("Exchange Act") after the date of
such Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in the Preliminary Prospectus or the Prospectus, as
the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to include any periodic report of the Company filed
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after
the Effective Time that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations and do not
and will not, as of the applicable Effective Date (as to the Registration
Statement and any amendment thereto) and as of the applicable filing date
(as to the Prospectus and any amendment or supplement thereto) 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; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriter specifically
for inclusion therein.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the Rules and Regulations, and
none of such documents contained an untrue statement of material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, when such documents
are filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations thereunder
and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(d) The Company and each of its subsidiaries (as defined in Section
17) have been duly incorporated or formed, as the case may be, and are
validly existing, as their respective business entities, and in good
standing under the laws of their respective jurisdictions of incorporation
or formation, as the case may be, are duly qualified to do business and are
in good standing as foreign corporations or limited liability companies
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in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification (except where the failure to so qualify or be in good
standing as a foreign corporation or limited liability company would not
have a material adverse effect on the consolidated financial position,
stockholders' or members' equity (as the case may be), results of
operation, business or prospects of the Company and its subsidiaries, taken
as a whole), and have all power and authority necessary to own or hold
their respective properties and to conduct the businesses in which they are
engaged; and none of the subsidiaries of the Company other than Denbury
Offshore, Inc. is a "significant subsidiary", as such term is defined in
Rule 405 of the Rules and Regulations under the Securities Act.
(e) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims except as disclosed in the
Prospectus.
(f) The shares of Stock to be sold by the Selling Stockholders to the
Underwriter hereunder have been duly and validly authorized.
(g) This Agreement has been duly authorized, executed and delivered by
the Company.
(h) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument, which violation,
breach or conflict would have a material adverse effect on the consolidated
financial position, stockholders' or members' equity (as the case may be),
results of operation, business or prospects of the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such actions result in any violation
of the provisions of the charter or by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets; and except for
the registration of the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Stock by the
Underwriter, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated hereby
other than those that have been obtained.
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(i) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right (other than rights which have been waived or
satisfied) to require the Company to file a registration statement under
the Securities Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(j) Except as set forth in the Prospectus, the Company has not sold or
issued any shares of Common Stock during the six-month period preceding the
date of the Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act other than shares issued pursuant
to director compensation plans, employee benefit plans, qualified stock
options plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
(k) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Prospectus, any material 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 court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus, and, since
such date, there has not been any change in the capital stock (except for
exercises of options since such date under the Company's existing director
compensation plans, existing stock option plan and issuances of stock
under, and the purchase of Company stock for, the Company's existing stock
purchase plan) or long-term debt of the Company or any of its subsidiaries
or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the management, financial
position, stockholders' equity or results of operations, business or
prospects of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus.
(l) The financial statements (including the related notes and
supporting schedules), filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
(m) Deloitte & Touche L.L.P., who have certified certain financial
statements of the Company, whose reports appear in the Prospectus and who
has delivered one of the initial letters referred to in Section 9(g)
hereof, are and have been independent public accountants as required by the
Securities Act and the Rules and Regulations, during the periods covered by
the financial statements on which they reported.
(n) DeGolyer and MacNaughton, whose reserve audits or evaluations are
referenced or appear, as the case may be, in the Prospectus, were, as of
December 31, 2001 and December 31,
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2002, and are, as of the date hereof, independent engineers with respect to
the Company and its subsidiaries.
(o) The Company and each of its subsidiaries has (1) generally
satisfactory or good and indefeasible title to all its interests in its oil
and gas properties, title investigations having been carried out by or on
behalf of such person in accordance with good practice in the oil and gas
industry in the areas in which such properties are located, (2) good and
marketable title in fee simple to all of its other real property, and (3)
good and marketable title to all personal property owned by it, in each
case free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not materially affect the
value of such properties as a whole and do not materially interfere with
the use made and proposed to be made of such properties as a whole by the
Company and its subsidiaries; and all real properties and buildings held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be made of
such properties and buildings as a whole by the Company and its
subsidiaries.
(p) The Company and its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as the Company reasonably
believes is adequate for the conduct of their respective businesses and the
value of their respective properties and is customary for companies engaged
in similar businesses in similar industries.
(q) The Company and its subsidiaries own or possess adequate rights to
use all material patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of their respective
businesses and have no reason to believe that the conduct of their
respective businesses will conflict with, and have not received any notice
of any claim of conflict with, any such rights of others.
(r) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company
or any of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would be reasonably expected to
have a material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries, taken as a whole; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(s) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(t) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the
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Prospectus or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations.
(u) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is required
to be described in the Prospectus which is not so described.
(v) No labor disturbance by the employees of the Company exists or, to
the knowledge of the Company, is imminent which might be reasonably
expected to have a material adverse effect on the management, consolidated
financial position, stockholders' equity, results of operations, business
or prospects of the Company and its subsidiaries, taken as a whole.
(w) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any material liability; the Company
has not incurred and does not expect to incur any material liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from,
any "pension plan" or (ii) Section 412 or 4971 of the Internal Revenue Code
of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which
the Company would have any material liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and, to the best of the Company's knowledge, nothing has occurred,
whether by action or by failure to act, which would cause the loss of such
qualification.
(x) The Company and its subsidiaries have filed all federal, state and
local income and franchise tax returns required to be filed through the
date hereof or have filed for appropriate extensions for such taxes and
have paid all taxes due thereon, and no tax deficiency has been determined
adversely to the Company or any of its subsidiaries which has had (nor does
the Company have any knowledge of any tax deficiency which, if determined
adversely to the Company or any of its subsidiaries, might have) a material
adverse effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole.
(y) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, the Company has not (i) except for exercises of options since
such date under the Company's existing director compensation plans or
existing stock option plan and issuances of stock under the Company's
existing stock purchase plan, issued or granted any securities, (ii)
incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its capital stock.
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(z) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted only
in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(aa) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any respect, and
no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is a
party or by which it is bound or to which any of its properties or assets
is subject or (iii) is in violation in any respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property
or assets may be subject or has failed to obtain any license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business, except, in the cases of clauses (ii) and (iii), such defaults,
events, violations or failures that in the aggregate might reasonably be
expected to have a material adverse effect on the management, consolidated
financial position, stockholders' equity, results of operations, business
or prospects of the Company and its subsidiaries, taken as a whole.
(bb) The course of conduct of the Company in transactions between the
Company and its subsidiaries on one hand, and Genesis Partners, L.P. (the
"Partnership") and its subsidiaries on the other hand, since the
acquisition by the Company of Genesis Energy LLC, the general partner of
the Partnership, has at all times been "fair and reasonable" to the
Partnership, as determined within the context of Section 7.9 of the limited
partnership agreement of the Partnership.
(cc) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of
its subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or its subsidiaries in violation
of any applicable law, ordinance, rule, regulation, order, judgment, decree
or permit or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except for
any violation or remedial action which would not have, or could not be
reasonably likely to have, singularly or in the aggregate with all such
violations and remedial actions, a material adverse effect on the
management, consolidated financial position, stockholders' equity, results
of operations, business or prospects of the Company and its subsidiaries,
taken as whole; there has been no material spill, discharge, leak,
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emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any toxic
wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or
with respect to which the Company or any of its subsidiaries have
knowledge, except for any such spill, discharge, leak, emission, injection,
escape, dumping or release which would not have or would not be reasonably
likely to have, singularly or in the aggregate with all such spills,
discharges, leaks, emissions, injections, escapes, dumpings and releases, a
material adverse effect on the management, consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries, taken as a whole; and the terms "hazardous
wastes", "toxic wastes", "hazardous substances" and "medical wastes" shall
have the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection
("Environmental Laws").
(dd) Neither the Company nor any subsidiary is an "investment company"
as defined in the Investment Company Act of 1940, as amended.
(ee) Except as described in the Prospectus, no subsidiary of the
Company is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
subsidiary's capital stock, from repaying 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.
(ff) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities ("Permit" or "Permits")
necessary for the ownership of property or assets or to conduct their
respective businesses except where the failure to have such Permits would
not reasonably be expected to have a material adverse effect on the
management, consolidated financial position, stockholders' equity, results
of operations, business or prospects of the Company and its subsidiaries,
taken as a whole; neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such Permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the management, consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries, taken as a whole; the Company and each of its
subsidiaries has operated and is operating its business in compliance with
and not in violation of any of its obligations with respect to each such
Permit except where such violation would not reasonably be expected to have
a material adverse effect on the management, consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries, taken as a whole; no event
has occurred which allows, or after notice or lapse of time or both would
allow, revocation or termination of any such Permit or result in any other
impairment of the rights of the Company or any of its subsidiaries under
any such Permit, subject in each case to such qualification as described in
the Prospectus; and, except as described in the Prospectus, such permits
contain no restrictions that are burdensome to the Company or any of its
subsidiaries except for restrictions that would not, singly or in the
aggregate, have a material adverse effect on the management, consolidated
financial position, stockholders' equity, results of operations, business
or prospects of the Company and its subsidiaries, taken as a whole.
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(gg) The principal executive officer and principal financial officer
of the Company have made all certifications required by the Sarbanes-Oxley
Act or any related rules and regulations promulgated by the Commission, and
the statements contained in any such certification are complete and
correct. The Company maintains "disclosure controls and procedures" (as
defined in Rule 13a-14(c) under the Exchange Act), and such controls and
procedures are designed (i) to ensure that information required to be
disclosed by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the
time periods specified in the Commission's rules and forms and (ii) to
ensure that information required to be disclosed by the Company in the
reports that it files or submits under the Exchange Act is accumulated and
communicated to the Company's management, including its principal executive
officer and principal financial officer, as appropriate to allow timely
decisions regarding required disclosure. The Company does not have any
material weaknesses in internal controls, and there has been no fraud,
whether or not material, that involves management or other employees who
have a significant role in the Company's internal controls. The Company is
otherwise in compliance in all material respects with all applicable
effective provisions of the Sarbanes-Oxley Act and the rules and
regulations promulgated by the Commission (and intends to comply with all
applicable provisions that are not yet effective upon effectiveness).
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 Stock shall be deemed a representation and warranty by the Company, as to
matters covered thereby, to the Underwriter.
2. Representations, Warranties and Agreements of the Selling Stockholders.
Each Selling Stockholder severally, and not jointly, represents, warrants and
agrees that:
(a) The Selling Stockholder has, and immediately prior to the Delivery
Date (as defined in Section 5 hereof) the Selling Stockholder will have,
good and valid title to the shares of Stock to be sold by the Selling
Stockholder hereunder on such date, free and clear of all liens,
encumbrances, equities or claims; and upon delivery of such shares and
payment therefor pursuant hereto and thereto (and assuming that the
Underwriter acquires the shares of Stock without any notice of any adverse
claim (within the meaning of Section 8-105 of the Uniform Commercial Code)
that has been created by the Underwriter or its Affiliates) good and valid
title to such shares, free and clear of all liens, encumbrances, equities
or claims, will pass to the Underwriter.
(b) The Selling Stockholder has full right, partnership power and
authority to enter into this Agreement; the execution, delivery and
performance of this Agreement by the Selling Stockholder and the
consummation by the Selling Stockholder of the transactions contemplated
hereby will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Selling Stockholder is a party or by which the
Selling Stockholder is bound or to which any of the property or assets of
the Selling Stockholder is subject, nor will such actions result in any
violation of the provisions of the certificate of limited partnership or
the
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partnership agreement of the Selling Stockholder, or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Selling Stockholder or the property or assets
of the Selling Stockholder; and, except for the registration of the Stock
under the Securities Act and such consents, approvals, authorizations,
registrations, filings or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection with the
purchase and distribution of the Stock by the Underwriter, no consent,
approval, authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Selling Stockholder and
the consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby.
(c) The Registration Statement and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus,
when they become effective or are filed with the Commission, as the case
may be, do not and will not, as of the applicable Effective Date (as to the
Registration Statement and any amendment thereto) and as of the applicable
filing date (as to the Prospectus and any amendment or supplement thereto)
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; provided, however, the foregoing representations
and warranties shall only apply to statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to such Selling Stockholder furnished
to the Company in writing by such Selling Stockholder expressly for use
therein; and provided, further, that no representation or warranty is made
as to information contained in or omitted from the Registration Statement
or the Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter
specifically for inclusion therein.
(d) The Selling Stockholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in the stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the shares of the Stock.
3. Purchase of the Stock by the Underwriter. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, each Selling Stockholder hereby agrees to sell
the number of shares of the Stock set opposite its name in Schedule 2 hereto,
severally and not jointly, to the Underwriter and the Underwriter agrees to
purchase the number of shares of the Stock set opposite the Underwriter's name
in Schedule 1 hereto. The price of the Stock shall be $13.25 per share.
The Selling Stockholders shall not be obligated to deliver any of the Stock
to be delivered on the Delivery Date except upon payment for all the Stock to be
purchased on the Delivery Date as provided herein.
4. Offering of Stock by the Underwriter. Upon authorization by the
Underwriter of the release of the Stock, the Underwriter proposes to offer the
Stock for sale upon the terms and conditions set forth in the Prospectus.
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5. Delivery of and Payment for the Stock. Delivery of and payment for the
Stock shall be made at the office of Vinson & Elkins L.L.P., 2300 First City
Tower, 1001 Fannin, Houston, Texas 77002, at 9:00 A.M., Houston, Texas time, on
the fourth full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the Underwriter,
the Selling Stockholders and the Company. This date and time are sometimes
referred to herein as the "Delivery Date." On the Delivery Date, the Selling
Stockholders shall deliver or cause to be delivered certificates representing
the Stock to the Underwriter for the account of the Underwriter against payment
to or upon the order of the Selling Stockholders of the purchase price by wire
transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of the Underwriter hereunder. Upon delivery, the
Stock shall be registered in such names and in such denominations as the
Underwriter shall request in writing not less than two full business days prior
to the Delivery Date. For the purpose of expediting the checking and packaging
of the certificates for the Stock, the Selling Stockholders shall, or shall
cause a custodian to, make the certificates representing the Stock available for
inspection by the Underwriter in New York, New York, not later than 2:00 P.M.,
New York City time, on the business day prior to the Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Underwriter
and to file the Prospectus pursuant to Rule 424(b) under the Securities Act
not later than the Commission's close of business on the second business
day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under
the Securities Act; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus except as permitted herein; to
advise the Underwriter, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Underwriter with copies
thereof; to advise the Underwriter, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Stock for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to the Underwriter and to counsel for the
Underwriter a signed copy of the Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
11
(c) To deliver promptly to the Underwriter such number of the
following documents as the Underwriter shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits)
and, (ii) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; and, if the delivery of a prospectus is required
at any time after the Effective Time in connection with the offering or
sale of the Stock or any other securities relating thereto and if at such
time any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Securities Act or the Exchange
Act, to notify the Underwriter and, upon its request, to file such document
and to prepare and furnish without charge to the Underwriter and to any
dealer in securities as many copies as the Underwriter may from time to
time reasonably request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Underwriter, be
required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any prospectus pursuant to
Rule 424 of the Rules and Regulations, to furnish a copy thereof to the
Underwriter and counsel for the Underwriter and obtain the consent of the
Underwriter to the filing; provided, that the foregoing restriction shall
not preclude the Company from (x) filing without the consent of the
Underwriter any document required to be filed under the Exchange Act or (y)
after the period set forth in Section 6(i) of this Agreement, amending the
Registration Statement or filing a prospectus;
(f) As soon as practicable after the Effective Date, to make generally
available to the Company's security holders and to deliver to the
Underwriter an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities
Act and the Rules and Regulations (including, at the option of the Company,
Rule 158);
(g) For a period of three years following the Effective Date, to
furnish to the Underwriter copies all materials furnished by the Company to
its stockholders and all public reports and all reports and financial
statements furnished by the Company to the principal national securities
exchange upon which the Common Stock may be listed pursuant to requirements
of or agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder;
provided however that the Company shall not be required to provide the
Underwriter
12
with any such reports, registration statements or similar forms that have
been filed with the Commission by electronic transmission pursuant to
EDGAR;
(h) Promptly from time to time to take such action as the Underwriter
may reasonably request to qualify the Stock for offering and sale under the
securities laws of such jurisdictions as the Underwriter may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Stock; provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(i) Prior to the Effective Date, to apply, to the extent necessary,
for the listing of the Stock on the New York Stock Exchange and to use its
best efforts to complete that listing, subject only to official notice of
issuance, prior to the Delivery Date;
(j) To take such steps as shall be necessary to ensure that neither
the Company nor any subsidiary shall become an "investment company" within
the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder; and
(k) To not directly or indirectly take any action designed to or which
has constituted or which might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Stock.
7. Further Agreements of the Selling Stockholders. Each Selling
Stockholder, severally and not jointly, agrees:
(a) For a period of 45 days from the date of the Prospectus not to (1)
offer for sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result
in the disposition by any person at any time in the future of) any shares
of Common Stock or securities convertible into or exchangeable for Common
Stock (other than the Stock) or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any
of the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (1) or (2) above is
to be settled by delivery of Common Stock or other securities, in cash or
otherwise, without the prior written consent of the Underwriter;
(b) That the Stock to be sold by the Selling Stockholder hereunder is
subject to the interest of the Underwriter and the other Selling
Stockholders hereunder, and that the Selling Stockholders shall not,
directly or indirectly, take any action that may terminate its obligations
hereunder (other than the termination of this Agreement); and
(c) To deliver to the Underwriter on or prior to the Delivery Date a
properly completed and executed United States Treasury Department Form W-9.
8. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs
13
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus, all as provided in this Agreement; (d) the costs
of producing and distributing this Agreement and any other related documents in
connection with the offering, purchase, sale and delivery of the Stock; (e) the
filing fees incident to securing any required review by the NASD of the terms of
sale of the Stock; (f) any applicable listing or other fees; (g) all other costs
and expenses incident to the performance of the obligations of the Company and
the Selling Stockholders under this Agreement except that the discount to the
Underwriter for the purchase of the Stock shall be borne by the Selling
Stockholders; provided that, except as provided in this Section 8 and in Section
13 below the Underwriter shall pay its own costs and expenses, including the
costs and expenses of its counsel, any transfer taxes on the Stock which they
may sell and the expenses of advertising any offering of the Stock made by the
Underwriter, and, as between the Underwriter and the Selling Stockholders only,
each of the Selling Stockholders shall pay the fees and expenses of his or its
counsel, any custodian (and any other attorney-in-fact), and any transfer taxes
payable in connection with his or its respective sales of Stock to the
Underwriter; and provided further, that the provisions of this Section 8 shall
not affect any agreement that the Company and any Selling Stockholder may have
entered into, or may hereafter enter into, with respect to the sharing or
reimbursement of any of the foregoing costs and expenses.
9. Conditions of Underwriter's Obligations. The respective obligations of
the Underwriter hereunder are subject to the accuracy, when made and on the
Delivery Date, of the representations and warranties of the Company and the
Selling Stockholders contained herein, to the performance by the Company and the
Selling Stockholders of their respective obligations hereunder, and to each of
the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 6(a) above; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Delivery Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of Vinson & Elkins L.L.P.,
counsel for the Underwriter, is material or omits to state a fact which, in
the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Stock, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall
be reasonably satisfactory in all material respects to counsel for the
Underwriter, and the Company and the Selling Stockholders shall have
14
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Jenkens and Gilchrist, A Professional Corporation, shall have
furnished to the Underwriter its written opinion, as counsel to the
Company, addressed to the Underwriter and dated the Delivery Date, in form
and substance reasonably satisfactory to the Underwriter, to the effect
that:
(i) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations or limited
liability companies, as the case may be, in good standing under the
laws of their respective jurisdictions of incorporation or formation,
are duly qualified to do business and are in good standing as foreign
corporations or limited liability companies in each jurisdiction in
which their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification, (other
than where the failure to so qualify or be in good standing as a
foreign corporation would not have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operation or business of the Company and its subsidiaries, taken as a
whole), and have all power and authority necessary to own or hold
their respective properties and conduct the businesses described in
the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof
contained in the Prospectus; and all of the issued shares of capital
stock (or the equivalent) of each subsidiary of the Company have been
duly and validly authorized and issued and are fully paid,
non-assessable and (except for any directors' qualifying shares) are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iii) The shares of the Stock being delivered on the Delivery
Date to the Underwriter hereunder have been duly and validly
authorized and validly issued and are fully paid and non-assessable;
(iv) Except as described in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares of the Common
Stock (including the Stock) pursuant to the Company's charter or
by-laws or any agreement or other instrument filed as an exhibit to
one of the Company's periodic reports under the Exchange Act;
(v) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, might have a
material adverse effect on the consolidated
15
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries, taken as a
whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(vi) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such counsel's
opinion, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and Regulations specified in
such opinion on the date specified therein and no stop order
suspending the effectiveness of the Registration Statement has been
issued and, to the knowledge of such counsel, no proceeding for that
purpose is pending or threatened by the Commission;
(vii) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior to
the Delivery Date (except for the financial statements and financial
schedules and other financial and related reserve information included
therein, as to which such counsel need express no belief) comply as to
form in all material respects with the requirements of the Securities
Act and the Rules and Regulations, and the documents incorporated by
reference in the Prospectus when they where filed with the Commission
(except for the financial statements and financial schedules and other
financial and related reserve information included therein, as to
which such counsel need express no belief) complied as to form in all
material respects with the requirements of the Exchange Act and the
Rules and Regulations;
(viii) The statements contained in the Prospectus under the
heading "Description of Capital Stock" insofar as such statements
refer to statements of law, descriptions of statutes, rules or
regulations or legal conclusions, are accurate and fair summaries of
such statements of law, descriptions of statutes, rules or regulations
or legal conclusions;
(ix) To such counsel's knowledge, there are no contracts or other
documents which are required to be described in the Prospectus or
filed as exhibits to the Registration Statement by the Securities Act
or by the Rules and Regulations which have not been described or filed
as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations;
(x) This Agreement has been duly authorized, executed and
delivered by the Company;
(xi) The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions contemplated
hereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of
16
its subsidiaries is bound or to which any of the material property or
assets of the Company or any of its subsidiaries is subject, nor will
such actions result in any violation of the provisions of the charter
or by-laws of the Company or any of its subsidiaries or any statute or
any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties or assets; and,
except for the registration of the Stock under the Securities Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase and
distribution of the Stock by the Underwriter, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby and thereby;
(xii) To such counsel's knowledge, except as described or
included in the Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such person
the right (other than rights which have been waived or satisfied) to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act;
(xiii) Neither the Company nor any subsidiary is an "investment
company" as defined in the Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may state that (x) their opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the State of Texas and the General Corporation Law of the State of
Delaware, and that such counsel is not admitted in Delaware and (y) insofar as
the foregoing opinions relate to the valid existence and good standing of the
Company and its subsidiaries, they are based solely on certificates of
authorities in the states of organization of the Company and such subsidiaries
that such counsel received in response to such counsel's requests for
confirmation of the existence and good standing of the Company and such
subsidiaries in such states, copies of which certificates have been furnished to
you, and, in rendering the opinion set forth in opinion (i) above with respect
to the qualification and the good standing as a foreign corporation of the
Company and such subsidiaries, such counsel has relied solely on certificates
such counsel received from the states necessary to give such opinion that such
counsel received in response to such counsel's requests for confirmation of such
qualification and good standing, as the case may be, of the Company and such
subsidiaries in such states, copies of which certificates have been furnished to
you.
Such counsel shall also have furnished to the Underwriter a written
statement, addressed to the Underwriter and dated the Delivery Date, in form and
substance reasonably satisfactory to the Underwriter, to the effect that (x)
such counsel has acted as counsel to the Company in connection with the
preparation of the Registration Statement and (y) based on the foregoing, no
17
facts have come to the attention of such counsel which lead them to believe
that the Registration Statement (except for the financial statements and related
schedules and other financial data, and reserve information included therein, as
to which such counsel need express no belief) as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus (except as stated above) contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing opinion
and statement may be qualified by a statement to the effect that such counsel
does not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Prospectus, except
for the statements made in the Prospectus under the caption "Description of
Capital Stock" insofar as such statements relate to the Stock and concern legal
matters.
(e) Cleary, Gottlieb, Steen & Hamilton shall have furnished to the
Underwriter its written opinion, as counsel to each of the Selling
Stockholders, addressed to the Underwriter and dated the Delivery Date, in
form and substance reasonably satisfactory to the Underwriter, to the
effect that:
(i) Each of the Selling Stockholders has been duly formed as a
limited partnership under the Delaware Revised Uniform Limited
Partnership Act, 6 Del. Sec. 17-101 et. seq. and is validly existing
and in good standing under the laws of the State of Delaware.
(ii) Each Selling Stockholder has the partnership power to enter
into this Agreement and to perform its obligations thereunder;
(iii) The execution, delivery and performance of this Agreement
have been duly authorized by all necessary partnership action of each
Selling Stockholder. The Underwriting Agreement has been duly executed
and delivered by each Selling Stockholder;
(iv) The execution and delivery by each Selling Stockholder of
this Agreement and the performance of its obligations hereunder (a) do
not require any consent, approval, authorization, registration or
qualification of or with any governmental authority of the United
States of America or the State of New York, except such as may be
required under the Securities Act of 1933 and the Securities Exchange
Act of 1934 (but without expressing an opinion as to any consent,
approval, authorization, registration or qualification that may be
required under state securities or Blue Sky laws), (b) do not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any of the constituent documents of the
Selling Stockholder and (c) do not violate the terms of any New York
State or United States federal law or regulation of the Delaware
Partnership Act (but without expressing any opinion with respect to
United States federal securities laws or any state securities or Blue
Sky laws).
18
(v) Assuming the Underwriter acquires its interest in the Stock
to be sold by the Selling Stockholders to the Underwriter without
notice of any adverse claim (within the meaning of the Uniform
Commercial Code as in effect in the State of New York (the "UCC")) and
the Underwriter has paid the purchase price for such Stock and has had
such Stock credited to the securities account of the Underwriter
maintained with The Depository Trust Company, then the Underwriter
will have a securities entitlement (as defined in Section 8-102(a)(17)
of the UCC) to such Stock purchased by the Underwriter and no action
based on an adverse claim to such Stock credited to such securities
account, whether framed in conversion, replevin, constructive trust,
equitable lien or other theory, may be asserted against the
Underwriter.
In rendering such opinion, such counsel may (x) limit the opinion in
section 9(e)(iv) above to those documents received by counsel set forth in an
exhibit to the opinion (which constituent documents shall be certified as true,
complete and correct copies by the Selling Stockholders or their affiliates) and
(y) state that its opinion is limited to matters governed by the Federal laws of
the United States of America and the laws of the State of New York, the Delaware
Revised Uniform Limited Partnership Act and the General Corporation Law of
Delaware and that such counsel is not admitted in Delaware.
(f) The Underwriter shall have received from Vinson & Elkins L.L.P.,
counsel for the Underwriter, such opinion or opinions, dated the Delivery
Date, with respect to the issuance and sale of the Stock, the Registration
Statement, the Prospectus and other related matters as the Underwriter may
reasonably require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(g) At the Delivery Date, the Underwriter shall have received a letter
from Deloitte & Touche LLP, in form and substance satisfactory to the
Underwriter, addressed to the Underwriter and dated the date hereof (i)
confirming that they are independent public accountants within the meaning
of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01
of Regulation S-X of the Commission, (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the Prospectus, as of a date not more than five days prior to the date
hereof), the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings.
(h) At the Delivery Date, the Company shall have furnished to the
Underwriter a letter from DeGolyer and MacNaughton addressed to the
Underwriter and dated the date of the Delivery Date confirming that they
are, and as of the date of their reports referred to in Section 1(n) hereof
were, independent engineers with respect to the Company and stating, as of
the date of such letter, that they have no knowledge of any fact or event
that would cause any change to the conclusions and findings of such firm at
the time made with respect to the information referred to in Section 1(n)
hereof.
19
(i) The Company shall have furnished to the Underwriter, addressed to
the Underwriter, a certificate, dated the Delivery Date, of its chief
executive officer and its chief financial officer stating that:
(i) The representations, warranties and agreements of the Company
in Section 1 hereof are true and correct as of the Delivery Date; the
Company has complied with all its agreements contained herein; and the
conditions set forth in Sections 9(a) and 9(k) hereof have been
fulfilled; and
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (B) since the Effective Date no event has
occurred which should have been set forth in a supplement or amendment
to the Registration Statement or the Prospectus.
(j) Each Selling Stockholder (or any custodian or one or more
attorneys-in-fact on behalf of each Selling Stockholder) shall have
furnished to the Underwriter on the Delivery Date a certificate, dated the
Delivery Date, signed by, or on behalf of, the Selling Stockholder (or any
custodian or one or more attorneys-in-fact) stating that the
representations, warranties and agreements of the Selling Stockholder
contained herein are true and correct in all material respects as of the
Delivery Date and that the Selling Stockholder has complied with all
agreements contained herein to be performed by the Selling Stockholder at
or prior to the Delivery Date.
(k) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in 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 court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus or
(ii) since such date there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders' equity,
prospects or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus, the effect
of which, in any such case described in clause (i) or (ii), is, in the
judgment of the Underwriter, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Stock being delivered on the Delivery Date on the terms and
in the manner contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
20
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of the Underwriter, impracticable or inadvisable to proceed with the public
offering or delivery of the Stock being delivered on the Delivery Date on
the terms and in the manner contemplated in the Prospectus.
(m) To the extent required, the New York Stock Exchange shall
have approved the Stock for listing, subject only to official notice
of issuance.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless the Underwriter, its
officers and employees and each person, if any, who controls the
Underwriter within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Stock), to which the
Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in (A)
any Preliminary Prospectus, the Registration Statement or the Prospectus or
in any amendment or supplement thereto or (B) in any materials or
information provided to investors by, or with the approval of, the Company
in connection with the marketing of the offering of the Stock ("Marketing
Materials"), including any roadshow or investor presentations made to
investors by the Company (whether in person or electronically); (ii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Marketing Materials any material fact required to be
stated therein or necessary to make the statements therein not misleading;
or (iii) any act or failure to act or any alleged act or failure to act by
the Underwriter in connection with, or relating in any manner to, the Stock
or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of
or based upon matters covered by clause (i) or (ii) above (provided that
the Company shall not be liable under this clause (iii) to the extent that
it is determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly from
any such acts or failures to act undertaken or omitted to be taken by the
Underwriter through its gross negligence or willful misconduct), and shall
reimburse the Underwriter and each such officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably
incurred by the
21
Underwriter, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning the Underwriter furnished to the Company through the Underwriter
by or on behalf of the Underwriter specifically for inclusion therein which
consists solely of information set forth in Section 10(f) hereof; and
provided further, however that the Company shall not be liable to the
Underwriter in any such case with respect to any untrue statement or
alleged untrue statement or omission or alleged omission of a material fact
in the Preliminary Prospectus to the extent that the loss, claim, damage or
liability of the Underwriter (or the action in respect thereof) arises out
of a sale by the Underwriter of Stock to a person who was not sent or
given, at or prior to the closing of such sale to such person, a copy of
the Prospectus as then amended or supplemented, if the Company had
previously furnished (or made available) copies thereof to the Underwriter
and the statement or omission in question contained in the Preliminary
Prospectus was corrected therein. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to the
Underwriter or to any officer, employee or controlling person of the
Underwriter.
(b) Each Selling Stockholder, severally and not jointly, shall
indemnify and hold harmless the Underwriter, its officers and employees,
and each person, if any, who controls the Underwriter within the meaning of
the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Stock), to which the Underwriter, officer, employee
or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (1) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (2) the omission or alleged omission to state in any Preliminary
Prospectus, Registration Statement or the Prospectus, or in any amendment
or supplement thereto, any material fact required to be stated therein or
necessary to make the statements therein not misleading, in the case of
subparagraphs (1) and (2) of this Section to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company or the Underwriter by such
Selling Stockholder directly or through such Selling Stockholder's
representatives, specifically for use in the preparation thereof; and shall
reimburse the Underwriter, its officers and employees and each such
controlling person for any legal or other expenses reasonably incurred by
the Underwriter, its officers and employees or controlling person in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Selling Stockholders shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement
or alleged
22
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with written
information concerning the Underwriter furnished to the Company by or on
behalf of the Underwriter specifically for inclusion therein which consists
solely of the information specified in Section 10(f) hereof and provided,
further, that with respect to any Preliminary Prospectus, the foregoing
indemnity agreement shall not inure to the benefit of the Underwriter from
whom the person asserting any loss, claim, damage, liability or expense
purchased Stock, or any person controlling the Underwriter, if copies of
the Prospectus were timely delivered to the Underwriter pursuant to this
Agreement and a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of the Underwriter to such person, if
required by law so to have been delivered and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage, liability or expense. However, in no event shall the
Selling Stockholder be liable under the provisions of this Section 10 for
any amount in excess of the total proceeds received by such Selling
Stockholder from the sale of the Stock by such Selling Stockholder (after
deducting commissions, but before taxes and any other expenses) pursuant to
this Agreement. The foregoing indemnity agreement is in addition to any
liability which the Selling Stockholders may otherwise have to the
Underwriter or any officer, employee or controlling person of the
Underwriter.
(c) The Underwriter shall indemnify and hold harmless the Company, its
officers and employees, each of its directors, and each person, if any, who
controls the Company within the meaning of the Securities Act, and each
Selling Stockholder and its officers and employees, each of its directors,
and each person if any, who controls the Selling Stockholder within the
meaning of the Securities Act from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration Statement or the Prospectus
or in any amendment or supplement thereto or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any amendment or supplement thereto, or in any
Marketing Materials any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information concerning the Underwriter furnished to the
Company through the Underwriter by or on behalf of the Underwriter
specifically for inclusion therein, and shall reimburse the Company, such
Selling Stockholder and any such director, officer or controlling person of
the Company or the Selling Stockholder for any legal or other expenses
reasonably incurred by the Company, such Selling Stockholder or any such
director, officer or controlling person of the Company or the Selling
Stockholder in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to
any liability which the Underwriter
23
may otherwise have to the Company, such Selling Stockholder or any such
director, officer, employee or controlling person of the Company or the
Selling Stockholder.
(d) Promptly after receipt by an indemnified party under this Section
10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 10 except to the extent it has been materially prejudiced by such
failure; and, provided further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 10. If any such claim
or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 10
for any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Underwriter shall have the right
to employ counsel to represent the Underwriter and its respective officers,
employees and controlling persons who may be subject to liability arising
out of any claim in respect of which indemnity may be sought by the
Underwriter against the Company or any Selling Stockholder under this
Section 10 if, in the reasonable judgment of the Underwriter, it is
advisable for the Underwriter, officers, employees and controlling persons
to be jointly represented by separate counsel, and in that event the fees
and expenses of such separate counsel shall be paid by the Company or
Selling Stockholders. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or
proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with the consent of the indemnifying
party or if there be a final judgment of the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a), 10(b) or 10(c) in respect of any
loss, claim, damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such
24
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriter on the other from the
offering of the Stock 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 and the Selling
Stockholders on the one hand and the Underwriter on the other with respect
to the statements or omissions which resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant
equitable considerations; provided, the Selling Stockholders and the
Underwriter shall be obligated to contribute under this Section 10(e) only
with respect to losses, liabilities, claims, damages or expenses arising
out of an untrue statement or omission or alleged untrue statement or
omission of a material fact made in reliance upon and in conformity with
the written information furnished to the Company or the Underwriter or any
Selling Stockholder, as the case may be, by the Underwriter or the Selling
Stockholders directly or through such Selling Stockholder's
representatives, as the case may be, specifically for use in the
preparation of any Preliminary Prospectus, Registration Statement or the
Prospectus or in any amendment or supplement thereto. The relative benefits
received by the Company and the Selling Stockholders on the one hand and
the Underwriter on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of
the Stock purchased under this Agreement (before deducting expenses)
received by the Company and the Selling Stockholders, on the one hand, and
the total underwriting discounts and commissions received by the
Underwriter with respect to the shares of the Stock purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the
offering of the shares of the Stock under this Agreement, in each case as
set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company, the
Selling Stockholders or the Underwriter, the intent of the parties and
their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company, the Selling
Stockholders and the Underwriter agree that it would not be just and
equitable if contributions pursuant to this Section 10(e) were to be
determined by pro rata allocation or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of
the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section shall be deemed to include, for purposes
of this Section 10(e), any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 10(e),
(i) the Underwriter shall not be required to contribute any amount in
excess of the amount by which the total price at which the Stock
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which the Underwriter has otherwise paid
or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission and (ii) no Selling Stockholder shall be
required to contribute any amount in excess of the total proceeds received
by such Selling Stockholder from the offering of the
25
Stock by such Selling Stockholder (after deducting commissions, but before
taxes and any other expenses). No person guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(f) The Underwriter confirms and the Company acknowledges that the
statements with respect to the public offering of the Stock by the
Underwriter set forth on the cover page of, the name of the Underwriter and
its participation in the sale of Stock under the caption "Underwriting" in,
and the paragraphs addressing the underwriting discount, concessions and
reallowances, stabilization, short positions, syndicate transactions and
penalty bids appearing under the caption "Underwriting" in, the Prospectus
are correct and constitute the only information concerning the Underwriter
furnished in writing to the Company by or on behalf of the Underwriter
specifically for inclusion in the Registration Statement and the
Prospectus.
11. [Section Intentionally Omitted]
12. Termination. The obligations of the Underwriter hereunder may be
terminated by the Underwriter by notice given to and received by the Company and
the Selling Stockholders prior to delivery of and payment for the Stock if,
prior to that time, any of the events described in Sections 9(k) or 9(l) hereof,
shall have occurred or if the Underwriter shall decline to purchase the Stock
for any reason permitted under this Agreement.
13. Reimbursement of Underwriters' Expenses. If any Selling Stockholder
shall fail to tender the Stock for delivery to the Underwriter by reason of any
failure, refusal or inability on the part of the Company or any Selling
Stockholder to perform any agreement on its part to be performed, or because any
other condition of the Underwriter's obligations hereunder required to be
fulfilled by the Company or the Selling Stockholders is not fulfilled, the
Company will reimburse the Underwriter for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) incurred by the
Underwriter in connection with this Agreement and the proposed purchase of the
Stock, and upon demand the Company shall pay the full amount thereof to the
Underwriter. If this Agreement is terminated pursuant to Section 12 hereof by
reason of the default of the Underwriter, neither the Company nor the Selling
Stockholders shall be obligated to reimburse the Underwriter on account of those
expenses.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by mail, telex
or facsimile transmission to CIBC World Markets Corp., 417 5th Avenue, 2nd
Floor, New York, New York 10016, Attention: William Schreier (Fax :
212-667-5730);
(b) if to the Company, shall be delivered or sent by mail, telex,
facsimile transmission or recognized overnight delivery service to the
address of the Company set forth in the Registration Statement, Attention:
Phil Rykhoek (Fax: (972) 673-2051); and
26
(c) if to any Selling Stockholder, shall be delivered or sent by mail,
telex, facsimile transmission or recognized overnight delivery service
to such Selling Stockholder at the address set forth on Schedule 2
hereto;
provided, however, that any notice to the Underwriter pursuant to Section 10(d)
above shall be delivered or sent by mail, telex, facsimile transmission or
recognized overnight delivery service to the Underwriter at its address set
forth in its acceptance telex to the Underwriter, which address will be supplied
to any other party hereto by the Underwriter upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof. The Company and the Underwriter shall be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of the Selling
Stockholders by a custodian.
15. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the Underwriter, the Company, the Selling
Stockholders and their respective personal representatives and successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (A) the representations, warranties, indemnities and
agreements of the Company and the Selling Stockholders contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control the Underwriter within the meaning of Section 15 of the
Securities Act and (B) the indemnity agreement of the Underwriters contained in
Section 10(c) of this Agreement shall be deemed to be for the benefit of
directors of the Company, directors or general partners of the Selling
Stockholders, as the case may be, officers of the Company who have signed the
Registration Statement and any person controlling the Company or a Selling
Stockholder within the meaning of Section 15 of the Securities Act. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 15, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
16. Survival. The respective indemnities, representations, warranties and
agreements of the Company, the Selling Stockholders and the Underwriter
contained in this Agreement or made by or on behalf on them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Stock and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
17. Definition of the Terms "Business Day" and "Subsidiary." For purposes
of this Agreement, (a) "business day" means any day on which the American Stock
Exchange is open for trading and (b) "subsidiary" has the meaning set forth in
Rule 405 of the Rules and Regulations.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
27
20. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
28
If the foregoing correctly sets forth the agreement among the Company, the
Selling Stockholders and the Underwriter, please indicate your acceptance in the
space provided for that purpose below.
Very truly yours,
Denbury Resources Inc.
/s/ Phil Rykhoek
By: ---------------------------------------------
Name: Phil Rykhoek
Title: Senior Vice President and Chief Financial
Officer
The Selling Stockholders named in Schedule 2
to this Agreement:
TPG Partners, L.P.
By: TPG GenPar, L.P., general partner
By: TPG Advisors, Inc., general partner
/s/ James J. O'Brien
By: -----------------------------------------
Name: James J. O'Brien
Title: Vice President
TPG Parallel I, L.P.
By: TPG GenPar, L.P., general partner
By: TPG Advisors, Inc., general partner
/s/ James J. O'Brien
By: -----------------------------------------
Name: James J. O'Brien
Title: Vice President
29
TPG Partners II, L.P.
By: TPG GenPar II, L.P., general partner
By: TPG Advisors II, Inc.
/s/ James J. O'Brien
By: -----------------------------------------
Name: James J. O'Brien
Title: Vice President
TPG Parallel II, L.P.
By: TPG GenPar II, L.P., general partner
By: TPG Advisors II, Inc.
/s/ James J. O'Brien
By: -----------------------------------------
Name: James J. O'Brien
Title: Vice President
TPG Investors II, L.P.
By: TPG GenPar II, L.P., general partner
By: TPG Advisors II, Inc.
/s/ James J. O'Brien
By: -----------------------------------------
Name: James J. O'Brien
Title: Vice President
TPG 1999 Equity Partners II, L.P.
By: TPG Advisors II, Inc.
/s/ James J. O'Brien
By: -----------------------------------------------
Name: James J. O'Brien
Title: Vice President
30
Accepted:
CIBC WORLD MARKETS CORP.
By: /s/ M. Mark Albert
-----------------------------------------
M. Mark Albert
Managing Director
31
SCHEDULE 1
Number of Shares of Stock to be
Name of Underwriter Purchased
------------------- -------------------------------
CIBC World Markets Corp.................................................. 8,000,000
Schedule 1-1
SCHEDULE 2
Name and address of Selling Stockholder Number of Shares of Stock
- --------------------------------------- -------------------------
TPG Partners, L.P. (1) 2,326,306
TPG Parallel I, L.P. (1) 231,834
TPG Partners II, L.P. (1) 4,636,581
TPG Parallel II, L.P. (1) 316,412
TPG Investors II, L.P. (1) 483,643
TPG 1999 Equity Partners II, L.P. (1) 5,224
---------
Total 8,000,000
=========
- ---------------
(1) The address for such Selling Stockholder is 301 Commerce Street, Suite 3300,
Fort Worth, Texas 76102, Attn: Richard A. Ekleberry.
Schedule 2-1