EXHIBIT 1.1
Execution Copy
9,274,314 Shares
DENBURY RESOURCES INC.
Common Stock
UNDERWRITING AGREEMENT
March 22, 2004
LEHMAN BROTHERS INC.
745 Seventh Avenue
New York, NY 10019
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 9,274,314 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 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
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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 (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., Denbury Onshore, LLC and D enbury Operating Company 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 will deliver the letter 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.
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(n) DeGolyer and MacNaughton, whose reserve audits or evaluations are
referenced or appear, as the case may be, in the Prospectus and who
will deliver the letter referred to in Section 9(h) hereof, were, as
of December 31, 2002 and December 31, 2003, 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.
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(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 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, 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,
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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,
except that assets may not be transferred to Genesis Energy, Inc.
(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
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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.
(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
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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 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.
(e) The number of shares of Stock beneficially owned by the Selling
Stockholders is not materially greater than the number set forth
on Schedule 2.
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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 $15.02 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.
5. Delivery of and Payment for the Stock. Delivery of and payment for the
Stock shall be made at the office of Andrews Kurth LLP, 600 Travis,
Suite 4200, 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
11
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;
(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;
12
(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 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) 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
(b) To deliver to the Underwriter on or prior to the Delivery Date a
properly completed and executed United States Treasury Department
Form W-9.
13
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 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 Andrews
Kurth LLP, 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
14
contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriter, and the Company
and the Selling Stockholders shall have 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
15
subject 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; 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
16
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
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)
17
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
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 Andrews Kurth LLP,
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 Underwriter,
21
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
22
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 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
23
agreement is in addition to any liability which the Underwriter 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
24
paid or payable by such 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 Stock by such Selling Stockholder
25
(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 Lehman Brothers Inc., Syndicate
Registration Department, 1285 Avenue of the Americas, 13th Floor,
New, New York, NY 10019 (Fax: 212-526-0943), with a copy, in the
case of any notice pursuant to Section 8(c), to the Director of
Litigation, Office of the General Counsel, Lehman Brothers Inc.,
399 Park Avenue, 10th Floor, New York, New York 10022;
26
(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
(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.
27
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.
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.
By: /s/ Gareth Roberts
-----------------------------------------
Name: Gareth Roberts
Title: President and Chief Executive 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
By: /s/ Richard A. Ekleberry
-----------------------------------
Name: Richard A. Ekleberry
Title: Vice President
TPG Parallel I, L.P.
By: TPG GenPar, L.P., general partner
By: TPG Advisors, Inc., general partner
By: /s/ Richard A. Ekleberry
-----------------------------------
Name: Richard A. Ekleberry
Title: Vice President
29
TPG Partners II, L.P.
By: TPG GenPar II, L.P., general partner
By: TPG Advisors II, Inc.
By: /s/ Richard A. Ekleberry
-----------------------------------
Name: Richard A. Ekleberry
Title: Vice President
TPG Parallel II, L.P.
By: TPG GenPar II, L.P., general partner
By: TPG Advisors II, Inc.
By: /s/ Richard A. Ekleberry
-----------------------------------
Name: Richard A. Ekleberry
Title: Vice President
TPG Investors II, L.P.
By: TPG GenPar II, L.P., general partner
By: TPG Advisors II, Inc.
By: /s/ Richard A. Ekleberry
-----------------------------------
Name: Richard A. Ekleberry
Title: Vice President
TPG 1999 Equity Partners II, L.P.
By: TPG Advisors II, Inc.
By: /s/ Richard A. Ekleberry
-----------------------------------
Name: Richard A. Ekleberry
Title: Vice President
30
Accepted:
LEHMAN BROTHERS INC.
By: /s/ David B. Andrews
---------------------------------------
Authorized Representative
31
SCHEDULE 1
Number of Shares of Stock to be
Name of Underwriter Purchased
------------------- -------------------------------
Lehman Brothers Inc...................................................... 9,274,314
Schedule 1-1
SCHEDULE 2
Name and address of Selling Stockholder Number of Shares of Stock
- --------------------------------------- -------------------------
TPG Partners, L.P. (1) 2,696,861
TPG Parallel I, L.P. (1) 268,762
TPG Partners II, L.P. (1) 5,375,140
TPG Parallel II, L.P. (1) 366,813
TPG Investors II, L.P. (1) 560,682
TPG 1999 Equity Partners II, L.P. (1) 6,056
Total 9,274,314
=========
- ---------------
(1) The address for such Selling Stockholder is 301 Commerce Street, Suite 3300,
Fort Worth, Texas 76102, Attn: Richard A. Ekleberry (Fax: (817) 871-4088).
Schedule 2-1