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EXHIBIT 1.1
12,915,000 Shares
VISION ENERGY, INC.
Common Stock
UNDERWRITING AGREEMENT
___________ ____, 2000
CIBC World Markets Corp.
A.G. Edwards & Sons, Inc.
Southcoast Capital L.L.C.
c/o CIBC World Markets Corp.
One World Financial Center
New York, New York 10281
On behalf of the Several
Underwriters named on
Schedule I attached hereto.
Ladies and Gentlemen:
Vision Holdings LLC, a Delaware limited liability company (the
"Selling Stockholder") and wholly owned subsidiary of Seitel, Inc., a Delaware
corporation (the "Parent"), proposes, subject to the terms and conditions
contained herein, to sell to you and the other underwriters named on Schedule I
to this Agreement (the "Underwriters"), for whom you are acting as
Representatives (the "Representatives"), an aggregate of 12,915,000 shares (the
"Firm Shares") of the Common Stock, par value $0.01 per share (the "Common
Stock"), of Vision Energy, Inc., a Delaware corporation (the "Company"). The
respective amounts of the Firm Shares to be purchased by each of the several
Underwriters are set forth opposite their names on Schedule I hereto. In
addition, the Company and the Selling Stockholder propose to grant to the
Underwriters an option to purchase up to an additional 1,937,000 shares (the
"Option Shares") of Common Stock (of which up to 1,137,000 shares will be sold
by the Company and up to 800,000 shares will be sold by the Selling Stockholder)
for the purpose of covering over-allotments in connection with the sale of the
Firm Shares. The Firm Shares and the Option Shares are together called the
"Shares."
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1. Sale and Purchase of the Shares. On the basis of the
representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Selling Stockholder agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Selling Stockholder, at a price of $_____
per share (the "Initial Price"), the number of Firm Shares set forth
opposite the name of such Underwriter under the column "Number of Firm
Shares to Be Purchased" on Schedule I to this Agreement, subject to
adjustment in accordance with Section 10 hereof.
(b) The Company and the Selling Stockholder grant to the
several Underwriters an option to purchase, severally and not jointly,
all or any part of the Option Shares at the Initial Price. The
respective number of Option Shares to be purchased from the Company and
from the Selling Stockholder pursuant to the exercise of such option
shall be equal to the total number of Option Shares to be purchased by
the Underwriters multiplied by a fraction (adjusted by the
Representatives to eliminate fractional shares) (x) the numerator of
which is 1,137 (with respect to the Company) or 800 (with respect to
the Selling Stockholder), as the case may be, and (y) the denominator
of which is 1,937. The number of Option Shares to be purchased by each
Underwriter shall be the same percentage (adjusted by the
Representatives to eliminate fractional shares) of the total number of
Option Shares to be purchased by the Underwriters as such Underwriter
is purchasing of the Firm Shares. Such option may be exercised only to
cover over-allotments in the sales of the Firm Shares by the
Underwriters and may be exercised in whole or in part at any time on or
before 12:00 noon, New York City time, on the business day before the
Firm Shares Closing Date (as defined below), and from time to time
thereafter within 30 days after the date of this Agreement, in each
case upon written, facsimile or telegraphic notice, or verbal or
telephonic notice confirmed by written, facsimile or telegraphic
notice, by the Representatives to the Company no later than 12:00 noon,
New York City time, on the business day before the Firm Shares Closing
Date or at least two business days before the Option Shares Closing
Date (as defined below), as the case may be, setting forth the
aggregate number of Option Shares to be purchased, the respective
number of Option Shares to be purchased from the Company and from the
Selling Stockholder, and the time and date (if other than the Firm
Shares Closing Date) of such purchase.
2. Delivery and Payment. Delivery by the Selling Stockholder
of the Firm Shares to the Representatives for the respective accounts of the
Underwriters, and payment of the purchase price in immediately available funds
by wire transfer to the order of the Selling Stockholder for the Firm Shares,
against delivery of the respective certificates therefor to the Representatives,
shall take place at the offices of Baker Botts L.L.P., 910 Louisiana Street,
3000 One Shell Plaza, Houston, Texas 77002, at 9:00 a.m., New York City time, on
the third business day following the date of this Agreement, or at such time on
such other date, not later than 10 business days after the date of this
Agreement, as shall be agreed upon by the Company and the Representatives (such
time and date of delivery and payment are called the "Firm Shares Closing
Date").
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In the event the option with respect to the Option Shares is
exercised in whole or in part on one or more occasions, delivery by the Company
and the Selling Stockholder of the Option Shares to the Representatives for the
respective accounts of the Underwriters and payment of the purchase price
thereof in immediately available funds by wire transfer to the Company and the
Selling Stockholder, as applicable, shall take place at the offices of Baker
Botts L.L.P. specified above at the time and on the date (which may be the same
date as, but in no event shall be earlier than, the Firm Shares Closing Date)
specified in the notice referred to in Section 1(b) (such time and date of
delivery and payment are called the "Option Shares Closing Date"). The Firm
Shares Closing Date and the Option Shares Closing Date are called, individually,
a "Closing Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such
names and shall be in such denominations as the Representatives shall request at
least two full business days before the Firm Shares Closing Date or, in the case
of Option Shares, on the day of notice of exercise of the option as described in
Section l(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, on the full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
3. Registration Statement and Prospectus; Public Offering. The
Company has prepared and filed in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the published
rules and regulations thereunder (the "Rules") adopted by the Securities and
Exchange Commission (the "Commission"), a Registration Statement (as hereinafter
defined) on Form S-1 (No. 333-90869), including a preliminary prospectus
relating to the Shares, and such amendments thereof as may have been required to
the date of this Agreement. Copies of such Registration Statement (including all
amendments thereof) and of the related Preliminary Prospectus (as hereinafter
defined) have heretofore been delivered by the Company to you. The term
"Preliminary Prospectus" means any preliminary prospectus (as described in Rule
430 of the Rules) included at any time as a part of the Registration Statement
or filed with the Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) of the Rules. The term "Registration
Statement" as used in this Agreement means the initial registration statement
(including all exhibits, financial schedules and information deemed to be a part
of the Registration Statement through incorporation by reference or otherwise),
as amended at the time and on the date it becomes effective (the "Effective
Date"), including the information (if any) deemed to be part thereof at the time
of effectiveness pursuant to Rule 430A of the Rules. If the Company has filed or
will file an abbreviated registration statement to register additional Shares
pursuant to Rule 462(b) under the Rules (the "462(b) Registration Statement"),
then any reference herein to the Registration Statement shall also be deemed to
include such 462(b) Registration Statement. The term "Prospectus" as used in
this Agreement means the prospectus in the form included in the Registration
Statement at the time of effectiveness or, if Rule 430A of the Rules is relied
on, the term Prospectus shall also include the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules.
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The Company and the Selling Stockholder understand that the
Underwriters propose to make a public offering of the Shares, as set forth in
and pursuant to the Prospectus, as soon after the Effective Date and the date of
this Agreement as the Representatives deem advisable. The Company and the
Selling Stockholder hereby confirm that the Underwriters and dealers have been
authorized to distribute or cause to be distributed each Preliminary Prospectus
and are authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company furnishes amendments or supplements thereto to the
Underwriters).
4. Representations and Warranties. The Company, the Parent and
the Selling Stockholder hereby, jointly and severally, represent and warrant to
each Underwriter as follows:
(a) On the Effective Date, the Registration Statement
complied, and on the date of the Prospectus, the date any
post-effective amendment to the Registration Statement becomes
effective, the date any supplement or amendment to the Prospectus is
filed with the Commission and each Closing Date, the Registration
Statement and the Prospectus (and any amendment thereof or supplement
thereto) will comply, in all material respects, with the applicable
provisions of the Securities Act and the Rules and the Securities
Exchange Act of 1934, as amended, and the published rules and
regulations adopted by the Commission thereunder (collectively, the
"Exchange Act"). The Registration Statement did not, as of the
Effective Date, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; and on the
Effective Date and the other dates referred to above, neither the
Registration Statement nor the Prospectus, nor any amendment thereof or
supplement thereto, will contain any untrue statement of a material
fact or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading. When any related preliminary prospectus was first filed
with the Commission (whether filed as part of the Registration
Statement or any amendment thereto or pursuant to Rule 424(a) of the
Rules) and when any amendment thereof or supplement thereto was first
filed with the Commission, such preliminary prospectus as amended or
supplemented complied in all material respects with the applicable
provisions of the Securities Act and the Rules and did not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading. Notwithstanding the foregoing, none
of the representations and warranties in this paragraph 4(a) shall
apply to statements in, or omissions from, the Registration Statement
or the Prospectus made in reliance upon, and in conformity with,
information herein or otherwise furnished in writing by the
Representatives on behalf of the several Underwriters for use in the
Registration Statement or the Prospectus. The Company acknowledges that
the only information furnished in writing by the Representatives on
behalf of the several Underwriters for use in the Registration
Statement or the Prospectus is (i) the second, third and fourth
sentences in the fourth paragraph under the caption "Underwriting" in
the Prospectus and (ii) the 10th and 12th paragraphs under such
caption.
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(b) The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the
effectiveness of the Registration Statement or suspending or preventing
the use of the Prospectus has been issued and no proceedings for that
purpose have been instituted or are pending or, to the Company's or the
Parent's knowledge, threatened under the Securities Act. Any required
filing of the Prospectus and any supplement thereto pursuant to Rule
424(b) of the Rules has been or will be made in the manner and within
the time period required by such Rule 424(b). If the Company has
elected to rely on Rule 462(b) of the Rules and the 462(b) Registration
Statement has not been declared effective, (i) the Company has filed a
462(b) Registration Statement in compliance with and that is effective
upon filing pursuant to Rule 462(b) and has received confirmation of
its receipt and (ii) the Company has given irrevocable instructions for
transmission of the applicable filing fee in connection with the filing
of the 462(b) Registration Statement, in compliance with Rule 111 of
the Rules, or the Commission has received payment of such filing fee.
(c) The financial statements of the Company and DDD Energy
(including all notes and schedules thereto) included in the
Registration Statement and Prospectus present fairly the financial
position, the results of operations, the statements of cash flows and
the statements of stockholders' equity and the other information
purported to be shown therein of the Company and DDD Energy at the
respective dates and for the respective periods to which they apply;
and such financial statements and related schedules and notes have been
prepared in conformity with generally accepted accounting principles
consistently applied throughout the periods involved, and all
adjustments necessary for a fair presentation of the results for such
periods have been made. The summary and selected financial data
included in the Prospectus present fairly the information shown therein
as at the respective dates and for the respective periods specified,
and the summary and selected financial data have been presented on a
basis consistent with the financial statements so set forth in the
Prospectus and other financial information. The pro forma financial
statements set forth in the Registration Statement and the Prospectus
(the "pro forma financial statements") have been prepared in accordance
with the applicable accounting requirements of Rule 11-02 of Regulation
S-X; the pro forma adjustments reflected in the pro forma financial
statements have been properly applied to the historical amounts in the
compilation of such statements; and the assumptions used in the
preparation of the pro forma financial statements are, in the opinion
of the Company, reasonable.
(d) Arthur Andersen LLP, whose report is filed with the
Commission as a part of the Registration Statement, is and, during the
periods covered by such report, was independent public accountants as
required by the Securities Act and the Rules.
(e) The information on the basis of which the reserve
estimates and related information included in the Registration
Statement and the Prospectus was prepared by the Company, Forrest A.
Garb & Associates, Inc., independent natural gas and oil engineers,
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Miller & Lentz, Ltd., independent natural gas and oil engineers, or any
other person, is true and correct in all material respects.
(f) Each of the Company, the Parent and the Selling
Stockholder is a corporation or limited liability company, as the case
may be, duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization. The Company
has no subsidiaries and does not control, directly or indirectly, any
corporation, limited liability company, partnership, joint venture,
association or other business organization. Immediately prior to the
closing on the Firm Shares Closing Date, DDD Energy, Inc. ("DDD
Energy") will be a wholly owned subsidiary of the Company and will be
duly incorporated, validly existing and in good standing under the laws
of the State of Delaware. Each of the Company and DDD Energy is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the nature of the business
conducted by it or the location of the assets or properties owned,
leased or licensed by it requires such qualification, except for such
jurisdictions where the failure to so qualify, individually or in the
aggregate, would not have a material adverse effect on the assets or
properties, business, results of operations or financial condition of
the Company and DDD Energy, taken as a whole (a "Material Adverse
Effect"). Neither the Company nor DDD Energy owns, leases or licenses
any asset or property or conducts any business outside the United
States of America. Each of the Company and DDD Energy has all requisite
corporate power and authority, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and
from all governmental or regulatory bodies or any other person or
entity (collectively, the "Permits"), to own, lease and license its
assets and properties and conduct its business, all of which are valid
and in full force and effect, as described in the Registration
Statement and the Prospectus, except where the lack of such Permits,
individually or in the aggregate, would not have a Material Adverse
Effect. Each of the Company and DDD Energy has fulfilled and performed
all of its obligations with respect to such Permits, and no event has
occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other impairment of
the rights of the Company or DDD Energy thereunder, except where such
failure to fulfill or perform or such revocation, termination or
impairment would not have a Material Adverse Effect. Except as may be
required under the Securities Act and state securities or Blue Sky
laws, no other Permits are required to enter into, deliver and perform
this Agreement and to issue and sell the Shares.
(g) Each of the Company and DDD Energy owns or possesses
adequate and enforceable rights to use all trademarks, trademark
applications, trade names, service marks, copyrights, copyright
applications, licenses, know-how and other similar rights and
proprietary knowledge (collectively, "Intangibles") described in the
Prospectus as being owned by it necessary for the conduct of its
business. Neither the Company nor DDD Energy has received any notice
of, nor is aware of, any infringement of or conflict with asserted
rights of others with respect to any Intangibles.
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(h) Except as described in the Prospectus, each of the Company
and DDD Energy has (i) good and indefeasible title to all its interests
in its natural gas and oil properties, and title investigations have
been carried out by or on behalf of the Company or DDD Energy in
accordance with good practice in the natural gas and oil industry in
the areas in which the Company or DDD Energy operates, and (ii) good
and indefeasible title to all other real property and marketable title
to all other material properties and assets described in the Prospectus
as owned by the Company or DDD Energy and valid, subsisting and
enforceable leases for all properties and assets, real or personal,
described in the Prospectus as leased by the Company or DDD Energy, in
each case free and clear of any imperfections of title, security
interests, mortgages, pledges liens encumbrances or charges of any
kind, other than those described in the Prospectus and those that would
not, individually or in the aggregate, have a Material Adverse Effect.
(i) There is no litigation or governmental or other proceeding
to which the Company, DDD Energy, the Parent or the Selling Stockholder
is subject or which is pending or, to their knowledge, threatened,
against the Company, DDD Energy, the Parent or the Selling Stockholder,
which, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect, affect the consummation of this
Agreement or which is required to be disclosed in the Registration
Statement and the Prospectus that is not so disclosed.
(j) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
described therein, (a) there has not been any material adverse change
with regard to the assets or properties, business, results of
operations or financial condition of the Company or DDD Energy; (b)
neither the Company nor DDD Energy has sustained any loss or
interference with its assets, businesses or properties (whether owned
or leased) from fire, explosion, earthquake, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or any
court or legislative or other governmental action, order or decree,
which would have a Material Adverse Effect; and (c) since the date of
the latest balance sheet included in the Registration Statement and the
Prospectus, except as reflected therein, neither the Company nor DDD
Energy has (i) issued any securities or incurred any liability or
obligation, direct or contingent, for borrowed money, except such
liabilities or obligations incurred in the ordinary course of business,
(ii) entered into any transaction not in the ordinary course of
business or (iii) declared or paid any dividend or made any
distribution on any shares of its stock or redeemed, purchased or
otherwise acquired or agreed to redeem, purchase or otherwise acquire
any shares of its stock, other than the 81 shares of Common Stock to be
repurchased from Horace A. Calvert on the Firm Shares Closing Date.
(k) There is no document, contract or other agreement of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required by the Securities Act or
Rules. Each description of a contract, document or other agreement in
the Registration
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Statement and the Prospectus accurately reflects in all respects the
material terms of the underlying document, contract or agreement. Each
agreement described in the Registration Statement and the Prospectus or
listed in the Exhibits to the Registration Statement is, or will be as
of the Firm Shares Closing Date, in full force and effect and is, or
will be as of the Firm Shares Closing Date, valid and enforceable by
and against the Company, DDD Energy, the Parent and the Selling
Stockholder, as the case may be, in accordance with its terms. Neither
the Company, DDD Energy, the Parent, the Selling Stockholder nor, to
their knowledge, any other party is in default in the observance or
performance of any term or obligation to be performed by it under any
such agreement, and no event has occurred which with notice or lapse of
time or both would constitute such a default, in any such case which
default or event, individually or in the aggregate, would have a
Material Adverse Effect. No default exists, and no event has occurred
which with notice or lapse of time or both would constitute a default,
in the due performance and observance of any term, covenant or
condition by the Company or DDD Energy of any other agreement or
instrument to which the Company or DDD Energy is a party or by which
either of them or their respective assets, properties or business may
be bound or affected which default or event, individually or in the
aggregate, would have a Material Adverse Effect.
(l) Neither the Company nor DDD Energy is in violation of any
term or provision of its charter or by-laws or of any franchise,
license, Permit, judgment, decree, order, statute, rule or regulation,
where the consequences of such violation, individually or in the
aggregate, would have a Material Adverse Effect.
(m) Neither the execution, delivery and performance of this
Agreement by the Company, the Parent or the Selling Stockholder nor the
consummation of any of the transactions contemplated hereby (including,
without limitation, the issuance and sale by the Company and the
Selling Stockholder of the Shares) will give rise to a right to
terminate or accelerate the due date of any payment due under, or
conflict with, violate or result in the breach of any term or provision
of, or constitute a default (or an event which with notice or lapse of
time or both would constitute a default) under, or require any consent
or waiver under, or result in the execution or imposition of any lien,
charge, claim, security interest or encumbrance upon any properties or
assets of the Company, DDD Energy or the Selling Stockholder pursuant
to the terms of, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company, DDD Energy, the Parent or
the Selling Stockholder is a party or by which any of them or any of
their respective properties or businesses is bound, or any franchise,
license, Permit, judgment, decree, order, statute, rule or regulation
applicable to the Company, DDD Energy, the Parent or the Selling
Stockholder or violate any provision of the charter, by-laws or other
governing instruments of the Company, DDD Energy or the Selling
Stockholder, except for such consents or waivers which have already
been obtained and are in full force and effect.
(n) The Company has authorized and outstanding capital stock
as set forth in the Registration Statement and the Prospectus under the
caption "Capitalization." The
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certificates evidencing the Shares are in due and proper legal form and
have been duly authorized for issuance by the Company. All of the
issued and outstanding shares of Common Stock have been duly authorized
and validly issued and are fully paid and nonassessable, and none of
them was issued in violation of any preemptive or other similar right.
The Shares, when sold by the Selling Stockholder and when issued and
sold by the Company pursuant to this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable, and none of
them will be issued in violation of any preemptive or other similar
right. Except as disclosed in the Registration Statement and the
Prospectus, there are no preemptive or other rights to subscribe for or
to purchase or acquire or any restriction upon the voting or transfer
of any securities of the Company pursuant to its Certificate of
Incorporation or by-laws or any agreement or instrument to or by which
the Company is a party or bound. Except as disclosed in the
Registration Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and no
commitment, plan or arrangement to issue, any share of stock of the
Company or any security convertible into, exercisable for or
exchangeable for stock of the Company. The Common Stock and the Shares
conform in all material respects to all statements in relation thereto
contained in the Registration Statement and the Prospectus.
(o) The Selling Stockholder will have on each Closing Date
valid and marketable title to the Shares to be sold by the Selling
Stockholder free and clear of any lien, claim, security interest or
other encumbrance, including, without limitation, any restriction on
transfer, except as otherwise described in the Registration Statement
and Prospectus. The Selling Stockholder will have on each Closing Date
full legal right, power and authorization, and any approval required by
law, to sell, assign, transfer and deliver the Shares to be sold by the
Selling Stockholder in the manner provided by this Agreement. Upon
delivery of and payment for the Shares to be sold by the Selling
Stockholder pursuant to this Agreement, the several Underwriters will
receive valid and marketable title to such Shares free and clear of any
lien, claim, security interest or other encumbrance.
(p) Except with respect to the Shares to be sold by the
Selling Stockholder, no holder of any security of the Company has the
right to have any security owned by such holder included in the
Registration Statement or to demand registration of any security owned
by such holder during the period ending 180 days after the date of this
Agreement. Each stockholder, director (including nominees) and
executive officer of the Company has delivered to the Representatives
his enforceable written lock-up agreement in the form attached to this
Agreement ("Lock-Up Agreement").
(q) All necessary corporate action has been duly and validly
taken by the Company, the Parent and the Selling Stockholder to
authorize the execution, delivery and performance of this Agreement and
the issuance and sale of the Shares by the Company and the Selling
Stockholder. This Agreement has been duly and validly authorized,
executed and delivered by the Company, the Parent and the Selling
Stockholder and constitutes the legal, valid and binding obligation of
the Company, the Parent and the Selling Stockholder
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enforceable against the Company, the Parent and the Selling Stockholder
in accordance with its terms, except as the enforceability thereof may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles. The
Lock-Up Agreement to which the Selling Stockholder is a party has been
duly and validly authorized, executed and delivered by the Selling
Stockholder and constitutes the legal, valid and binding obligation of
the Selling Stockholder, enforceable against the Selling Stockholder in
accordance with its terms, except as the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(r) Neither the Company nor DDD Energy is involved in any
labor dispute nor, to the knowledge of the Company or the Parent, is
any such dispute threatened, which dispute would have a Material
Adverse Effect. Neither the Company nor the Parent is aware of any
existing or imminent labor disturbance by the employees of any of the
principal suppliers or contractors of the Company or DDD Energy which
would have a Material Adverse Effect. The Company is not aware of any
threatened or pending litigation between the Company and any of its
executive officers which, if adversely determined, could have a
Material Adverse Effect and has no reason to believe that such officers
will not remain in the employment of the Company.
(s) No transaction has occurred between or among the Company
and any of its officers or directors or five percent stockholders or
any affiliate or affiliates of any such officer or director or five
percent stockholder that is required to be described in and is not
described in the Registration Statement and the Prospectus.
(t) Neither the Company, the Parent nor the Selling
Stockholder has taken, nor will it take, directly or indirectly, any
action designed to or which might reasonably be expected to cause or
result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of any
of the Shares.
(u) Each of the Company and DDD Energy has filed all Federal,
state and local tax returns which are required to be filed through the
date hereof, or has received extensions thereof, and has paid all taxes
shown on such returns and all assessments received by it to the extent
that the same are material and have become due. There are no tax audits
or investigations pending that if adversely determined would have a
Material Adverse Effect, nor are there any material proposed additional
tax assessments against the Company or DDD Energy.
(v) The Shares have been duly authorized for quotation on the
National Association of Securities Dealers Automated Quotation
("Nasdaq") National Market System, subject to official notice of
issuance. A registration statement has been filed on Form 8-A
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pursuant to Section 12 of the Exchange Act, which registration
statement complies in all material respects with the Exchange Act.
(w) Each of the Company and DDD Energy has complied with all
of the requirements and filed the required forms, if any, as specified
in Florida Statutes Section 517.075.
(x) The books, records and accounts of each of the Company and
DDD Energy accurately and fairly reflect, in reasonable detail, the
transactions in, and dispositions of, the assets of, and the results of
operations of, the Company or DDD Energy, as the case may be. Each of
the Company and DDD Energy maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in accordance with generally
accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(y) Each of the Company and DDD Energy is insured by insurers
of recognized financial responsibility against such losses and risks
and in such amounts as it believes are customary in the businesses in
which it is engaged or proposes to engage after giving effect to the
transactions described in the Prospectus; all policies of insurance and
fidelity or surety bonds insuring the Company, DDD Energy or their
respective businesses, assets, employees, officers and directors are in
full force and effect; each of the Company and DDD Energy is in
compliance with the terms of such policies and instruments in all
material respects; and neither the Company nor the Parent has reason to
believe that the Company or DDD Energy will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect. Neither the Company nor DDD Energy has been denied any
insurance coverage which it has sought or for which it has applied.
(z) Each approval, consent, order, authorization, designation,
declaration or filing of, by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and
delivery by the Company, the Parent or the Selling Stockholder of this
Agreement and the consummation of the transactions herein contemplated
required to be obtained or performed by the Company, the Parent or the
Selling Stockholder (except such additional steps as may be required by
the National Association of Securities Dealers, Inc. (the "NASD") or
may be necessary to qualify the Shares for public offering by the
Underwriters under state securities or Blue Sky laws) has been obtained
or made and is in full force and effect.
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(aa) There are no affiliations with the NASD among the
Company's officers or directors or any five percent or greater
stockholder of the Company, or any affiliate thereof, except as set
forth in the Registration Statement or otherwise disclosed in writing
to the Representatives.
(bb) (i) Each of the Company and DDD Energy is in compliance
with all rules, laws and regulations relating to the use, treatment,
storage and disposal of toxic substances and protection of health or
the environment ("Environmental Law") which are applicable to its
business, except for any noncompliance that, individually or in the
aggregate, would not have a Material Adverse Effect; (ii) neither the
Company nor DDD Energy has received any notice from any governmental
authority or third party of an asserted claim under Environmental Laws;
(iii) each of the Company and DDD Energy has received all permits,
licenses or other approvals required of it under applicable
Environmental Laws to conduct its business and is in compliance with
all terms and conditions of any such permit, license or approval,
except for any failure to obtain such licenses, permits or other
approvals or any noncompliance with the terms thereof that,
individually or in the aggregate, would not have a Material Adverse
Effect; (iv) to the Company's knowledge, no facts currently exist that
will require the Company to make future material capital expenditures
to comply with Environmental Laws; and (v) no property which is or has
been owned, leased or occupied by the Company or DDD Energy has been
designated as a Superfund site pursuant to the Comprehensive
Environmental Response, Compensation of Liability Act of 1980, as
amended ("CERCLA"), or otherwise designated as a contaminated site
under applicable state or local law. Neither the Company nor DDD Energy
has been named as a "potentially responsible party" under CERCLA.
(cc) To the best knowledge of the Company and DDD Energy, the
operators of their mineral properties periodically review, in the
ordinary course of their business, the effect of Environmental Laws on
their respective businesses, operations and properties, in the course
of which such operators identify and evaluate associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any
related constraints on operating activities and any potential
liabilities to third parties). Neither the Company nor DDD Energy has
received any notification from such operators with respect to or is
otherwise aware of any such associated costs and liabilities that
would, individually or in the aggregate, have a Material Adverse
Effect.
(dd) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of proceeds thereof
as described in the Prospectus, will not be an "investment company" or
an entity controlled by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
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(ee) The Company, DDD Energy or any other person associated
with or acting on behalf of the Company or DDD Energy, including,
without limitation, any director, officer, agent or employee of the
Company or DDD Energy, has not, directly or indirectly, while acting on
behalf of the Company or DDD Energy (i) used any corporate funds for
unlawful contributions, gifts, entertainment or other unlawful expenses
relating to political activity; (ii) made any unlawful payment to
foreign or domestic government officials or employees or to foreign or
domestic political parties or campaigns from corporate funds; (iii)
violated any provision of the Foreign Corrupt Practices Act of 1977, as
amended; or (iv) made any other unlawful payment.
(ff) Each of the Company and DDD Energy has reviewed its
operations to evaluate the extent to which its business or operations
have been affected by the Year 2000 Problem (that is, any significant
risk that computer hardware or software applications do not, in the
case of dates or time periods occurring after December 31, 1999,
function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000); as a result of such
review, each of the Company and the Parent has no reason to believe,
and does not believe, that the Year 2000 Problem has had or will have a
Material Adverse Effect, or has resulted or will result in any material
loss or interference with the business or operations of the Company or
DDD Energy.
5. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters under this Agreement are several and not joint.
The respective obligations of the Underwriters to purchase the Shares are
subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become
effective shall have been received by the Representatives, and the
Prospectus shall have been timely filed with the Commission in
accordance with Section 6(a) of this Agreement.
(b) No order preventing or suspending the use of any
preliminary prospectus or the Prospectus shall have been or shall be in
effect and no order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall
be pending before or threatened by the Commission, and any requests for
additional information on the part of the Commission (to be included in
the Registration Statement or the Prospectus or otherwise) shall have
been complied with to the satisfaction of the Commission and the
Representatives.
(c) The representations and warranties of the Company, the
Parent and the Selling Stockholder contained in this Agreement and in
the certificates delivered pursuant to Sections 5(d) and 5(e) shall be
true and correct when made and on and as of each Closing Date as if
made on such date. The Company, the Parent and the Selling Stockholder
shall have performed all covenants and agreements and satisfied all the
conditions contained in this Agreement required to be performed or
satisfied by them at or before such Closing Date.
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(d) The Representatives shall have received on each Closing
Date a certificate, addressed to the Representatives and dated such
Closing Date, of the chief executive or chief operating officer and the
chief financial or chief accounting officer of the Company to the
effect that (i) the signers of such certificate have carefully examined
the Registration Statement, the Prospectus and this Agreement, (ii) the
representations and warranties of the Company in this Agreement are
true and correct on and as of such Closing Date with the same effect as
if made on such Closing Date, (iii) the Company has performed all
covenants and agreements and satisfied all conditions contained in this
Agreement required to be performed or satisfied by it at or prior to
such Closing Date, and (iv) no stop order preventing or suspending the
effectiveness of the Registration Statement has been issued and, to the
best of their knowledge, no proceedings for that purpose have been
instituted or are pending or threatened under the Securities Act.
(e) The Representatives shall have received on each Closing
Date a certificate, addressed to the Representatives and dated such
Closing Date, of each of the Selling Stockholder and the Parent, to the
effect that (i) the Selling Stockholder or the Parent, as the case may
be, has carefully examined the Registration Statement, the Prospectus
and this Agreement, (ii) the representations and warranties of the
Selling Stockholder or the Parent, as the case may be, in this
Agreement are true and correct on and as of such Closing Date with the
same effect as if made on such Closing Date and (iii) the Selling
Stockholder or the Parent, as the case may be, has performed all
covenants and agreements and satisfied all conditions contained in this
Agreement required to be performed or satisfied by it at or prior to
such Closing Date.
(f) The Representatives shall have received, at the time this
Agreement is executed and on each Closing Date, a signed letter from
Arthur Andersen LLP addressed to the Representatives and dated the date
of this Agreement and each such Closing Date, respectively, in form and
substance reasonably satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the
Securities Act and the Rules, that the response to Item 10 of the
Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included in the Registration
Statement and the Prospectus and reported on by them comply as
to form in all material respects with the applicable
accounting requirements of the Securities Act and the Rules;
(ii) on the basis of a reading of the amounts
included in the Registration Statement and the Prospectus
under the headings "Summary Historical and Pro Forma Financial
Information" and "Selected Financial Data," carrying out
certain procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter, a reading of the minutes of
the meetings of
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the stockholders and directors of the Company and DDD Energy,
and inquiries of certain officials of the Company and DDD
Energy who have responsibility for financial and accounting
matters of the Company and DDD Energy as to transactions and
events subsequent to the date of the latest audited financial
statements, except as disclosed in the Registration Statement
and the Prospectus, nothing came to their attention which
caused them to believe that:
(A) the amounts in "Summary Historical and
Pro Forma Financial Information" and "Selected
Financial Data" included in the Registration
Statement and the Prospectus do not agree with the
corresponding amounts in the audited and unaudited
financial statements from which such amounts were
derived;
(B) with respect to the Company, there were,
at a specified date not more than three business days
prior to the date of the letter, any increases in the
liabilities of the Company or any decreases in the
stockholders' equity in the Company, as compared with
the amounts shown on the Company's balance sheet as
of November 8, 1999 included in the Registration
Statement;
(C) with respect to DDD Energy, there were,
at a specified date not more than three business days
prior to the date of the letter, any increases in the
current liabilities and long-term liabilities of DDD
Energy or any decreases in working capital or the
stockholders' equity in DDD Energy, as compared with
the amounts shown on DDD Energy's balance sheet as of
the nine months ended September 30, 1999 included in
the Registration Statement or, during the period from
September 30, 1999 to a specified date not more than
three business days prior to the date of the letter,
there were any decreases, as compared to the
corresponding period in the previous year, in revenue
or net income of DDD Energy;
(iii) they have performed certain other procedures as
may be permitted under generally acceptable auditing standards
as a result of which they determined that certain information
of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information
derived from the general accounting records of the Company and
DDD Energy) set forth in the Registration Statement and the
Prospectus and reasonably specified by the Representatives
agrees with the accounting records of the Company and DDD
Energy; and
(iv) based upon the procedures set forth in clauses
(ii) and (iii) above and a reading of the amounts included in
the Registration Statement under the headings "Summary
Historical and Pro Forma Financial Information" and "Selected
Financial Data" included in the Registration Statement and
Prospectus and a reading of the financial statements from
which certain of such data were derived, nothing has come
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to their attention that gives them reason to believe that the
"Summary Historical and Pro Forma Financial Information" and
"Selected Financial Data" included in the Registration
Statement and Prospectus do not comply as to the form in all
material respects with the applicable accounting requirements
of the Securities Act and the Rules or that the information
set forth therein is not fairly stated in relation to the
financial statements included in the Registration Statement or
Prospectus from which certain of such data were derived are
not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with
that of the audited financial statements included in the
Registration Statement and Prospectus.
References to the Registration Statement and the Prospectus in
this paragraph (f) are to such documents as amended and supplemented at
the date of the letter.
(g) The Representatives shall have received on each Closing
Date from Gardere Wynne Sewell & Riggs, L.L.P., counsel for the
Company, the Parent and the Selling Stockholder, an opinion, addressed
to the Representatives and dated such Closing Date, and stating in
effect that:
(i) Each of the Company, DDD Energy and the Parent is
duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation. The Selling
Stockholder is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization.
To the best of such counsel's knowledge, the Company has no
subsidiaries other than DDD Energy and does not control,
directly or indirectly, any corporation, limited liability
company, partnership, joint venture, association or other
business organization other than DDD Energy. Each of the
Company and DDD Energy is duly qualified to do business and is
in good standing as a foreign corporation in the State of
Texas and, to such counsel's knowledge, in each other
jurisdiction in which the nature of the business conducted by
it or the location of the assets or properties owned, leased
or licensed by it requires such qualification, except for such
jurisdictions where the failure to so qualify, individually or
in the aggregate, would not have a Material Adverse Effect.
(ii) Each of the Company and DDD Energy has all
requisite corporate power and authority to own, lease and
license its assets and properties and conduct its business as
described in the Registration Statement and the Prospectus
and, with respect to the Company, to enter into, deliver and
perform this Agreement and to issue and sell the Shares to be
sold by it.
(iii) The Company has authorized and outstanding
capital stock as set forth in the Registration Statement and
the Prospectus under the caption "Capitalization." The
certificates evidencing the Shares are in due and proper legal
form and have been duly authorized for issuance by the
Company. All of the issued and outstanding shares of Common
Stock have been duly authorized and validly issued and are
fully
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paid and nonassessable, and, to the best knowledge of such
counsel, none of them were issued in violation of any
preemptive or similar contractual right of any stockholder of
the Company by reason of any agreement to which the Company is
a party. The Shares, when sold by the Selling Stockholder and
when issued and sold by the Company and paid for by the
Underwriters pursuant to this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable, and,
to the best knowledge of such counsel, none of them will have
been issued in violation of any preemptive or similar
contractual right of any stockholder of the Company by reason
of any agreement to which the Company is a party. To the best
of such counsel's knowledge, except as disclosed in the
Registration Statement and the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase or
acquire or any restriction upon the voting or transfer of any
securities of the Company pursuant to the Company's
Certificate of Incorporation or by-laws or any agreement or
other instrument to which the Company is a party or by which
it is bound. To the best of such counsel's knowledge, except
as disclosed in the Registration Statement and the Prospectus,
there is no outstanding option, warrant or other right calling
for the issuance of, and no commitment, plan or arrangement to
issue, any share of stock of the Company or any security
convertible into, exercisable for, or exchangeable for stock
of the Company.
(iv) The execution and delivery of this Agreement
have been duly authorized by all necessary corporate action on
the part of the Company, the Parent and the Selling
Stockholder. This Agreement has been duly and validly
authorized, executed and delivered by the Company, the Parent
and the Selling Stockholder.
(v) The execution, delivery and performance by the
Company, the Parent and the Selling Stockholder of this
Agreement and the sale by the Selling Stockholder, and the
issuance and sale by the Company, of the Shares will not (i)
violate the Company's, the Parent's, DDD Energy's or the
Selling Stockholder's charter or bylaws, (ii) conflict with,
constitute a breach of any of the terms or provisions of, or a
default under, or require consent or waiver under, any
indenture, loan agreement, mortgage, lease or other agreement
or instrument of which such counsel has knowledge and to which
the Company, the Parent, DDD Energy or the Selling Stockholder
is a party or by which they or their respective property is
bound, or (iii) violate or conflict with any applicable law or
any rule or regulation, or to such counsel's knowledge, any
judgment, order or decree, in each case of any court or any
governmental body or agency having jurisdiction over the
Company, the Parent, DDD Energy or the Selling Stockholder or
their respective property.
(vi) All of the Selling Stockholder's rights in the
Shares to be sold by the Selling Stockholder pursuant to this
Agreement have been transferred to the Underwriters who have
severally purchased such Shares pursuant to this Agreement,
free and clear of any lien, claim, security interest or other
encumbrance.
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(vii) No consent, approval, authorization or order of
any court or governmental agency or regulatory body is
required for the execution, delivery or performance of this
Agreement by the Company, the Parent or the Selling
Stockholder or the consummation of the transactions
contemplated hereby, except such as have been obtained under
the Securities Act and such as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the several Underwriters.
(viii) To the best of such counsel's knowledge, there
is no litigation or governmental or other proceeding to which
the Company, DDD Energy, the Parent or the Selling Stockholder
is subject, or which is pending or threatened against, the
Company, DDD Energy, the Parent or the Selling Stockholder,
which affect the consummation of this Agreement or is required
to be disclosed in the Registration Statement and the
Prospectus that is not so disclosed.
(ix) The statements in the Prospectus under the
captions "Management's Discussion and Analysis of Financial
Condition and Results of Operations-Liquidity and Capital
Resources--[Credit Facility]," "Business--Regulation,"
"Management--Employment Agreements," "Management--1999 Stock
Incentive Plan," "Arrangements with Seitel," "Certain
Transactions," "Description of Capital Stock" and "Shares
Eligible for Future Sale," insofar as such statements
constitute a summary of documents referred to therein or
matters of law, are fair summaries of such documents and
matters. To the best of such counsel's knowledge, accurate
copies of all contracts and other documents required to be
filed as exhibits to, or described in, the Registration
Statement have been so filed with the Commission or are fairly
described in the Registration Statement, as the case may be.
(x) The Registration Statement, all preliminary
prospectuses and the Prospectus and each amendment or
supplement thereto (except for the financial statements and
schedules and other financial, statistical and reserve data
included therein, as to which such counsel expresses no
opinion) appeared on its face to comply as to form in all
material respects with the requirements of the Securities Act
and the Rules.
(xi) The Registration Statement is effective under
the Securities Act, and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are threatened or pending
under the Securities Act. Any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424(b)
of the Rules has been made in the manner and within the time
period required by such Rule 424(b).
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(xii) The capital stock of the Company conforms in
all material respects to the description thereof contained in
the Prospectus under the caption "Description of Capital
Stock."
To the extent deemed advisable by such counsel, they may rely
as to matters of fact on certificates of responsible officers of the
Company, the Parent and the Selling Stockholder and public officials
and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the
laws of the States of New York and Texas, the General Corporation Law
of the State of Delaware and the Federal laws of the United States;
provided that such counsel shall state that in their opinion the
Underwriters and they are justified in relying on such other opinions.
Copies of such certificates and other opinions shall be furnished to
the Representatives and counsel for the Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the Representatives and representatives
of the independent certified public accountants of the Company, at
which conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement and the Prospectus (except as specified in
the foregoing opinion), on the basis of the foregoing, no facts have
come to the attention of such counsel which lead such counsel to
believe that the Registration Statement at the time it became effective
(except with respect to the financial statements and notes and
schedules thereto and other financial, statistical and reserve data, as
to which such counsel need express no belief) contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus as amended or
supplemented (except with respect to the financial statements, notes
and schedules thereto and other financial, statistical and reserve
data, as to which such counsel need make no statement) on the date
thereof and on the Closing Date contained any untrue statement of a
material fact or omitted 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.
(h) All proceedings taken in connection with the sale of the
Firm Shares and the Option Shares as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives
and their counsel, and the Underwriters shall have received from Baker
Botts L.L.P. a favorable opinion, addressed to the Representatives and
dated such Closing Date, with respect to the Shares, the Registration
Statement and the Prospectus, and such other related matters, as the
Representatives may reasonably request, and the Company shall have
furnished to Baker Botts L.L.P. such documents as they may request for
the purpose of enabling them to pass upon such matters.
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(i) The Company shall have received on or prior to the Firm
Shares Closing Date from Arthur Andersen LLP an opinion, in form and
substance reasonably satisfactory to the Representatives, stating in
effect that pursuant to the Internal Revenue Code of 1986, as amended,
and the regulations and rules published thereunder, the Company should
have a tax basis in its assets equal to the purchase price paid by the
Company therefor pursuant to the Stock Transfer and Separation
Agreement to be executed and delivered by the Company, the Parent and
the Selling Stockholder as of the Firm Shares Closing Date.
(j) The Representatives shall have received from Forrest A.
Garb & Associates, Inc., independent natural gas and oil engineers, a
letter or letters dated the date of this Agreement and of each Closing
Date, respectively, in form and substance satisfactory to the
Representatives, each stating, as of the date of such letter (or, with
respect to matters involving changes or developments since the
respective dates as of which information regarding the natural gas and
oil reserves and future net cash flows is given in the Prospectus, as
of the date not more than three days prior to the date of such letter),
the conclusions and findings of such firm with respect to the natural
gas and oil reserves of the Company and such other matters as the
Representatives reasonably may request.
(k) If the Shares have been qualified for sale in Florida, the
Representatives shall have received on each Closing Date certificates,
addressed to the Representatives, and dated such Closing Date, of an
executive officer of the Company, to the effect that the signer of such
certificate has reviewed and understands the provisions of Section
517.075 of the Florida Statutes, and represents that the Company has
complied, and at all times will comply, with all provisions of Section
517.075 and further, that as of such Closing Date, neither the Company
nor any of its affiliates does business with the government of Cuba or
with any person or affiliate located in Cuba.
(l) The Representatives shall have received copies of the
Lock-up Agreements executed by each entity or person described in
Section 4(p).
(m) The transactions contemplated to occur before the closing
on the Firm Shares Closing Date pursuant to the Stock Transfer and
Separation Agreement among the Parent, the Selling Stockholder and the
Company (the "Separation Agreement") as described in the Prospectus
under the caption "Arrangements with Seitel" shall have occurred, and
the Sublease, Registration Rights Agreement, Tax Indemnity Agreement,
Employee Benefits Allocation Agreement and Administrative Services
Agreement (each as defined in the Separation Agreement) entered into
pursuant to the Separation Agreement shall be in substantially the
forms included as Exhibits to the Registration Statement and as
described in the Prospectus.
(n) The Company, the Parent and the Selling Stockholder shall
have furnished or caused to be furnished to the Representatives such
further certificates or documents as the Representatives shall have
reasonably requested.
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6. Covenants of the Company. (a) The Company covenants
and agrees as follows:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto, to become effective as
promptly as possible. The Company shall prepare the Prospectus in a
form approved by the Representatives and file such 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.
(ii) The Company shall promptly advise the Representatives in
writing (i) when any amendment to the Registration Statement shall have
become effective, (ii) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any
additional information, (iii) of the prevention or suspension of the
use of any preliminary prospectus or the Prospectus or of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company shall not
file any amendment of the Registration Statement or supplement to the
Prospectus unless the Company has furnished the Representatives a copy
thereof for its review prior to filing and shall not file any such
proposed amendment or supplement to which the Representatives
reasonably object. The Company shall use its best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
(iii) If, at any time when a prospectus relating to the Shares
is required to be delivered under the Securities Act and the Rules, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Securities Act or the Rules, the Company
promptly shall prepare and file with the Commission, subject to the
second sentence of paragraph (ii) of this Section 6(a), an amendment or
supplement which shall correct such statement or omission or an
amendment which shall effect such compliance.
(iv) The Company shall make generally available to its
security holders and to the Representatives as soon as practicable, but
not later than 45 days after the end of the 12-month period beginning
at the end of the fiscal quarter of the Company during which the
Effective Date occurs (or 90 days if such 12-month period coincides
with the Company's fiscal year), an earning statement (which need not
be audited) of the Company, covering such
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12-month period, which shall satisfy the provisions of Section 11(a) of
the Securities Act or Rule 158 of the Rules.
(v) The Company shall furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including all exhibits thereto and amendments
thereof) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and all amendments thereof and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Securities Act or the Rules, as many copies of any
preliminary prospectus and the Prospectus and any amendments thereof
and supplements thereto as the Representatives may reasonably request.
(vi) The Company shall cooperate with the Representatives and
their counsel in endeavoring to qualify the Shares for offer and sale
in connection with the offering under the laws of such jurisdictions as
the Representatives may designate and shall maintain such
qualifications in effect so long as required for the distribution of
the Shares; provided, however, that the Company shall not be required
in connection therewith, as a condition thereof, to qualify as a
foreign corporation or to execute a general consent to service of
process in any jurisdiction or subject itself to taxation as doing
business in any jurisdiction.
(vii) Without the prior written consent of CIBC World Markets
Corp., for a period of 180 days after the date of this Agreement, the
Company and each of its individual directors (including nominees) and
executive officers shall not issue, sell or register with the
Commission (other than on Form S-8 or on any successor form), or
otherwise dispose of, directly or indirectly, any equity securities of
the Company (or any securities convertible into, exercisable for or
exchangeable for equity securities of the Company), except for the
issuance of the Shares pursuant to the Registration Statement, the
issuance by the Company of warrants to purchase shares granted to
executives of the Company (the "Warrants"), and shares upon exercise
thereof, as described in the Registration Statement and the Prospectus
and the issuance of shares pursuant to the Company's 1999 Stock
Incentive Plan (the "Plan") as described in the Registration Statement
and the Prospectus. In the event that during this period, (i) any
shares are issued pursuant to the Warrants or the Plan that are
exercisable during such 180-day period or (ii) any registration is
effected on Form S-8 or on any successor form relating to shares that
are exercisable during such 180-day period, the Company shall obtain
the written agreement of such grantee or purchaser or holder of such
registered securities that, for a period of 180 days after the date of
this Agreement, such person will not, without the prior written consent
of CIBC World Markets Corp., offer for sale, sell, distribute, grant
any option for the sale of, or otherwise dispose of, directly or
indirectly, or exercise any registration rights with respect to, any
shares of Common Stock (or any securities convertible into, exercisable
for or exchangeable for any shares of Common Stock) owned by such
person.
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(viii) On or before completion of this offering, the Company
shall make all filings required under applicable securities laws and by
the Nasdaq National Market (including any required registration under
the Exchange Act).
(ix) The Company shall file timely and accurate reports in
accordance with the provisions of Florida Statutes Section 517.075, or
any successor provision, and any regulation promulgated thereunder, if
at any time after the Effective Date, the Company or any of its
affiliates commences engaging in business with the government of Cuba
or any person or affiliate located in Cuba.
(x) The Company will apply the net proceeds from the offering
of the Shares in the manner set forth under "Use of Proceeds" in the
Prospectus.
(b) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses incident to
the public offering of the Shares and the performance of the obligations of the
Company, the Parent and the Selling Stockholder under this Agreement, including
those relating to: (i) the preparation, printing, filing and distribution of the
Registration Statement, including all exhibits thereto, each preliminary
prospectus, the Prospectus, all amendments and supplements to the Registration
Statement and the Prospectus, and the printing, filing and distribution of this
Agreement; (ii) the preparation and delivery of certificates for the Shares to
the Underwriters; (iii) the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the various
jurisdictions referred to in Section 6(a)(vi), including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
registration and qualification and the preparation, printing, distribution and
shipment of preliminary and supplementary Blue Sky memoranda; (iv) the
furnishing (including costs of shipping and mailing) to the Representatives and
to the Underwriters of copies of each preliminary prospectus, the Prospectus and
all amendments or supplements to the Prospectus, and of the several documents
required by this Section to be so furnished, as may be reasonably requested for
use in connection with the offering and sale of the Shares by the Underwriters
or by dealers to whom Shares may be sold; (v) the filing fees of the NASD in
connection with its review of the terms of the public offering and reasonable
fees and disbursements of counsel for the Underwriters in connection with such
review; (vi) inclusion of the Shares for quotation on the Nasdaq National
Market; and (vii) all transfer taxes, if any, with respect to the sale and
delivery of the Shares by the Company to the Underwriters. Subject to the
provisions of Section 9, the Underwriters agree to pay, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of the
obligations of the Underwriters under this Agreement not payable by the Company
pursuant to the preceding sentence, including, without limitation, the fees and
disbursements of counsel for the Underwriters.
7. Indemnification. (a) The Company, the Parent and the
Selling Stockholder agree, jointly and severally, to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section
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20 of the Exchange Act against any and all losses, claims, damages and
liabilities, joint or several (including any reasonable investigation, legal and
other expenses incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted), to which they, or any
of them, may become subject under the Securities Act, the Exchange Act or other
Federal or state law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities arise out of or are 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 any
amendment thereof or supplement thereto, (B) in any Blue Sky application or
other information or other documents executed by the Company filed in any state
or other jurisdiction to qualify any or all of the Shares under the securities
laws thereof (any such application, document or information being hereinafter
referred to as a "Blue Sky Application") or (C) in any materials or information
provided to investors by, or with the approval of, the Company or the Parent in
connection with the marketing of the offering of the Shares ("Marketing
Materials"), including any roadshow or investor presentations made to investors
by the Company or the Parent (whether in person or electronically), or in any
such case arise out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) in whole or in part upon any breach
of the representations and warranties set forth in Section 4 hereof, or (iii) in
whole or in part upon any failure of the Company, the Parent or the Selling
Stockholder to perform any of their respective obligations hereunder or under
law; provided, however, that such indemnity shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) on account of any
losses, claims, damages or liabilities arising from the sale of the Shares to
any person by such Underwriter if such untrue statement or omission or alleged
untrue statement or omission was made in such preliminary prospectus, the
Registration Statement or the Prospectus, or such amendment or supplement
thereto, or in any Blue Sky Application or Marketing Materials, in reliance upon
and in conformity with information furnished in writing by the Representatives
on behalf of any Underwriter specifically for use therein. The Company, the
Parent and the Selling Stockholder acknowledge that the only information
furnished in writing by the Representatives on behalf of the several
Underwriters for use in the Registration Statement or the Prospectus or in any
Blue Sky Application or Marketing Materials is (i) the second, third and fourth
sentences in the fourth paragraph under the caption "Underwriting" in the
Prospectus and (ii) the 10th and 12th paragraphs under such caption. This
indemnity agreement will be in addition to any liability which the Company, the
Parent and the Selling Stockholder may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Parent, the Selling Stockholder and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, each director of the
Company, and each officer of the Company who signs the Registration Statement,
to the same extent as the foregoing indemnity from the Company, the Parent and
the Selling Stockholder to each Underwriter, but only insofar as such losses,
claims, damages or liabilities arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which was made in
any preliminary prospectus, the Registration Statement or the Prospectus, or any
amendment thereof or supplement thereto, or in any Blue Sky Application or
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Marketing Materials, in reliance upon and in conformity with information
furnished in writing by the Representatives on behalf of any Underwriter for use
therein; provided, however, that the obligation of each Underwriter to indemnify
the Company (including any controlling person, director or officer thereof), the
Parent or the Selling Stockholder shall be limited to the net proceeds received
from such Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such action,
suit or proceeding, enclosing a copy of all papers served. No indemnification
provided for in Section 7(a) or 7(b) shall be available to any party who shall
fail to give notice as provided in this Section 7(c) if the party to whom notice
was not given was unaware of the proceeding to which such notice would have
related to the extent such indemnifying party is prejudiced by the failure to
give such notice, but the omission so to notify such indemnifying party of any
such action, suit or proceeding shall not relieve it from any liability that it
may have to any indemnified party for contribution or otherwise than under this
Section. In case any such action, suit or proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and the approval by the indemnified party of such counsel, the indemnifying
party shall not be liable to such indemnified party for any legal or other
expenses, except as provided below and except for the reasonable costs of
investigation subsequently incurred by such indemnified party in connection with
the defense thereof. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the employment of counsel by
such indemnified party has been authorized in writing by the indemnifying
parties, (ii) the indemnified party shall have been advised by counsel that
there may be one or more legal defenses available to it which are different from
or in addition to those available to the indemnifying party (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party) or (iii) the indemnifying parties
shall not have employed counsel to assume the defense of such action within a
reasonable time after notice of the commencement thereof, in each of which cases
the fees and expenses of counsel shall be at the expense of the indemnifying
parties. An indemnifying party shall not be liable for any settlement of any
action, suit, proceeding or claim effected without its written consent, which
consent shall not be unreasonably withheld or delayed.
8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 7(a) or 7(b) is due in accordance with its terms but for any reason is
held to be unavailable to or insufficient to hold harmless an indemnified party
under Section 7(a) or 7(b), then each indemnifying party shall contribute to the
aggregate losses, claims, damages and liabilities (including any investigation,
legal and other
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expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting any contribution received by any person entitled hereunder to
contribution from any person who may be liable for contribution) to which the
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company, the Parent and the Selling
Stockholder on the one hand and the Underwriters on the other from the offering
of the Shares or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 7 hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company, the Parent and the Selling Stockholder on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company, the Parent, the Selling Stockholder and the
Underwriters shall be deemed to be in the same proportion as (x) the total
proceeds from the offering (net of underwriting discounts but before deducting
expenses) received by the Company or the Selling Stockholder, as set forth in
the table on the cover page of the Prospectus, bear to (y) the underwriting
discounts received by the Underwriters, as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company, the Parent and the
Selling Stockholder or the Underwriters shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact related to information supplied by the Company, the Parent and the Selling
Stockholder or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Parent, the Selling Stockholder and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 8, (i) in no case shall any
Underwriter (except as may be provided in the Agreement Among Underwriters) be
liable or responsible for any amount in excess of the underwriting discount
applicable to the Shares purchased by such Underwriter hereunder; and (ii) the
Company, the Parent and the Selling Stockholder shall be liable and responsible
for any amount in excess of such underwriting discount; provided, however, that
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall
have the same rights to contribution as such Underwriter, and each person, if
any, who controls the Company within the meaning of the Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject in
each case to clauses (i) and (ii) in the immediately preceding sentence of this
Section 8. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section, notify such party or parties from whom contribution
may be sought, but the omission so to notify such party or parties
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from whom contribution may be sought shall not relieve the party or parties from
whom contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriter's obligations to contribute
pursuant to this Section 8 are several in proportion to their respective
underwriting commitments and not joint.
9. Termination. This Agreement may be terminated with respect
to the Shares to be purchased on a Closing Date by the Representatives by
notifying the Company and the Selling Stockholder at any time:
(a) in the absolute discretion of the Representatives at or
before any Closing Date: (i) if on or prior to such date, any domestic
or international event or act or occurrence has materially disrupted,
or in the opinion of the Representatives will in the future materially
disrupt, the securities markets; (ii) if there has occurred any new
outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Representatives,
inadvisable to proceed with the offering; (iii) if there shall be such
a material adverse change in general financial, political or economic
conditions or the effect of international conditions on the financial
markets in the United States is such as to make it, in the judgment of
the Representatives, inadvisable or impracticable to market the Shares;
(iv) if trading in the Shares has been suspended by the Commission or
trading generally on the New York Stock Exchange, Inc., the American
Stock Exchange, Inc. or the Nasdaq National Market has been suspended
or limited, or minimum or maximum ranges for prices for securities
shall have been fixed, or maximum ranges for prices for securities have
been required, by said exchanges or by order of the Commission, the
NASD or any other governmental or regulatory authority; (v) if a
banking moratorium has been declared by any state or Federal authority;
or (vi) if, in the judgment of the Representatives, there has occurred
a Material Adverse Effect, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as
required by this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, neither the Company, the Parent nor the Selling Stockholder shall be
under any liability to any Underwriter, and no Underwriter shall be under any
liability to the Company, the Parent or the Selling Stockholder, except that (y)
if this Agreement is terminated by the Representatives or the Underwriters
because of any failure, refusal or inability on the part of the Company, the
Parent or the Selling Stockholder to comply with the terms or to fulfill any of
the conditions of this Agreement, the Company will reimburse the Underwriters
for all out-of-pocket expenses (including the reasonable fees and disbursements
of their counsel) incurred by them in connection with the proposed purchase and
sale of the Shares or in contemplation of performing their obligations hereunder
and (z) no Underwriter who shall have failed or refused to purchase the Shares
agreed to be purchased by it under this Agreement, without some reason
sufficient hereunder to justify cancellation or termination of its
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obligations under this Agreement, shall be relieved of liability to the Company,
the Selling Stockholder or to the other Underwriters for damages occasioned by
its failure or refusal.
10. Substitution of Underwriters. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under Section 9) to purchase on
any Closing Date the Shares agreed to be purchased on such Closing Date by such
Underwriter or Underwriters, the Representatives may find one or more substitute
underwriters to purchase such Shares or make such other arrangements as the
Representatives may deem advisable or one or more of the remaining Underwriters
may agree to purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date:
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares
that all the Underwriters are obligated to purchase on such Closing
Date, then each of the nondefaulting Underwriters shall be obligated to
purchase such Shares on the terms herein set forth in proportion to
their respective obligations hereunder; provided that in no event shall
the maximum number of Shares that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 11
by more than one-ninth of such number of Shares without the written
consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date,
then the Company shall be entitled to one additional business day
within which it may, but is not obligated to, find one or more
substitute underwriters reasonably satisfactory to the Representatives
to purchase such Shares upon the terms set forth in this Agreement.
In any such case, either the Representatives or the Company
shall have the right to postpone the applicable Closing Date for a period of not
more than five business days in order that necessary changes and arrangements
(including any necessary amendments or supplements to the Registration Statement
or Prospectus) may be effected by the Representatives and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Company shall make arrangements pursuant to
this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company or the Selling
Stockholder and without liability on the part of the Company, except in both
cases as provided in Sections 6(b), 7, 8 and 9. The provisions of this Section
shall not in any way affect the liability of any defaulting Underwriter to the
Company or the nondefaulting Underwriters arising out of such default. A
substitute underwriter hereunder shall become an Underwriter for all purposes of
this Agreement.
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11. Miscellaneous. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers, of
the Parent, of the Selling Stockholder and of the Underwriters set forth in or
made pursuant to this Agreement shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company, the Parent or the Selling Stockholder or any of the officers, directors
or controlling persons referred to in Sections 7 and 8 hereof, and shall survive
delivery of and payment for the Shares. The provisions of Sections 6(b), 7, 8
and 9 shall survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company, the Parent and the Selling Stockholder and their
respective successors and assigns, and, to the extent expressed herein, for the
benefit of persons controlling any of the Underwriters, or the Company, and
directors and officers of the Company, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser of Shares from any Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing
and mailed or delivered or by telephone or telegraph if subsequently confirmed
in writing, (a) if to the Representatives, c/o CIBC World Markets Corp., One
World Financial Center, New York, New York 10281, Attention: __________, with a
copy to Baker Botts L.L.P., 910 Louisiana Street, 3000 One Shell Plaza, Houston,
Texas 77002, Attention: R. Joel Swanson, and (b) if to the Company, to its agent
for service as such agent's address appears on the cover page of the
Registration Statement with a copy to Gardere Wynne Sewell & Riggs, L.L.P., 1000
Louisiana Street, Suite 3400, Houston, Texas 77002, Attention: W. Mark Young,
and (c) if to the Parent or the Selling Stockholder to Seitel, Inc., 50 Briar
Hollow Lane, 7th Floor, West Building, Houston, Texas 77027, Attention: Debra D.
Valice, with a copy to Gardere Wynne Sewell & Riggs, L.L.P., 1000 Louisiana
Street, Suite 3400, Houston, Texas 77002, Attention: W. Mark Young.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflict of laws.
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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Please confirm that the foregoing correctly sets forth the
agreement among us.
Very truly yours,
VISION ENERGY, INC.
By:
-------------------------------
Name:
Title:
SEITEL, INC.
By:
-------------------------------
Name:
Title:
VISION HOLDINGS LLC
By:
-------------------------------
Name:
Title:
Confirmed:
CIBC WORLD MARKETS CORP.
A.G. EDWARDS & SONS, INC.
SOUTHCOAST CAPITAL L.L.C.
Acting severally on behalf of itself and as representative of the several
Underwriters named in Schedule I annexed hereto.
By: CIBC WORLD MARKETS CORP.
By:
------------------------
Name:
Title:
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SCHEDULE I
Number of Firm
Shares to
Name Be Purchased
- ---- ------------
CIBC World Markets Corp.........................................
A.G. Edwards & Sons, Inc........................................
Southcoast Capital L.L.C........................................
-------------
Total.................................................. 12,915,000
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I-1