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EXHIBIT 1.1
3,500,000 Shares
ENERGY VENTURES, INC.
Common Stock
UNDERWRITING AGREEMENT
July ____, 1996
LEHMAN BROTHERS INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
JEFFERIES & COMPANY, INC.
PRUDENTIAL SECURITIES INCORPORATED
SCHRODER WERTHEIM & CO. INCORPORATED
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Dear Sirs:
Energy Ventures, Inc., a Delaware corporation (the "Company"),
proposes, upon the terms and conditions set forth herein, to issue and sell to
you (the "Underwriters"), 3,000,000 shares (the "Primary Shares") of common
stock, par value $1.00 per share (the "Common Stock"), of the Company. In
addition, GulfMark International, Inc., a Delaware corporation ("GulfMark"),
proposes, upon the terms and conditions set forth herein, to sell to the
Underwriters 300,000 currently outstanding shares of Common Stock (the
"GulfMark Shares"), and certain other stockholders of the Company named in
Schedule III hereto (the "Individual Stockholders" and, collectively with
GulfMark, the "Selling Stockholders") propose, upon the terms and conditions
set forth herein, to sell to the Underwriters an aggregate of 200,000 currently
outstanding shares of Common Stock (the "Individual Stockholder Shares" and,
collectively with the GulfMark Shares, the "Secondary Shares"). In addition,
for the sole purpose of covering over-allotments in connection with the sale of
the Primary Shares and the Secondary Shares (collectively, the "Firm Shares"),
the Company proposes to grant to the Underwriters an option to purchase up to
an additional 450,000 newly issued shares (the "Option Shares") of Common
Stock. The Firm Shares and any Option
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Shares purchased pursuant to this Underwriting Agreement (this "Agreement") are
herein called the "Shares."
This is to confirm the agreement concerning the purchase of the
Shares by the Underwriters from the Company and the Selling Stockholders.
1. Representations, Warranties and Agreements of the Company.
The Company represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (File No.
333-06715) with respect to the Shares (i) has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission") thereunder, (ii)
has been filed with the Commission under the Securities Act and (iii) either
has become effective under the Securities Act and is not proposed to be amended
or is proposed to be amended by amendment or post-effective amendment. If the
Company does not propose to amend such Registration Statement and if any post-
effective amendment to such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement, the most
recent such amendment has been declared effective by the Commission. Copies of
such registration statement as amended to date have been delivered by the
Company to you. For purposes of this Agreement, "Effective Time" means the
date and the time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such registration statement, or
amendments thereof, before it became effective under the Securities Act and any
prospectus filed with the Commission by the Company with the consent of the
Underwriters pursuant to Rule 424(a) of the Rules and Regulations;
"Registration Statement" means such registration statement, as amended at the
Effective Time, including any documents incorporated by reference therein and,
if the Effective Date is on or before the date of this Agreement, all
information contained in the final prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations ("Rule 424(b)") in
accordance with Section 8(a) hereof and deemed to be a part thereof as of the
Effective Time pursuant to paragraph (b) of Rule 430A of the Rules and
Regulations; and "Prospectus" means the form of prospectus relating to the
Shares, as first used to confirm sales of the Shares. If it is contemplated,
at the time this Agreement is executed, that a registration statement will be
filed pursuant to Rule 462(b) under the Securities Act before the offering of
the Common Stock may commence, the term "Registration Statement" as used in
this Agreement includes such registration statement.
Reference made herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents incorporated
by reference therein as of the date of such Preliminary Prospectus or
Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed under the Securities Exchange Act of
1934 (the "Exchange Act") after the date of such Preliminary Prospectus or
Prospectus, as the case may be, and incorporated
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by reference in such Preliminary Prospectus or Prospectus. The Commission has
not issued any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus.
(b) If the Effective Date is on or before the date of
this Agreement, (i) the Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are first used to confirm sales
of the Shares, as the case may be, conform to the requirements of the
Securities Act and the Rules and Regulations, (ii) the Registration Statement
and any amendment thereto does not and will not, as of the applicable effective
date, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) the Prospectus and any amendment or supplement
thereto will not, as of the first date of its use to confirm sales of the
Shares, 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, in light of the circumstances under which they were made,
not misleading. If the Effective Date is after the date of this Agreement, (i)
the Registration Statement and the Prospectus and any further amendments or
supplements thereto will, when they become effective or are first used to
confirm sales of the Shares, as the case may be, conform to the requirements of
the Securities Act and the Rules and Regulations, (ii) the Registration
Statement and any amendment thereto will not, as of the applicable effective
date, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) the Prospectus and any amendment or supplement
thereto will not, as of the date on which the Prospectus and any amendment or
supplement thereto is first used to confirm sales of the Shares, 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, in
light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the Company makes no representation or warranty
as to information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by you or by the Selling Stockholders specifically for
inclusion therein. There is no contract or document required to be described
in the Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement or to a document incorporated by reference into the
Registration Statement which is not described or filed as required.
(c) The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of Delaware with
full corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus, and is duly registered and
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction, domestic or foreign, in which such registration or
qualification or good standing is required to conduct its business (whether by
reason of the ownership or leasing of property, the conduct of its business or
otherwise), except where the failure to so register or qualify or be in good
standing would not have a material adverse effect on the business, financial
condition or results of operations of the Company and the Subsidiaries (as
hereinafter defined), taken as a whole (a "Material Adverse Effect").
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(d) Schedule II hereto is a complete and accurate
schedule of (i) the names of all corporations, partnerships and joint ventures
(the "Subsidiaries") in which the Company has a majority equity interest and
which would be required to be listed on Exhibit 21 to an Annual Report on Form
10-K of the Company if such report were dated and filed with the Commission at
the time of execution and delivery of this Agreement and (ii) information
indicating the jurisdiction of incorporation of each such entity. Each
Subsidiary that is a corporation is duly organized, validly existing and in
good standing in the jurisdiction of its incorporation indicated on Schedule II
hereto, with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus, and is
duly registered and qualified to do business and is in good standing as a
foreign corporation, in each jurisdiction, domestic or foreign, in which such
registration or qualification or good standing is required to conduct its
business (whether by reason of the ownership or leasing of property, the
conduct of its business or otherwise), except where the failure so to register
or qualify or be in good standing would not have a Material Adverse Effect.
Each Subsidiary that is not a corporation is duly organized, validly existing
and in good standing in the jurisdiction of its organization indicated on
Schedule II hereto, with full authority to own, lease and operate its
properties and conduct its business as described in the Prospectus, and is duly
registered or qualified to do business and is in good standing in each
jurisdiction, domestic or foreign, in which such registration or qualification
or good standing is required to conduct its business (whether by reason of the
ownership or leasing of property, the conduct of its business or otherwise),
except where the failure so to register or qualify or be in good standing would
not have a Material Adverse Effect. All the outstanding shares of capital
stock of each of the Subsidiaries that is a corporation have been duly
authorized and validly issued, are fully paid and nonassessable; and all of
such shares of capital stock are owned by the Company directly, or indirectly
through one of the other Subsidiaries, free and clear of any lien, adverse
claim, security interest or other encumbrance except as set forth on Schedule
II hereto.
(e) The authorized and outstanding capital stock of the
Company is as set forth in the Prospectus. All corporate action required to be
taken by the Company for the authorization, issuance, sale, and delivery of the
Primary Shares and the Option Shares has been validly and sufficiently taken.
All of the outstanding shares of Common Stock (including the Secondary Shares)
are, and the Primary Shares and the Option Shares, upon issuance and delivery
and payment therefor in the manner herein described, will be, duly authorized,
validly issued, fully paid, and nonassessable. Except as described or referred
to in the Prospectus: (i) there are no preemptive rights or other rights to
subscribe for or to purchase any shares of Common Stock, or any restriction
upon the voting or transfer of the Shares, pursuant to the Company's
certificate of incorporation, bylaws, or other governing documents or any
agreement or other instrument to which the Company or any of the Subsidiaries
is a party or by which any of them is bound; and (ii) there are no outstanding
options, warrants or rights to purchase any shares of capital stock of the
Company or any securities convertible into or exercisable or exchangeable for
any shares of the capital stock of the Company. Neither the filing of the
Registration Statement nor the offering or sale of the Shares as contemplated
by this Agreement give rise to any rights, other than those which have been
waived or satisfied, for or relating to the registration of shares of Common
Stock or other securities of the Company. The Common Stock conforms to the
description thereof contained under the caption "Description of Capital Stock"
in the Prospectus.
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(f) The Company has all requisite corporate power and
authority to execute and deliver this Agreement and to incur and perform each
of its obligations provided herein. This Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a legal,
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except (i) as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other laws relating to or affecting creditors' rights generally, (ii) that the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to certain equitable defenses and to the discretion of
the court before which any proceedings therefor may be brought and (iii) as
rights to indemnity and contribution hereunder may be limited by applicable
securities laws or the policies underlying such laws.
(g) Neither the Company nor any of the Subsidiaries is
in violation of its certificate or articles of incorporation or by-laws or
other organizational documents. Neither the Company nor any of the
Subsidiaries is in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any judgment, order or decree of any court or governmental
agency or body or of any arbitrator having jurisdiction over the Company or any
of the Subsidiaries, or in default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any agreement, indenture, lease or other
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound, which
violations or defaults would, either individually or in the aggregate, have a
Material Adverse Effect.
(h) Neither the issuance and sale of the Primary Shares
and the Option Shares, nor the execution, delivery or performance of this
Agreement by the Company, nor the consummation by the Company of the
transactions contemplated hereby (i) requires any consent, approval,
authorization or other order of or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may be required under the Securities Act or the Rules
and Regulations or for the compliance with the securities or the Blue Sky laws
of various jurisdictions), or conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, the certificate or articles of
incorporation or bylaws or other organizational documents of the Company or any
of the Subsidiaries or (ii) conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, any agreement, indenture,
lease or other instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their respective properties may be
bound, or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of the
property or assets of any of them is subject which conflict, default,
violation, creation or imposition would, for purposes of this clause (ii) only,
either individually or in the aggregate, have a Material Adverse Effect.
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(i) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending or, to the knowledge of the Company or
the Subsidiaries, threatened against the Company or the Subsidiaries which,
considered singly or in the aggregate, may reasonably be expected to result in
any material adverse change in the business, financial condition or results of
operations of the Company and its Subsidiaries, taken as a whole (a "Material
Adverse Change"), or may reasonably be expected to materially adversely affect
the consummation of this Agreement or the issuance of the Primary Shares or the
Option Shares.
(j) The historical consolidated financial statements of
the Company included or incorporated by reference in the Preliminary Prospectus
and the Prospectus present fairly the consolidated financial position, the
results of operations and the cash flows of the Company and the Subsidiaries 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 such periods, except as disclosed therein. The information (other
than pro forma information) set forth under the caption "Selected Consolidated
Financial Data" in the Preliminary Prospectus and the Prospectus is fairly
stated in all material respects in relation to the financial statements from
which it has been derived. The pro forma financial information set forth in
the Preliminary Prospectus and the Prospectus complies in all material respects
with the applicable accounting requirements of Article 11 of Regulation S-X
promulgated by the Commission.
(k) Arthur Andersen LLP, who have certified the
financial statements included in the Preliminary Prospectus and the Prospectus
(or any amendment or supplement thereto), are independent public accountants
within the meaning of the Securities Act and the Rules and Regulations
thereunder.
(l) Since the respective dates as of which information
is given in the Prospectus, except as otherwise stated therein, (i) there has
been no Material Adverse Change and no development that could reasonably be
expected to have a Material Adverse Change, (ii) there have not been any
transactions entered into by the Company or any of the Subsidiaries, other than
those in the ordinary course of business, which are material to the Company and
its Subsidiaries taken as a whole, (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock and (iv) there has not been any material change in the
capital stock, or material increase in the long-term debt, of the Company and
the Subsidiaries taken as a whole.
(m) Each of the Company and the Subsidiaries has such
material permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits") as are necessary to own its respective
properties and to conduct its business in the manner described in the
Prospectus, subject in each case to such qualifications as may be set forth in
the Prospectus and except where the failure to have such permits would not have
a Material Adverse Effect; each of the Company and the Subsidiaries has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows, or after notice or lapse of
time would
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allow, revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permits, subject in each
case to such qualifications as may be set forth in the Prospectus and except
where the failure so to fulfill or perform or the occurrence of such an event
would not have a Material Adverse Effect; and except as described in the
Prospectus, none of such permits contains any restriction that is materially
burdensome to the Company and the Subsidiaries taken as a whole.
(n) The Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "1940 Act"),
and is not subject to regulation as an "investment company" under the 1940 Act.
(o) The Company and each of the Subsidiaries have filed
all tax returns required to be filed (taking into consideration any extension
periods), which returns are complete and correct in all material respects, and
neither the Company nor any Subsidiary is in default in the payment of any
taxes which were payable pursuant to said returns or any assessments with
respect thereto (taking into consideration any extension periods), except to
the extent the failure to file such return or pay such tax would not have a
Material Adverse Effect.
(p) The Company and the Subsidiaries have good and
marketable title to all properties owned by them, in each case free and clear
of all liens, encumbrances and defects except (i) as do not materially
interfere with the use made and proposed to be made of such properties, (ii) as
described in the Prospectus or (iii) where the failure to have good title to
such properties would not have a Material Adverse Effect.
(q) The Company has complied and will comply with all
of the provisions of Florida H.B. 1771, codified as Section 526.075 of the
Florida statutes, and all regulations promulgated thereunder relating to
issuers doing business with Cuba.
(r) The outstanding shares of Common Stock (including
the Secondary Shares) are, and the Primary Shares and the Option Shares will
be, listed on the New York Stock Exchange (the "NYSE").
(s) The Company has not taken and will not take,
directly or indirectly, any action designed 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 shares of the Common Stock to
facilitate the sale or resale of the Shares.
(t) The conditions for use of Form S-3, set forth in
the General Instructions thereto, have been satisfied.
(u) The documents incorporated by reference into the
Registration Statement, at the time they were filed with the Commission,
complied in all material respects with the requirements of the Exchange Act and
the Rules and Regulations thereunder, and any document hereafter filed that is
incorporated by reference into the Registration Statement will, when it is
filed
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with the Commission, comply in all material respects with the requirements of
the Exchange Act and the Rules and Regulations thereunder, and will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(v) Any certificate signed by any officer of the
Company and delivered, pursuant to this Agreement or in connection with the
payment of the purchase price and delivery of the certificates for the Primary
Shares and the Option Shares, to the Underwriters or counsel to the
Underwriters shall be deemed a representation and warranty by the Company to
each of the Underwriters as to the matters covered thereby.
2. Representations, Warranties and Agreements of GulfMark.
GulfMark represents and warrants to, and agrees with, each Underwriter and the
Company that:
(a) GulfMark (i) has no reason to believe that the
representations and warranties of the Company contained in Section 1 hereof are
not materially true and correct, (ii) is familiar with the Registration
Statement and the Prospectus (as amended or supplemented) and has no knowledge
of any material fact, condition or information not disclosed in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto), as of the applicable effective date, which has adversely affected or
may adversely affect the business of the Company and (iii) is not prompted to
sell the GulfMark Shares by any information concerning the Company which is not
set forth in the Registration Statement and the Prospectus.
(b) To the extent that statements or omissions, if any,
made in any Preliminary Prospectus, the Prospectus or the Registration
Statement or any amendment or supplement thereto are made in reliance upon and
in conformity with written information furnished to the Company by GulfMark
expressly for use therein, such Preliminary Prospectus, the Prospectus and the
Registration Statement and any amendments or supplements thereto, upon
effectiveness or filing with the Commission and at the First Closing Date, as
the case may be, did not or will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) GulfMark is a corporation duly organized and
validly existing in good standing under the laws of the State of Delaware.
(d) GulfMark has, and immediately prior to the First
Closing Date (as hereinafter defined) GulfMark will have, good and valid title
to the Shares to be sold by GulfMark hereunder on such date, free and clear of
all liens, encumbrances, equities or claims, and upon delivery of such Shares
and payment therefor pursuant hereto, good and valid title to such Shares, free
and clear of all liens, encumbrances, equities or claims, will pass to the
several Underwriters.
(e) GulfMark has all requisite corporate power and
authority to execute and deliver this Agreement and to incur and perform each
of its obligations provided herein. This Agreement has been duly and validly
authorized, executed and delivered by GulfMark and
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constitutes a legal, valid and binding agreement of GulfMark, enforceable
against GulfMark in accordance with its terms, except (i) as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other laws relating to or affecting creditors' rights
generally, (ii) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to certain equitable defenses
and to the discretion of the court before which any proceedings therefor may be
brought and (iii) as rights to indemnity and contribution hereunder may be
limited by applicable securities laws or the policies underlying such laws.
(f) Neither the sale of the GulfMark Shares, nor the
execution, delivery or performance of this Agreement by GulfMark, nor the
consummation by GulfMark of the transactions contemplated hereby (i) requires
any consent, approval, authorization or other order of, or registration or
filing with, any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be required under the
Securities Act or the Rules and Regulations or for the compliance with the
securities or the Blue Sky laws of various jurisdictions), or conflicts or will
conflict with or constitutes or will constitute a breach of, or a default
under, the certificate of incorporation or bylaws of GulfMark or (ii) conflicts
or will conflict with or constitutes or will constitute a breach of, or a
default under, any agreement, indenture, lease or other instrument to which
GulfMark is a party or by which GulfMark or any of its properties may be bound,
or will result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of GulfMark pursuant to the terms of any agreement
or instrument to which it is a party or by which it may be bound or to which
any of the property or assets of GulfMark is subject which conflict, default,
violation, creation or imposition would, for purposes of this clause (ii) only,
either individually or in the aggregate, have a material adverse effect on the
business, financial condition or results of operations of GulfMark or
materially adversely affect the consummation of this Agreement or the sale of
the GulfMark Shares.
(g) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now pending or,
to the knowledge of GulfMark, threatened against GulfMark which, considered
singly or in the aggregate, may reasonably be expected to have a material
adverse effect on the business, financial condition or results of operations of
GulfMark or materially adversely affect the consummation of this Agreement or
the sale of the GulfMark Shares.
(h) GulfMark has not taken and will not take, directly
or indirectly, any action designed 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 shares of the Common Stock to
facilitate the sale or resale of the Shares.
(i) Any certificate signed by any officer of GulfMark
and delivered, pursuant to this Agreement or in connection with the payment of
the purchase price and delivery of the certificates for the GulfMark Shares, to
the Underwriters or counsel to the Underwriters shall be deemed a
representation and warranty by GulfMark to each of the Underwriters as to the
matters covered thereby.
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(j) GulfMark agrees that the Shares to be sold by
GulfMark hereunder are subject to the interest of the Underwriters and that the
obligations of GulfMark hereunder shall not be terminated by any act of
GulfMark, by operation of law or the occurrence of any other event.
3. Representations, Warranties and Agreements of the Individual
Stockholders. Each of the Individual Stockholders severally represents and
warrants to, and agrees with, each Underwriter and the Company that:
(a) The Individual Stockholder has placed in custody
under a custody agreement (the "Custody Agreement" and, together with all other
similar agreements executed by the other Individual Stockholders, the "Custody
Agreements") with the Company, as custodian, for delivery under this Agreement,
certificates in negotiable form (with signature guaranteed by a bank, broker,
dealer, credit union, savings association or other entity that is a member in
good standing of a recognized Medallion Program approved by The Securities
Transfer Association Inc.) representing the Shares to be sold by the Individual
Stockholder hereunder.
(b) The Individual Stockholder has duly and irrevocably
executed and delivered a power of attorney (the "Power of Attorney" and,
together with all other similar agreements executed by the other Individual
Stockholders, the "Powers of Attorney") appointing Bernard J. Duroc-Danner,
James G. Kiley and Frances R. Powell as attorneys-in-fact (the
"Attorneys-in-Fact"), with full power of substitution, and with full authority
(exercisable by any one of them) to execute and deliver this Agreement and to
take such other action as may be necessary or desirable to carry out the
provisions hereof on behalf of the Individual Stockholder. Each Individual
Stockholder agrees to deliver to the Attorneys-in-Fact such documentation as
any Attorney-in-Fact, the Company or any Underwriter or any of their respective
counsel may reasonably request to effectuate any of the provisions of this
Agreement, the Custody Agreement or the Power of Attorney, all of the foregoing
to be in form and substance reasonably satisfactory to the Attorneys-in-Fact
and the Underwriters.
(c) To the extent that statements or omissions, if any,
made in any Preliminary Prospectus, the Prospectus or the Registration
Statement or any amendment or supplement thereto are made in reliance upon and
in conformity with written information furnished to the Company by the
Individual Stockholder expressly for use therein, such Preliminary Prospectus,
the Prospectus and the Registration Statement and any amendments or supplements
thereto, upon effectiveness or filing with the Commission and at the First
Closing Date, as the case may be, did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
(d) The Individual Stockholder has, and immediately
prior to the First Closing Date the Individual Stockholder will have, good and
valid title to the Shares to be sold by the Individual Stockholder hereunder on
such date, free and clear of all liens, encumbrances, equities or claims, and
upon delivery of such Shares and payment therefor pursuant hereto, good and
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valid title to such Shares, free and clear of all liens, encumbrances, equities
or claims, will pass to the several Underwriters.
(e) The Individual Stockholder has all requisite
authority to execute and deliver this Agreement, the Power of Attorney and the
Custody Agreement and to incur and perform each of its obligations provided
herein and therein. This Agreement, the Power of Attorney and the Custody
Agreement have been duly and validly executed and delivered by the Individual
Stockholder and constitute legal, valid and binding agreements of the
Individual Stockholder, enforceable against the Individual Stockholder in
accordance with their terms, except (i) as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other laws relating to or affecting creditors' rights generally, (ii) that the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to certain equitable defenses and to the discretion of
the court before which any proceedings therefor may be brought and (iii) as
rights to indemnity and contribution hereunder may be limited by applicable
securities laws or the policies underlying such laws.
(f) Neither the sale of the Shares to be sold by the
Individual Stockholder hereunder, nor the execution, delivery or performance by
the Individual Stockholder of this Agreement, the Power of Attorney or the
Custody Agreement, nor the consummation by the Individual Stockholder of the
transactions contemplated hereby (i) requires any consent, approval,
authorization or other order of, or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may be required under the Securities Act or the Rules
and Regulations or for the compliance with the securities or the Blue Sky laws
of various jurisdictions) or (ii) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, any agreement,
indenture, lease or other instrument to which the Individual Stockholder is a
party or by which the Individual Stockholder or any of his or her properties
may be bound, or will result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Individual Stockholder
pursuant to the terms of any agreement or instrument to which the Individual
Stockholder is a party or by which he or she may be bound or to which any of
the property or assets of the Individual Stockholder is subject which conflict,
default, violation, creation or imposition would, for purposes of this clause
(ii) only, either individually or in the aggregate, have a material adverse
effect on the business, financial condition or results of operations of the
Individual Stockholder or materially adversely affect the consummation of this
Agreement or the sale of the Shares to be sold by the Individual Stockholder
hereunder.
(g) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now pending or,
to the knowledge of the Individual Stockholder, threatened against the
Individual Stockholder which, considered singly or in the aggregate, may
reasonably be expected to have a material adverse effect on the business,
financial condition or results of operations of the Individual Stockholder or
materially adversely affect the consummation of this Agreement or the sale of
the Shares to be sold by the Individual Stockholder hereunder.
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(h) The Individual Stockholder has not taken and will
not take, directly or indirectly, any action designed 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 shares of the Common Stock to
facilitate the sale or resale of the Shares.
(i) Any certificate signed by or on behalf of the
Individual Stockholder and delivered, pursuant to this Agreement or in
connection with the payment of the purchase price and delivery of the
certificates for the Shares to be sold by the Individual Stockholder hereunder,
to the Underwriters or counsel to the Underwriters shall be deemed a
representation and warranty by the Individual Stockholder to each of the
Underwriters as to the matters covered thereby.
(j) The Individual Stockholder agrees that the Shares
to be sold by the Individual Stockholder hereunder are subject to the interest
of the Underwriters, that the arrangements made by the Individual Stockholder
for custody are irrevocable except as provided in the Custody Agreement and the
Power of Attorney and that the obligations of the Individual Stockholder
hereunder shall not be terminated by any act of the Individual Stockholder, by
operation of law or the occurrence of any other event.
4. Purchase of the Shares by the Underwriters. (a) Subject to
the terms and conditions and upon the basis of the representations and
warranties herein set forth, the Company agrees to issue and sell to the
Underwriters the Primary Shares, GulfMark agrees to sell to the Underwriters
the GulfMark Shares and each Individual Stockholder agrees to sell to the
Underwriters the Individual Stockholder Shares set opposite such Individual
Stockholder's name on Schedule III hereto, severally and not jointly, and each
of the Underwriters agrees, severally and not jointly, to purchase, at a price
of $_______ per Share, the number of Firm Shares set forth opposite such
Underwriter's name in Schedule I hereto. Each Underwriter shall be obligated
to purchase from the Company, and from each Selling Stockholder, that number of
Firm Shares which represents the same proportion of the number of Firm Shares
to be sold by the Company, and by each Selling Stockholder, as the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I
represents of the total number of Firm Shares to be purchased by all of the
Underwriters pursuant to this Agreement. The respective purchase obligations
of the Underwriters with respect to the Firm Shares shall be rounded among the
Underwriters to avoid fractional shares, as the Underwriters may determine.
The Underwriters agree to offer the Firm Shares to the public as set forth in
the Prospectus.
(b) The Company hereby grants to the Underwriters an
option to purchase from the Company, solely for the purpose of covering
over-allotments in the sale of Firm Shares, all or any portion of the Option
Shares for a period of 30 days from the date hereof at the purchase price per
Share set forth above. Option Shares shall be purchased from the Company,
severally and not jointly, for the accounts of the Underwriters in proportion
to the aggregate number of Firm Shares set forth opposite such Underwriter's
name in Schedule I hereto, except that the respective purchase obligations of
each Underwriter shall be adjusted so that no Underwriter shall be obligated to
purchase fractional Option Shares.
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5. Delivery of and Payment for Shares. Delivery of certificates
for the Firm Shares and certificates for the Option Shares, if the option to
purchase the same is exercised on or before the third Business Day (as defined
in Section 18 hereof) prior to the First Closing Date, and payments therefor
shall be made at the offices of Lehman Brothers Inc., New York, New York (or
such other place as may be mutually agreed upon), at 10:00 a.m., New York City
time, on July _____, 1996 or on such other date as shall be determined by you
and the Company (the "First Closing Date").
The option to purchase Option Shares granted in Section 4 hereof
may be exercised during the term thereof by written notice to the Company from
the Underwriters. Such notice shall set forth the aggregate number of Option
Shares as to which the option is being exercised and the time and date, not
earlier than either the First Closing Date or the second Business Day after the
day on which the option shall have been exercised, whichever is later, nor
later than the third Business Day after the date of such exercise, as
determined by the Underwriters, when the Option Shares are to be delivered (the
"Second Closing Date"). Delivery and payment for such Option Shares shall be
made at the offices set forth above for delivery and payment of the Firm
Shares. The First Closing Date and the Second Closing Date are sometimes
herein individually called the "Closing Date" and collectively called the
"Closing Dates."
Delivery of certificates for the Primary Shares and the Option
Shares shall be made by or on behalf of the Company to you, for the respective
accounts of the Underwriters, against payment to or upon the order of the
Company of the purchase price therefor by wire transfer of immediately
available funds. Delivery of certificates for the Secondary Shares shall be
made by or on behalf of the Selling Stockholders to you, for the respective
accounts of the Underwriters, against payment to or upon the order of the
respective Selling Stockholders of the purchase price therefor by wire transfer
of immediately available funds. The certificates for the Shares shall be
registered in such names and denominations as you shall have requested at least
two full Business Days prior to the applicable Closing Date, and shall be made
available for checking and packaging at such location in New York, New York, as
may be designated by you at least one full Business Day before such Closing
Date. Time shall be of the essence, and delivery of certificates for the
Shares at the time and place specified in this Agreement is a further condition
to the obligations of each Underwriter.
6. Covenants of the Company. The Company covenants and agrees
with each Underwriter that:
(a) If the Effective Date is on or before the date of
this Agreement, the Company shall comply with the provisions of and make all
requisite filings with the Commission pursuant to Rule 424(b) 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) of the Rules and Regulations. The
Company shall advise the Underwriters, promptly after it receives notice
thereof, of the time when, if the Effective Date is on or before the date of
this Agreement, any amendment to the Registration Statement or, if the
Effective Date is after the date of this Agreement, the Registration Statement
or any amendment
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thereto, has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed. The Company shall notify
you promptly of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for additional
information; and the Company shall prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the Registration
Statement or the Prospectus which, in your opinion, may be reasonably necessary
or advisable in connection with the distribution of the Shares. The Company
shall advise you promptly of the issuance by the Commission of any stop order
or other order suspending the effectiveness of the Registration Statement,
suspending or preventing the use of any Preliminary Prospectus or the
Prospectus, or of the institution of any proceedings for any such purpose; and
the Company shall use its reasonable efforts to prevent the issuance of any
stop order or other such order and, should a stop order or other such order be
issued, to obtain as soon as possible the lifting thereof.
(b) The Company shall furnish to each of the
Underwriters and to counsel for the Underwriters a signed copy of the
Registration Statement as originally filed and each amendment thereto filed
with the Commission, including all consents and exhibits filed therewith, and
shall furnish to the Underwriters such number of conformed copies of the
Registration Statement, as originally filed and each amendment thereto
(excluding exhibits other than this Agreement), the Prospectus and all
amendments and supplements to any of such documents (including any document
filed under the Exchange Act and deemed to be incorporated by reference in the
Preliminary Prospectus or Prospectus), in each case as soon as available and in
such quantities as the Underwriters may from time to time reasonably request.
(c) Within the time during which the Prospectus
relating to the Shares is required to be delivered under the Securities Act,
the Company shall comply with all requirements imposed upon it by the
Securities Act, as now and hereafter amended, and by the Rules and Regulations,
as from time to time in force, so far as is necessary to permit the continuance
of sales of the Shares as contemplated by the provisions hereof and by the
Prospectus. If during such period any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend the Registration
Statement or supplement the Prospectus or file any document to comply with the
Securities Act, the Company shall promptly notify you and, subject to Section
6(d) hereof, shall amend the Registration Statement or supplement the
Prospectus or file any document (at the expense of the Company) so as to
correct such statement or omission or to effect such compliance.
(d) Prior to filing any amendment to the Registration
Statement or supplement to the Prospectus before the termination of the
offering of the Shares by the Underwriters, the Company shall furnish a copy
thereof to the Underwriters and counsel to the Underwriters, and will not file
or publish any such amendment or supplement to which the Underwriters shall
reasonably object by notice to the Company after a reasonable period to review.
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(e) The Company shall use reasonable efforts to qualify
the Shares for offer and sale under the securities laws of such states and
other jurisdictions in the United States as the Underwriters shall reasonably
request and maintain such qualifications for so long as may be necessary for
the distribution of the Shares; provided that, notwithstanding the foregoing,
the Company shall not, with respect to any such jurisdiction, be required to
qualify as a foreign corporation, to file a general consent to service of
process or to take any other action that would subject it to service of process
in suits other than those arising out of the offering of the Shares.
(f) The Company shall advise the Underwriters promptly
and, if requested by any of the Underwriters, shall confirm such advice in
writing, of the issuance by any state securities commission or other regulatory
body of any stop order suspending the qualification or exemption from
qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purpose by any state securities
commission or other regulatory authority. The Company shall use reasonable
efforts to prevent the issuance of any stop order or order suspending the
qualification or exemption of the Shares under any state securities or Blue Sky
laws, and if at any time any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption of the
Shares under any state securities or Blue Sky laws, the Company shall use
reasonable efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(g) The Company shall make generally available to its
security holders (and shall deliver to the Underwriters), in the manner
contemplated by Rule 158(b) of the Rules and Regulations under the Securities
Act or otherwise, as soon as practicable but in any event not later than 45
days after the end of its fiscal quarter in which the first anniversary date of
the Effective Date occurs (or not later than 90 days after the end of such
fiscal quarter if such fiscal quarter is the last fiscal quarter of the fiscal
year), an earnings statement satisfying the requirements of Section 11(a) of
the Securities Act and covering a period of at least 12 consecutive months
beginning after the Effective Date.
(h) The proceeds of the sale of the Primary Shares and
any Option Shares will be applied as set forth in the Prospectus.
(i) For a period of three years after the date hereof,
the Company will furnish to you, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year; and
during such period the Company will furnish to you (i) as soon as available, a
copy of each report (other than reports on Form 11-K), excluding exhibits,
unless requested by you, and definitive proxy statement of the Company filed
with the Commission under the Exchange Act or mailed to the Company's
stockholders and (ii) from time to time, such other public information
concerning the Company as you may reasonably request.
(j) The Company shall not, without the prior written
consent of Lehman Brothers Inc., during the 90 days following the date of the
Prospectus, (i) offer for sale, sell, or otherwise dispose of any shares of the
Common Stock or any securities convertible into, or exercisable or exchangeable
for, shares of Common Stock, or sell or grant options, rights, or
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warrants with respect to any shares of Common Stock, other than pursuant to
existing benefit plans of the Company or its subsidiaries and in accordance
with this Agreement. The Company shall not, without the prior written consent
of Lehman Brothers Inc., permit any stockholder of the Company with contractual
registration rights (other than the Selling Stockholders), whether now or
hereafter granted, to sell shares of Common Stock under an effective
registration statement (x) for 60 days following the date of the Prospectus in
the case of the former stockholders of ENERPRO and (y) for 90 days following
the date of the Prospectus in the case of all other stockholders.
(k) Whether or not this Agreement becomes effective or
is terminated or the sale of the Shares to the Underwriters is consummated, the
Company shall pay or cause to be paid (i) all expenses (including stock
transfer taxes) incurred in connection with the issuance of the Primary Shares
and any Option Shares and the delivery to the several Underwriters of the
Primary Shares and any Option Shares, (ii) all fees and expenses (including,
without limitation, fees and expenses of the Company's accountants and counsel,
but excluding fees and expenses of counsel to the Underwriters and counsel to
the Selling Stockholders) in connection with the preparation, printing, filing,
delivery and shipping of the Registration Statement (including the financial
statements therein and all amendments and exhibits thereto), each Preliminary
Prospectus, and the Prospectus, as amended or supplemented, and the
reproduction, delivery, and shipping of this Agreement and other underwriting
documents, including, but not limited to, underwriters' questionnaires,
underwriters' powers of attorney, Blue Sky surveys, agreements among
underwriters and selected dealer agreements, (iii) all reasonable fees and
expenses incurred in connection with the qualification of the Shares under
state securities laws as provided in Section 6(e) hereof, including all filing
fees and disbursements and the reasonable fees of counsel to the Underwriters
incurred in connection therewith, (iv) the filing fee payable to the National
Association of Securities Dealers, Inc., (v) any applicable fees relating to
the listing of the Shares on the NYSE, (vi) the cost of printing certificates
representing the Shares, (vii) the cost and charges of any transfer agent or
registrar, and (viii) all other costs and expenses incident to the performance
of the Company's obligations hereunder for which provision is not otherwise
made in this Section 6(k). It is understood, however, that, except as is
provided in this Section 6(k), in Section 9 and Section 12 hereof, the
Underwriters shall pay all of their own costs and expenses, including the fees
of their counsel, stock transfer taxes on resale of any of the Shares by them,
and any advertising expenses connected with any offers they may make, and each
Selling Stockholder shall pay all of its own costs and expenses, including the
fees of its respective counsel, any stock transfer taxes on the sale by it of
the Secondary Shares sold by it, and any other expenses incurred in connection
with the delivery to the several Underwriters of the Secondary Shares sold by
it. Notwithstanding the foregoing, the provisions of this Section 6(k) shall
not modify or alter any other agreement between the Company and any Selling
Stockholder with respect to the allocation and payment of expenses.
(l) Until termination of the offering of the Shares,
the Company will timely file all documents and any amendments to previously
filed documents required to be filed by it pursuant to Section 13, 14 or 15(d)
of the Exchange Act.
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7. Covenants of the Selling Stockholders. Each of the Selling
Stockholders severally covenants and agrees with each the Underwriters that:
(a) The Selling Stockholder shall not, without the
prior written consent of Lehman Brothers Inc., during the 90 days following the
date of the Prospectus, offer for sale, sell, or otherwise dispose of any
shares of the Common Stock or any securities convertible into, or exercisable
or exchangeable for, shares of Common Stock, other than in accordance with this
Agreement.
(b) The Selling Stockholder shall deliver to the
Underwriters prior to the First Closing Date a properly completed and executed
United States Treasury Department Form W-9.
8. Conditions to Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy, as of the date
hereof and each Closing Date (as if made on each Closing Date), of the
representations and warranties of the Company and the Selling Stockholders
contained herein, to performance by the Company and the Selling Stockholders of
their respective obligations hereunder and to each of the following additional
terms and conditions:
(a) The Prospectus shall have been filed with the
Commission in a timely fashion in accordance with Section 6(a) hereof, the
Registration Statement and all post-effective amendments to the Registration
Statement shall have become effective, all filings required by Rule 424 and
Rule 430A of the Rules and Regulations shall have been made and no such filings
shall have been made without the consent of the Underwriters, which consent
shall not have been unreasonably withheld; no stop order suspending the
effectiveness of the Registration Statement or any amendment or supplement
thereto or suspending the qualification of the Shares for offering or sale
shall have been issued; no proceedings for the issuance of any such order shall
have been initiated or threatened; and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been disclosed to you and complied with to
your reasonable satisfaction.
(b) No Underwriter shall have been advised by the
Company or any Selling Stockholder or shall have discovered and disclosed to
the Company on or prior to such Closing Date that the Registration Statement or
the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the reasonable opinion of the Underwriters, is
material or omits to state a fact which, in the reasonable opinion of such
Underwriters, is material, and is necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; and the
Company shall not have prepared and distributed any amendment to the
Registration Statement or supplement to the Prospectus without prior review by
the Underwriters pursuant to Section 6(d) herein.
(c) On each Closing Date, the Company shall have
furnished to you the opinion of Fulbright & Jaworski L.L.P., counsel to the
Company, addressed to you and dated such Closing Date, substantially in the
form attached as Exhibit A hereto.
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(d) On the First Closing Date, GulfMark shall have
furnished to you the opinion of Griggs & Harrison, P.C., counsel to GulfMark,
addressed to you and dated such Closing Date, substantially in the form
attached as Exhibit B hereto, and the Individual Stockholders shall have
furnished to you the opinion of Vinson & Elkins L.L.P., counsel to the
Individual Stockholders, addressed to you and dated such Closing Date,
substantially in the form attached as Exhibit C hereto.
(e) On or prior to such Closing Date, you shall have
received the opinion of Baker & Botts, L.L.P., counsel to the Underwriters,
addressed to you and dated such Closing Date, as to such matters as you shall
reasonably request, and such counsel shall have received such documents and
information as they request to enable them to pass upon such matters.
(f) On each Closing Date there shall have been
furnished to you a certificate, dated such Closing Date and addressed to you,
signed by the Chief Executive Officer or Executive Vice President and by the
Chief Financial Officer, Treasurer or Controller of the Company, to the effect
that: (i) the representations and warranties of the Company contained in this
Agreement are true and correct as if made at and as of such Closing Date; (ii)
the Company has complied with all the agreements and satisfied all the
conditions on its part to be complied with or satisfied on or before such
Closing Date; (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose has
been initiated or, to their knowledge, threatened; (iv) all filings required
to be made by the Company under Rule 424 and Rule 430A of the Rules and
Regulations under the Securities Act have been timely made; and (v) since the
Effective Date, there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement or the Prospectus which
has not been so set forth.
(g) On the First Closing Date, there shall have been
furnished to you a certificate, dated such Closing Date and addressed to you,
signed by the Executive Vice President or the Controller of GulfMark, to the
effect that: (i) the representations and warranties of GulfMark contained in
this Agreement are true and correct as if made at and as of such Closing Date;
and (ii) GulfMark has complied with all the agreements and satisfied all the
conditions on its part to be complied with or satisfied on or before such
Closing Date.
(h) On the First Closing Date, there shall have been
furnished to you a certificate, dated such Closing Date and addressed to you,
signed by or on behalf of each Individual Stockholder, to the effect that: (i)
the representations and warranties of such Individual Stockholder contained in
this Agreement are true and correct as if made at and as of such Closing Date;
and (ii) such Individual Stockholder has complied with all the agreements and
satisfied all the conditions on its part to be complied with or satisfied on or
before such Closing Date.
(i) On or prior to the date hereof, the Company shall
have furnished to you a letter substantially in the form of Exhibit D hereto
from each executive officer and each director of the Company and from Lehman
Brothers Holdings Inc.
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(j) You shall have been furnished by the Company such
additional documents and certificates as you may reasonably request.
(k) On each Closing Date you shall have received a
letter of Arthur Andersen LLP, dated such Closing Date and addressed to you,
confirming that they are independent certified public accountants within the
meaning of the Securities Act and the Rules and Regulations thereunder, and
stating, as of the date of such letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus as of a date not more than
five days prior to the date of such letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered
by its letter delivered to you concurrently with the execution of this
Agreement, and confirming (except for changes as noted therein that are
reasonably acceptable to you) the conclusions and findings set forth in such
prior letter.
(l) Since the Effective Date, neither the Company nor
any of the Subsidiaries shall have sustained any loss by fire, flood, accident
or other calamity, or shall have become a party to or the subject of any
litigation, which is materially adverse to the Company and the Subsidiaries
taken as a whole, nor shall there have occurred a Material Adverse Change,
regardless of whether arising in the ordinary course of business, which loss,
litigation or change, in your judgment, shall render it impractical or
inadvisable to proceed with the payment for and delivery of the Shares.
(m) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any of the following: (i) trading in
securities generally on the NYSE shall have been suspended or minimum prices
shall have been established on such exchange by the Commission or such exchange
or other regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium is declared by either Federal, New York or Texas
authorities, (iii) the United States becomes engaged in hostilities or there is
an escalation of hostilities involving the United States or there is a
declaration of a national emergency or war by the United States, or (iv) there
shall have been such a material adverse change in general economic, political
or financial conditions, or the effect of international conditions on the
financial markets in the United States shall be such, as to, in the judgment of
the Underwriters, make it inadvisable or impracticable to proceed with the
offering or delivery of the Shares.
All such opinions, certificates, letters and documents
shall be in compliance with the provisions hereof only if they are satisfactory
in form and substance to you and to counsel for the Underwriters. The Company
shall furnish to you conformed copies of all such opinions, certificates,
letters and other documents, and any additional documents and certificates
reasonably requested by you or counsel to the Underwriters, in such number as
you shall reasonably request. If any of the conditions specified in this
Section 8 shall not have been fulfilled when and as required by this Agreement,
this Agreement and all obligations of the Underwriters hereunder may be
canceled at, or at any time prior to, each Closing Date, by you. Any such
cancellation shall be without liability of the Underwriters to the Company.
Notice of such cancellation shall be given to the Company in writing, or by
telegraph or telephone and confirmed in writing.
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9. Indemnification. (a) The Company shall indemnify and hold
harmless each Underwriter from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which that
Underwriter may become subject, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement made by the Company in Section 1 hereof, (ii) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or in any Blue Sky application or other
document executed by the Company specifically for that purpose or based upon
written information furnished by the Company filed in any state or other
jurisdiction in order to qualify any or all of the shares under the securities
laws thereof (any such application, document or information being hereafter
referred to as a "Blue Sky Application"), or (iii) the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and shall promptly reimburse such Underwriter for any legal and
other expenses reasonably incurred, as such legal and other expenses are
incurred, by such Underwriter in investigating, defending or preparing to
defend against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action, notwithstanding the possibility
that payments for such expenses might later be held to be improper, in which
case such payments shall be promptly refunded; provided that the Company shall
not be liable in any such case to the extent, but only to the extent, that any
such loss, claim, damage, liability or action arises out of, or is based upon,
an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the Prospectus,
or any amendment or supplement thereto, or any Blue Sky Application in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter or the Selling Stockholders specifically for inclusion therein; and
provided further that this indemnity agreement shall not inure to the benefit
of any Underwriter on account of any loss, claim, damage, liability or action
arising from the sale of Shares to any person by such Underwriter if such
Underwriter failed to send or give a copy of the Prospectus, as the same may be
amended or supplemented, to such person within the time required by the
Securities Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in the
Preliminary Prospectus was remedied or corrected in the Prospectus, unless such
failure resulted from non-compliance by the Company with Sections 6(b) and 6(c)
hereof. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Underwriter.
(b) Each of the Selling Stockholders, severally but not
jointly, shall indemnify and hold harmless each Underwriter from and against
any loss, claim, damage or liability, joint or several, and any action in
respect thereof, to which that Underwriter may become subject, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement made by such Selling
Stockholder in Section 2 or Section 3 hereof, as applicable, (ii) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or in any Blue Sky Application or (iii) the
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and shall promptly reimburse such Underwriter for any
legal and other expenses reasonably incurred, as such legal and other expenses
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are incurred, by such Underwriter in investigating, defending or preparing to
defend against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action, notwithstanding the possibility
that payments for such expenses might later be held to be improper, in which
case such payments shall be promptly refunded; provided such Selling
Stockholder shall not be liable in any such case except to the extent, but only
to the extent, that any such loss, claim, damage, liability or action arises
out of, or is based upon, an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or any Blue Sky Application in reliance upon and in conformity with written
information furnished by such Selling Stockholder to the Company specifically
for inclusion therein. The foregoing indemnity agreement is in addition to any
liability which such Selling Stockholder may otherwise have to any Underwriter.
(c) Each Underwriter, severally but not jointly, shall
indemnify and hold harmless the Company and each of the Selling Stockholders
from and against any loss, claim, damage or liability, joint or several, and
any action in respect thereof, to which the Company or any of the Selling
Stockholders may become subject, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto, or any Blue Sky Application, or (ii) the omission or alleged omission
to state therein a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and shall reimburse the Company and each of the Selling
Stockholders for any legal and other expenses reasonably incurred, as such
legal and other expenses are incurred, by the Company and each of the Selling
Stockholders in investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action, notwithstanding the possibility
that payments for such expenses might later be held to be improper, in which
case such payments shall be promptly refunded; provided that such Underwriter
shall not be liable in any such case except to the extent, but only to the
extent, that any such loss, claim, damage, liability or action arises out of,
or is based upon, an untrue statement or alleged untrue statement or omission
or alleged omission made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or any Blue
Sky Application in reliance upon and in conformity with written information
furnished by such Underwriter to the Company specifically for inclusion
therein. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or to any of the
Selling Stockholders.
(d) Promptly after receipt by an indemnified party
under this Section 9 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 9, notify the indemnifying
party in writing of the claim or the commencement of the action; provided that
the failure to notify the indemnifying party shall not relieve such
indemnifying party from any liability which it may have to an indemnified party
under this Section 9, except to the extent the indemnifying party was
materially prejudiced thereby, or from any liability which such indemnifying
party may have to an indemnified party otherwise than under Section 9. If any
such
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claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it wishes, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 9 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided
that the indemnified party shall have the right to employ counsel to represent
all indemnified parties who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by indemnified parties
against the indemnifying party under this Section 9 if the employment of such
counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such action or the indemnifying party shall not
have reasonably promptly employed counsel to have charge of the defense of such
action or counsel for any of the indemnified parties shall have reasonably
concluded that there may be defenses available to the indemnified parties which
are in conflict with those available to the indemnifying party and, in that
event, the fees and expenses of one firm of separate counsel (in addition to
the fees and expenses of local counsel) shall be paid by the indemnifying
party. No indemnifying party shall be liable for any settlement effected
without its written consent (which consent shall not be unreasonably withheld),
but if settled with such consent or if there is a final, nonappealable judgment
for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment to the extent provided
herein. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which indemnity has been sought hereunder by any
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability or claims that are the subject matter
of such proceeding.
(e) If the indemnification provided for in this Section
9 shall for any reason be unavailable to or insufficient to hold harmless any
indemnified party under Section 9(a), 9(b) or 9(c) hereof in respect of any
loss, claim, damage or liability, or any action in respect thereof, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholders on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on
the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares (before
deducting expenses) received by the Company and the Selling Stockholders bear
to the total underwriting discounts and commissions received by the
Underwriters
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in each case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Selling Stockholders on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purposes) or by any other method of allocation that does not
take into account the equitable considerations referred to in the first
sentence of this subsection (e). The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 9(e) shall be deemed to include, for
purposes of this Section 9(e), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating, preparing to defend
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute are several in proportion to their respective obligations and
not joint. Each party entitled to contribution agrees that upon the service of
the summons or other initial legal process upon it in any action instituted
against it in respect to which contribution may be sought, it shall promptly
give written notice of such service to the party or parties from whom
contribution may be sought, but the omission so to notify such party or parties
of any such service shall not relieve the party from whom contribution may be
sought for any obligation it may have hereunder or otherwise, except to the
extent such party was materially prejudiced thereby.
(f) The obligations of the Company and the Selling
Stockholders under this Section 9 shall be in addition to any liability which
the Company or the Selling Stockholders may otherwise have, and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Securities Act; and the obligations of
the Underwriters under this Section 9 shall be in addition to any liability
that the respective Underwriters may otherwise have, and shall extend, upon the
same terms and conditions, to each director of the Company (including any
person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company), to each officer of the Company who
has signed the Registration Statement, and to each person, if any, who controls
the Company or any of the Selling Stockholders within the meaning of the
Securities Act.
10. Substitution of Underwriters. If any Underwriter defaults
in its obligation to purchase the number of Firm Shares or Option Shares, as
the case may be, which it has agreed to purchase under this Agreement, the
nondefaulting Underwriters shall be obligated to purchase (in case of either
the Firm Shares or the Option Shares, in the respective proportions which the
number
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of Shares set forth opposite the name of each nondefaulting Underwriter in
Schedule I hereto bears to the total number of Shares set forth opposite the
names of all the remaining nondefaulting Underwriters in Schedule I hereto) the
Shares that the defaulting Underwriter agreed but failed to purchase; except
that the nondefaulting Underwriters shall not be obligated to purchase any of
the Shares if the total number of Shares that the defaulting Underwriter or
Underwriters agreed but failed to purchase exceeds 9.09% of the total number of
Shares, and any nondefaulting Underwriter shall not be obligated to purchase
more than 110% of the number of Firm Shares set forth opposite its name in
Schedule I hereto plus the total number of Option Shares purchasable by it
pursuant to the terms of Section 4. If the foregoing maxima are exceeded, the
nondefaulting Underwriters, and any other underwriters satisfactory to you who
so agree, shall have the right, but shall not be obligated, to purchase (in
such proportions as may be agreed upon among them) all of the Shares. If the
nondefaulting Underwriters or the other underwriters satisfactory to you elect
not to purchase the Shares that the defaulting Underwriter or Underwriters
agreed but failed to purchase, this Agreement shall terminate without liability
on the part of any nondefaulting Underwriter, the Company or the Selling
Stockholders except for the payment of expenses to be borne by the Company, the
Selling Stockholders and the Underwriters as provided in Section 6(k) hereof
and the indemnity and contribution agreements of the Company, the Selling
Stockholders and the Underwriters contained in Section 9 hereof. As used in
this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this paragraph.
Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have for damages caused by its default. If the
nondefaulting Underwriters or any other underwriters satisfactory to you are
obligated or agree to purchase the Shares of a defaulting Underwriter, either
you or the Company may postpone each Closing Date for up to seven full Business
Days in order to effect any changes that may be necessary in the Registration
Statement, the Prospectus, or in any other document or agreement, and to file
promptly any amendments or any supplements to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary.
11. Termination. The obligations of the Underwriters hereunder
may be terminated by the Underwriters by notice given to and received by the
Company and the Selling Stockholders prior to delivery of and payment for the
Firm Shares if, prior to that time, any of the events described in Section 8(l)
or (m) shall have occurred or if the Underwriters shall decline to purchase the
Shares for any reason permitted under this Agreement.
12. Reimbursement of Underwriters' Expenses. If the Company
shall fail to tender the Primary Shares for delivery to the Underwriters by
reason of any failure, refusal or inability on the part of the Company to
perform any agreement on its part to be performed, or because any other
condition of the Underwriters' obligations in Section 8(a), (b), (c), (e), (f),
(i), (j), (k) and (l) is not fulfilled, the Company will reimburse the
Underwriters upon demand for all reasonable out-of-pocket expenses (including
the reasonable fees and disbursements of counsel to the Underwriters) that
shall have been incurred by them in connection with the proposed issuance and
sale of the Shares. If this Agreement is terminated pursuant to Section 10 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter on account of those expenses.
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13. Notices. Any notice or notification in any form to be given
hereunder shall be in writing and shall be delivered in person or sent by
telex, telephone or facsimile transmission (but in the case of a notification
by telephone, with subsequent confirmation by letter, telegraph or telex). Any
notice or notification to the Company shall be addressed to Energy Ventures,
Inc., 5 Post Oak Park, Suite 1760, Houston, Texas 77027, Attention:
President, with copies to Fulbright & Jaworski L.L.P., 1301 McKinney Street,
Houston, Texas 77010-3095, Attention: Curtis W. Huff. Any notice or
notification to GulfMark shall be addressed to GulfMark International, Inc., 5
Post Oak Park, Suite 1170, Houston, Texas 77027, Attention: Frank R. Pierce,
Executive Vice President, with copies to Griggs & Harrison, P.C., 1301 McKinney
Street, Suite 3200, Houston, Texas 77010-3033, Attention W. Garney Griggs.
Any notice or notification to the Individual Stockholders shall be addressed to
the address set forth on Schedule III attached hereto, with copies to Vinson &
Elkins L.L.P., 2500 First City Tower, 1001 Fannin, Houston, Texas 77002-6760,
Attention: Robert H. Whilden, Jr. Any notice or notification to the
Underwriters shall be addressed to Lehman Brothers Inc., 3 World Financial
Center, New York, New York 10285, Attention: Investment Banking Group. Any
notice or notification shall take effect at the time of receipt.
14. Information Furnished by Underwriters. The Underwriters
severally confirm that the statements set forth in the last paragraph on the
cover page in the Prospectus, the stabilization paragraph on page 2 of the
Prospectus, the information appearing in the list of names of, and number of
Shares to be purchased by, each of the Underwriters, under the caption
"Underwriting" in the Prospectus, and the statements in the second and seventh
paragraphs next following such list, constitute the written information
furnished by or on behalf of any Underwriter referred to in paragraph (b) of
Section 1 hereof and in paragraphs (a), (b) and (c) of Section 9 hereof.
15. Survival of Certain Provisions. The agreements contained in
Section 9 and the respective representations, warranties and agreements of the
Company and the Selling Stockholders in Sections 1, 2, 3, 6 and 7 shall survive
the delivery of the Shares and shall remain in full force and effect,
regardless of any investigation made by or on behalf of any indemnified party.
16. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the
Company, the Selling Stockholders, any officer, director or controlling person
referred to in Section 9(f) hereof and their respective successors. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 16, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
18. Definition of "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the NYSE is open for trading.
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19. Submission to Jurisdiction. The Company and the Selling
Stockholders each hereby irrevocably and unconditionally submits for itself and
its property in any legal action or proceeding relating to this Agreement, or
for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts for any thereof.
20. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
21. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between the
Company, the Selling Stockholders and each of the Underwriters, please sign and
return a counterpart hereof, whereupon this instrument will become a binding
agreement among the Company, the Selling Stockholders and you in accordance
with its terms.
ENERGY VENTURES, INC.
By:
-----------------------------------
Name: Bernard Duroc-Danner
Title: Chief Executive Officer
GULFMARK INTERNATIONAL, INC.
By:
-----------------------------------
Name: Frank R. Pierce
Title: Executive Vice President
THE INDIVIDUAL STOCKHOLDERS:
By:
-----------------------------------
Name:
------------------------------
Attorney-in-Fact
Accepted:
LEHMAN BROTHERS INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
JEFFERIES & COMPANY, INC.
PRUDENTIAL SECURITIES INCORPORATED
SCHRODER WERTHEIM & CO. INCORPORATED
BY: LEHMAN BROTHERS INC.
By:
-----------------------------------
Authorized Signatory
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SCHEDULE I
Number of
Firm Shares
Underwriters to be Purchased
------------ ---------------
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . .
Donaldson, Lufkin & Jenrette Securities Corporation . . . . .
Jefferies & Company, Inc. . . . . . . . . . . . . . . . . . .
Prudential Securities Incorporated . . . . . . . . . . . . .
Schroder Wertheim & Co. Incorporated . . . . . . . . . . . .
------------
Total . . . . . . . . . . . . . . . . . . . . 3,500,000
============
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SCHEDULE II
SUBSIDIARIES OF ENERGY VENTURES, INC.
=====================================================================================
Significant Jurisdiction of
Name of Subsidiary Subsidiaries Organization
=====================================================================================
AWI Drilling & Workover, Inc. No Louisiana
- -------------------------------------------------------------------------------------
BakTexas(1) No Azerbaijan
- -------------------------------------------------------------------------------------
Bay Drilling Corporation No Louisiana
- -------------------------------------------------------------------------------------
Channelview Real Property, Inc. No Delaware
- -------------------------------------------------------------------------------------
Delta Crewboats, Inc. No Louisiana
- -------------------------------------------------------------------------------------
Energy Ventures Foreign Sales Corporation No Barbados
- -------------------------------------------------------------------------------------
Energy Ventures (Cyprus) Limited No Cyprus
- -------------------------------------------------------------------------------------
Energy Ventures Far East Limited No Hong Kong
- -------------------------------------------------------------------------------------
Energy Ventures International, Inc. No Cayman Islands
- -------------------------------------------------------------------------------------
Energy Ventures Mid East, Inc. No Cayman Islands
- -------------------------------------------------------------------------------------
Engemaq S.A. No Brazil
- -------------------------------------------------------------------------------------
ENGY, Inc. No Delaware
- -------------------------------------------------------------------------------------
EV Offshore, Inc. No Louisiana
- -------------------------------------------------------------------------------------
EVI (Barbados), Inc. No Barbados
- -------------------------------------------------------------------------------------
EVI Oil Tools, Inc. (formerly EVI-Highland Pump Yes Delaware
Company)
- -------------------------------------------------------------------------------------
EVI International, Inc. No Delaware
- -------------------------------------------------------------------------------------
EVI Management, Inc. No Delaware
- -------------------------------------------------------------------------------------
Grant Prideco, Inc. Yes Delaware
- -------------------------------------------------------------------------------------
Grant Prideco, S.A. No Switzerland
- -------------------------------------------------------------------------------------
Grant Tubular Finishing Ltd. No Hungary
- -------------------------------------------------------------------------------------
Grant T.F. de Mexico S.A. de C.V.(2) No Mexico
- -------------------------------------------------------------------------------------
Highland/Corod Inc. No Alberta
- -------------------------------------------------------------------------------------
(1) 51% owned.
(2) Excludes directors qualifying shares.
30
=====================================================================================
Significant Jurisdiction of
Name of Subsidiary Subsidiaries Organization
=====================================================================================
Highland-Shengli Machinery Company No China
Limited, Dongying City(3)
- -------------------------------------------------------------------------------------
Mallard Bay Drilling, Inc. Yes Louisiana
- -------------------------------------------------------------------------------------
Mallard Bay Drilling (Nigeria) Limited(3) No Nigeria
- -------------------------------------------------------------------------------------
Mallard Bay Drilling, Inc., Suits Drilling No Texas
Company, et al. (Partnership)(4)
- -------------------------------------------------------------------------------------
Mallard Drilling International Ltd. No Cayman Islands
- -------------------------------------------------------------------------------------
PEPESA(5) No Peru
- -------------------------------------------------------------------------------------
Prideco de Venezuela, S.A.(6) No Venezuela
- -------------------------------------------------------------------------------------
Prideco Europe Limited No Scotland
- -------------------------------------------------------------------------------------
Prideco Holdings, Inc. No Delaware
- -------------------------------------------------------------------------------------
Prideco, Inc. Yes Texas
- -------------------------------------------------------------------------------------
Suits Peru LLC(6) No Oklahoma
- -------------------------------------------------------------------------------------
(3) 60% owned.
(4) 50% owned, but Mallard Bay Drilling, Inc. is entitled to certain
preferential distributions in excess of 50%.
(5) Wholly-owned by Suits Peru LLC
(6) 49% owned.
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SCHEDULE III
INDIVIDUAL STOCKHOLDERS
Number of
Shares
Individual Stockholders to be Sold
----------------------- ----------
Sandra Hamilton. . . . . . . . . . . . . . . . . . . . 96,533
c/o James G. Kiley
Energy Ventures, Inc.
5 Post Oak Park, Suite 1760
Houston, Texas 77027-3415
William Chunn . . . . . . . . . . . . . . . . . . . . 63,467
c/o James G. Kiley
Energy Ventures, Inc.
5 Post Oak Park, Suite 1760
Houston, Texas 77027-3415
Donald Morris. . . . . . . . . . . . . . . . . . . . . 40,000
c/o James G. Kiley ---------
Energy Ventures, Inc.
5 Post Oak Park, Suite 1760
Houston, Texas 77027-3415
Total . . . . . . . . . . . . . . . . . 200,000
=========
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EXHIBIT A
FORM OF OPINION OF FULBRIGHT & JAWORSKI L.L.P.
1. The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the State of Delaware with
full corporate power and authority to own or lease and operate its properties
and to conduct its business as described in the Prospectus.
2. Each of the Subsidiaries designated as a
"Significant Subsidiary" on Schedule II hereto (a "Significant Subsidiary" and
collectively the "Significant Subsidiaries") is a corporation duly incorporated
and validly existing in good standing under the laws of the jurisdiction of its
organization, with due corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus; and
all the outstanding shares of capital stock of each of the Significant
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable, and are held of record by the Company directly, or indirectly
through one of the other Significant Subsidiaries.
3. The Company's authorized capitalization is as set
forth in the Prospectus. The Company has all requisite corporate power and
authority to issue, sell, and deliver the Primary Shares and the Option Shares
in accordance with and upon the terms and conditions set forth in this
Agreement. The issuance of the Primary Shares and the Option Shares has been
duly and validly authorized and, when issued and paid for by the several
Underwriters in accordance with the terms of this Agreement, will be fully paid
and nonassessable. No holder of capital stock of the Company has any
preferential or preemptive right to purchase or acquire any of the Shares under
the General Corporation Law of the State of Delaware or the Company's
certificate of incorporation or bylaws or, to such counsel's knowledge, under
any agreement to which the Company is a party that has been identified to such
counsel by the Company as being material to the Company and the Subsidiaries
taken as a whole. To the knowledge of such counsel, except as disclosed in the
Prospectus, the Company has no outstanding options or warrants to purchase any
shares of the capital stock of the Company or securities convertible into or
exercisable or exchangeable for any shares of the capital stock of the Company.
The Common Stock conforms in all material respects to the description thereof
contained in the Prospectus under the caption "Description of Capital Stock."
4. To such counsel's knowledge, neither the filing of
the Registration Statement nor the offering or sale of the Shares as
contemplated by this Agreement gives rise to any right, other than those which
have been waived or satisfied, for or relating to the registration of any
shares of Common Stock or other securities of the Company.
5. Neither the execution, delivery or performance of
this Agreement nor the offer, sale or delivery of the Shares hereunder will
violate, conflict with, or constitute a breach of or default under, (A) the
certificate of incorporation or bylaws of the Company, (B) any agreement,
indenture, or other instrument relating to the borrowing of money known to such
counsel
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to which the Company or any Significant Subsidiary is a party or by which the
Company or any Significant Subsidiary is bound, or any other agreement
identified to such counsel by the Company as being material to the Company and
the Subsidiaries taken as a whole, or (C) (except with respect to state
securities or Blue Sky laws, as to which such counsel need express no opinion,
and except with respect to the federal securities laws other than as stated in
such counsel's opinion letter) any law, administrative regulation, or court or
governmental decree known to such counsel to be applicable to the Company or
any Significant Subsidiary.
6. No consent, approval, or authorization of any
federal or state governmental authority, agency or body having jurisdiction
over the Company is required to be obtained by the Company in connection with
the consummation of the transactions contemplated in this Agreement, except
such as may be required under the Securities Act, and except as may be required
under state securities or Blue Sky laws (with respect to which such counsel
need express no opinion).
7. The Company has corporate power and authority to
enter into this Agreement and to issue, sell and deliver the Primary Shares and
the Option Shares to you as provided herein, and this Agreement has been duly
authorized, executed and delivered by the Company.
8. The information contained in the Prospectus under
the caption "Description of Capital Stock" to the extent it purports to
summarize the provisions of the documents or agreements specifically referred
to therein or matters of law or legal conclusions is true and correct in all
material respects.
9. The Company is not an "investment company" within
the meaning of the 1940 Act.
10. To the knowledge of such counsel, there are no
legal or governmental proceedings pending or threatened to which the Company or
any of the Significant Subsidiaries is a party or to which the business or
property of the Company or any of the Significant Subsidiaries is subject that
are required to be disclosed in the Registration Statement or the Prospectus
and that are not so disclosed.
11. The Registration Statement has become effective
under the Securities Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for such purpose have been instituted or are pending or
threatened. Except as to (a) the financial statements or other financial or
statistical data contained in or incorporated by reference into the
Registration Statement or the Prospectus or (b) any information furnished in
writing by the Underwriters or the Selling Stockholders to the Company
specifically for use therein, as to which such counsel need not express any
opinion, the Registration Statement and the Prospectus comply as to form in all
material respects with the requirements of the Securities Act and the rules and
regulations thereunder. Except as to the financial statements or other
financial or statistical data contained therein, as to which such counsel
2
34
need not express any opinion, each document incorporated by reference in the
Registration Statement as filed under the Exchange Act complied when so filed
as to form in all material respects with the applicable requirements of the
Exchange Act and the rules and regulations thereunder. There are no contracts
or other documents known to such counsel that are required to be filed as
exhibits to the Registration Statement other than those filed as exhibits
thereto.
12. The Secondary Shares have been listed on the NYSE,
and the Primary Shares and the Option Shares have been approved for listing on
the NYSE, subject only to official notice of issuance.
The foregoing opinions shall cover the laws of the United States,
the State of Texas, the State of Louisiana and the State of New York and the
corporate laws of the State of Delaware. In rendering such opinions, such
counsel may rely, to the extent it considers such reliance proper, (A) upon an
opinion or opinions, each dated each Closing Date, of other counsel retained by
it or the Company as to the laws of the State of Louisiana or any other
jurisdiction, provided that each such local counsel is acceptable to you and a
copy of each such opinion is delivered to you and (B) upon certificates and
representations of officers of the Company and the Subsidiaries and of
government officials. Such opinions may also be subject to customary
qualifications and limitations.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and representatives of the Company,
officers and representatives of the Selling Stockholders, counsel to the
Selling Stockholders, counsel to the Underwriters, representatives of the
independent public accountants of the Company, and representatives of the
Underwriters at which 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 responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement and the
Prospectus (except to the extent stated above in its opinion), on the basis of
the foregoing (relying as to materiality to a large extent upon the statements
of officers and other representatives of the Company), no facts have come to
the attention of such counsel that lead it to believe that the Registration
Statement, as of its effective date, contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein not misleading, and no facts have come to the attention of
such counsel that lead it to believe that the Prospectus, as of its issue date
or as of the applicable Closing Date, contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; it being understood that such counsel need express no opinion
as to the financial statements or other statistical or financial data included
in the Registration Statement or the Prospectus.
3
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EXHIBIT B
FORM OF OPINION OF COUNSEL GRIGGS & HARRISON, P.C.
1. GulfMark is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware.
2. Neither the execution, delivery or performance of this
Agreement nor the offer, sale or delivery of the GulfMark Shares hereunder will
violate, conflict with, or constitute a breach of or default under, (A) the
certificate of incorporation or bylaws of GulfMark, (B) any agreement,
indenture, or other instrument relating to the borrowing of money known to such
counsel to which GulfMark is a party or by which it is bound, or any other
agreement identified to such counsel by GulfMark as being material to GulfMark,
or (C) (except with respect to state securities or Blue Sky laws, as to which
such counsel need express no opinion, and except with respect to the federal
securities laws other than as stated in such counsel's opinion letter) any law,
administrative regulation, or court or governmental decree known to such
counsel to be applicable to GulfMark or any Significant Subsidiary.
3. No consent, approval, or authorization of any federal or
state governmental authority, agency or body having jurisdiction over GulfMark
is required to be obtained by GulfMark in connection with the consummation of
the transactions contemplated in this Agreement, except such as may be required
under the Securities Act, and except as may be required under state securities
or Blue Sky laws (with respect to which such counsel need express no opinion).
4. This Agreement has been duly and validly authorized,
executed and delivered by GulfMark.
5. GulfMark has obtained any approval required by law, to
sell, assign, transfer, and deliver the GulfMark Shares in the manner provided
in this Agreement, except for permits and similar authorizations required under
state securities or Blue Sky laws (as to which such counsel need express no
opinion).
6. Delivery of certificates for the GulfMark Shares to be
sold by GulfMark pursuant to this Agreement will pass the rights GulfMark has
in the GulfMark Shares free of any adverse claim to each Underwriter who is a
bona fide purchaser, has not been a party to any fraud or illegality affecting
the GulfMark Shares and has not been a prior holder of the GulfMark Shares,
and, to the knowledge of such counsel, there are no adverse claims with respect
to the GulfMark Shares.
7. The officers of GulfMark have been duly authorized by
GulfMark to execute and deliver this Agreement on behalf of GulfMark and to
deliver the GulfMark Shares to be sold by GulfMark and receive payment therefor
pursuant hereto.
36
8. GulfMark has corporate power and authority to enter into
this Agreement and to sell and deliver the Shares to you as provided herein,
and this Agreement has been duly authorized, executed and delivered by
GulfMark.
The foregoing opinions shall cover the laws of the United States, the
State of Texas and the corporate laws of the State of Delaware. In rendering
such opinions, such counsel may rely, to the extent it considers such reliance
proper, upon certificates and representations of officers of GulfMark and of
government officials. Such opinions may also be subject to customary
qualifications and limitations.
2
37
EXHIBIT C
FORM OF OPINION OF COUNSEL VINSON & ELKINS L.L.P.
With regard to each of the Individual Stockholders:
1. Neither the execution, delivery or performance of this
Agreement, the Power of Attorney or the Custody Agreement nor the offer, sale
or delivery of the Shares to be sold by the Individual Stockholder hereunder
will violate, conflict with, or constitute a breach of or default under (A) any
agreement, indenture, or other instrument relating to the borrowing of money
known to such counsel to which the Individual Stockholder is a party or by
which it is bound, or any other agreement identified to such counsel by the
Individual Stockholder as being material to the Individual Stockholder, or (B)
(except with respect to state securities or Blue Sky laws, as to which such
counsel need express no opinion, and except with respect to the federal
securities laws other than as stated in such counsel's opinion letter) any law,
administrative regulation, or court or governmental decree known to such
counsel to be applicable to the Individual Stockholder.
2. No consent, approval, or authorization of any federal or
state governmental authority, agency or body having jurisdiction over the
Individual Stockholder is required to be obtained by the Individual Stockholder
in connection with the consummation of the transactions contemplated in this
Agreement, the Power of Attorney or the Custody Agreement, except such as may
be required under the Securities Act, and except as may be required under state
securities or Blue Sky laws (with respect to which such counsel need express no
opinion).
3. This Agreement, the Power of Attorney and the Custody
Agreement have been duly and validly authorized, executed and delivered by the
Individual Stockholder.
4. The Individual Stockholder has obtained any approval
required by law, to sell, assign, transfer, and deliver the Shares to be sold
by the Individual Stockholder hereunder in the manner provided in this
Agreement, except for permits and similar authorizations required under state
securities or Blue Sky laws (as to which such counsel need express no opinion).
5. Delivery of certificates for the Shares to be sold by the
Individual Stockholder pursuant to this Agreement will pass the rights the
Individual Stockholder has in the such Shares free of any adverse claim to each
Underwriter who is a bona fide purchaser, has not been a party to any fraud or
illegality affecting such Shares and has not been a prior holder of such
Shares, and, to the knowledge of such counsel, there are no adverse claims with
respect to such Shares.
The foregoing opinions shall cover the laws of the United States, the
State of Texas and the corporate laws of the State of Delaware. In rendering
such opinions, such counsel may rely, to the extent it considers such reliance
proper, upon certificates and representations of the Individual Stockholder and
of government officials. Such opinions may also be subject to customary
qualifications and limitations.
38
EXHIBIT D
[Letterhead of officer, director or major stockholder of
Energy Ventures, Inc.]
Energy Ventures, Inc.
Public Offering of Common Stock
July ____, 1996
LEHMAN BROTHERS INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
JEFFERIES & COMPANY, INC.
PRUDENTIAL SECURITIES INCORPORATED
SCHRODER WERTHEIM & CO. INCORPORATED
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") among Energy Ventures,
Inc., a Delaware corporation (the "Company"), certain stockholders of the
Company, and Lehman Brothers Inc., Donaldson, Lufkin & Jenrette Securities
Corporation, Jefferies & Company, Inc., Prudential Securities Incorporated and
Schroder Wertheim & Co. Incorporated as underwriters, relating to an
underwritten public offering of common stock, par value $1.00 per share (the
"Common Stock"), of the Company.
To induce you to enter into the Underwriting Agreement, the undersigned
agrees that it will not, without the prior written consent of Lehman Brothers
Inc., during the 90 days following the date of the Prospectus (as defined in
the Underwriting Agreement), offer for sale, sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock beneficially owned by the
undersigned or any securities convertible into, or exercisable or exchangeable
for, shares of Common Stock.
If for any reason the Underwriting Agreement is terminated before the
First Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer, director or major
stockholder]
[Name and address of officer, director
or major stockholder]
39
ENERGY VENTURES, INC.
COMMON STOCK
(PAR VALUE $1.00 PER SHARE)
CUSTODY AGREEMENT
July ___, 1996
ENERGY VENTURES, INC.
5 Post Oak Park, Suite 1760
Houston, Texas 77027
Dear Sirs:
1. Introductory. Energy Ventures, Inc., a Delaware
corporation (the "Company"), has filed a registration statement (Reg. No.
333-06715) (together with any amendments thereto, the "Registration Statement")
under the Securities Act of 1933, as amended (the "Act"), in connection with
the proposed public offering and sale by the Company, the undersigned (the
"Selling Stockholder") and certain other stockholders (collectively with the
undersigned, the "Selling Stockholders") of the Company's common stock, par
value $1.00 per share (the "Common Stock").
The Selling Stockholder has executed and delivered a Power of
Attorney (the "Power of Attorney") naming Mr. Bernard J. Duroc-Danner, Mr.
James G. Kiley and Ms. Frances R. Powell, and each of them, as his, her or its
attorney-in-fact (together, with their respective substitutes, each a "Member"
and, collectively, the "Committee"), for certain purposes, including, if
necessary, the execution, delivery and performance of this Agreement in his,
her or its name, place and stead, in connection with the proposed sale by the
Selling Stockholder of the number of shares of Common Stock set forth beneath
the Selling Stockholder's signature below (the "Stock").
2. Appointment of Custodian. A custody arrangement is
hereby established by the Selling Stockholder with the Company (for this
purpose, the "Custodian") with respect to the Stock, and the Custodian is
hereby instructed to act in accordance with this Agreement and any written
instructions of any Member on behalf of the Committee which are not
inconsistent with this Agreement or applicable law.
40
3. Delivery of Stock to the Custodian. There are
herewith delivered to the Custodian, and the Custodian hereby acknowledges
receipt of, a certificate or certificates representing the Stock, each of which
certificate or certificates has been duly endorsed in blank for transfer or is
accompanied by a duly executed stock power, IN EACH CASE WITH ALL SIGNATURES
GUARANTEED BY A BANK, BROKER, DEALER, CREDIT UNION, SAVINGS ASSOCIATION OR
OTHER ENTITY THAT IS A MEMBER IN GOOD STANDING OF A RECOGNIZED MEDALLION
PROGRAM APPROVED BY THE SECURITIES TRANSFER ASSOCIATION INC. Such certificate
or certificates are to be held by the Custodian for the account of the Selling
Stockholder and are to be dealt with by the Custodian in accordance with this
Agreement.
4. Delivery of Stock to the Underwriters. The Custodian
is authorized and directed by the Selling Stockholder:
(a) to hold in its custody the certificates
representing the Stock delivered by or at the direction of the Selling
Stockholder;
(b) on or immediately prior to the First Closing
Date (as defined in the Underwriting Agreement referred to below) and upon
written instructions of the Committee and delivery of stock powers duly
executed by the Committee on behalf of the Selling Stockholder (if not
previously received from the Selling Stockholder), (i) to cause such Stock to
be transferred on the books of the Company into such denominations and name or
names as the Custodian shall have been instructed by the Underwriters (as
hereinafter defined) in accordance with the Underwriting Agreement (the
"Underwriting Agreement") to be entered into by and among the Company, Gulfmark
International, Inc., the Committee, as attorneys-in-fact of certain of the
Selling Stockholders, and the underwriters named in Schedule I thereto (the
"Underwriters"); (ii) to cause to be issued, against surrender of the
certificates representing the Stock, a new certificate or certificates
representing such Stock, free of any restrictive legend, registered in such
denominations and name or names as instructed by the Underwriters; (iii) to
deliver such new certificates representing such Stock to the Underwriters, as
instructed by the Underwriters on the First Closing Date for their account or
accounts against full payment to the Custodian of the purchase price therefor
in accordance with the Underwriting Agreement; and (iv) to give receipt for
such payment;
(c) to disburse the net proceeds received from
the sale of Stock in the following manner: (i) to itself, as agent for the
Selling Stockholder, a reserve amount to be designated in writing by the
Committee from which amount the Custodian shall pay, as soon as reasonably
practicable, any applicable stock transfer taxes; and (ii) to the Selling
Stockholder, pursuant to the written instructions of the Committee, on the next
business day following the First Closing Date, a sum equal to the share of the
proceeds to which the Selling Stockholder is entitled, as determined by the
Committee, less any reserve amount referred to in clause (i) above designated
by the Committee.
5. Delivery of Stock Remaining In Custody. Subject in
each case to the indemnification obligations set forth in Section 8, the
Custodian shall cause to be issued and
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41
delivered to the Selling Stockholder, as soon as practicable after the First
Closing Date, certificates representing any shares of Common Stock deposited by
the Selling Stockholder that remain in the custody of the Custodian.
Certificates returned to the Selling Stockholder shall be returned with any
related stock powers, and any new certificates issued to the Selling
Stockholder with respect to such shares of Common Stock shall bear any then
appropriate legends. Subject to Section 8, this Agreement shall thereupon
terminate.
6. Irrevocability of Selling Stockholder's Obligations
and Authorizations. This Agreement is for the express benefit of the Company,
the other Selling Stockholders and the Underwriters. The obligations and
authorizations of the Selling Stockholder hereunder are irrevocable and shall
not be terminated by operation of law, whether by the death, disability,
incapacity, liquidation or dissolution of the Selling Stockholder or by the
occurrence of any other event (including without limitation the termination of
any trust, if the Selling Stockholder is a trust, the termination of any trust
for which the Selling Stockholder is acting as a fiduciary or fiduciaries or
the death of any fiduciary or fiduciaries of such trust), and if, after the
execution hereof, the Selling Stockholder shall die or become disabled or
incapacitated or is liquidated or dissolved, or if any other event shall occur
before the delivery of the Stock hereunder to the Underwriters, such Stock
shall be delivered to the Underwriters in accordance with the terms and
conditions of this Agreement, as if such event had not occurred, regardless of
whether or not the Custodian shall have received notice of such event.
Notwithstanding the foregoing, if the Underwriting Agreement
shall not have been executed and delivered prior to December 31, 1996, then
from and after such date the undersigned shall have the power, by giving
written notice to any Member, the Custodian and the Company, in care of its
Vice President Finance and Treasurer, to terminate this Agreement, subject to
any and all lawful action taken by the Custodian pursuant to this Agreement
prior to the actual receipt of such notice. Promptly thereafter, the Custodian
shall return to such Selling Stockholder any and all certificates representing
shares of Common Stock and related stock powers previously deposited pursuant
hereto.
7. Ownership of Stock. Until payment of the purchase
price for the Stock has been made to the Selling Stockholder or to the
Custodian for the account of the Selling Stockholder, the Selling Stockholder
shall remain the owner of (and shall retain the right to receive dividends and
distributions on, and to vote) the number of shares of Common Stock delivered
by him, her or it to the Custodian hereunder. Until such payment in full has
been made or until the offering of the Stock has been terminated, the Selling
Stockholder agrees that he, she or it will not give,
sell, pledge, hypothecate, grant any lien on, transfer, deal with or contract
with respect to the shares of Common Stock delivered hereunder or any interests
therein.
8. Indemnification. The Custodian shall assume no
responsibility or liability whatsoever to any person other than to deal with
the certificates representing shares of Common Stock delivered hereunder and
the proceeds from the sale of the Stock represented thereby in accordance with
the provisions hereof, and the Selling Stockholder hereby agrees to indemnify
the Custodian for and to hold the Custodian harmless against any losses,
claims, damages or
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42
liabilities incurred on its part arising out of or in connection with its
acting as the Custodian pursuant hereto, as well as any legal or other expenses
reasonably incurred in connection with investigating and defending any such
loss, claim, damage or liability as such expenses are incurred, except to the
extent any such loss, claim, damage or liability is due to the gross negligence
or willful misconduct of the Custodian. The Selling Stockholder agrees that
the Custodian may consult with counsel of its own choice (who may be counsel
for the Selling Stockholder), and the Custodian shall have full and complete
authorization and protection for any action taken or suffered by the Custodian
hereunder in good faith and in accordance with the opinion or advice of such
counsel. THE SELLING STOCKHOLDER UNDERSTANDS AND AGREES THAT THE PROVISIONS OF
THIS SECTION 8 PROVIDE FOR INDEMNIFICATION BY THE SELLING STOCKHOLDER OF THE
CUSTODIAN FOR THE NEGLIGENCE OF THE CUSTODIAN. This Section 8 shall survive
any termination of this Agreement.
9. Representations and Warranties of Selling
Stockholder. The Selling Stockholder hereby represents and warrants that: (a)
he, she or it has, and at the time of delivery of his, her or its Stock to the
Underwriters he, she or it will have, full power and authority to enter into
this Agreement and the Power of Attorney, and to carry out the terms and
provisions hereof and thereof; and (b) this Agreement and the Power of Attorney
are the valid and binding agreements of such Selling Stockholder.
10. Joinder of Spouse of Selling Stockholder. If the
Selling Stockholder has a spouse, such spouse has joined in the execution of
this Agreement for all purposes, and all references to "the undersigned" or
"the Selling Stockholder" herein shall mean both the Selling Stockholder who is
a signatory to this Agreement and to such spouse as if such spouse were also a
Selling Stockholder. The joinder of such spouse, however, has been made
without regard to the ownership of the Stock.
11. Custodian's Acceptance of Authorization. The
Custodian's acceptance of this Agreement by the execution hereof shall
constitute an acknowledgment by the Custodian of the authorization herein
conferred and shall evidence the Custodian's agreement to carry out and perform
this Agreement in accordance with its terms.
12. Notices. Any notice given hereunder shall be deemed
given if in writing and mailed by certified or registered mail (return receipt
requested) or delivered in person, or if given by telephone, telecopy or
telegraph if subsequently confirmed in writing in the manner provided above:
(i) if to the Selling Stockholder, to his, her or its address set forth on the
signature pages of this Agreement; and (ii) if to the Custodian, to it at its
address set forth on the first page of this Agreement. The Custodian shall be
entitled to act and rely upon any statement, request, notice or instruction
with respect to this Agreement given to it by the Committee on behalf of the
Selling Stockholder, not only as to the authorization, validity and
effectiveness thereof, but also as to the truth and accuracy of any information
therein contained.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the Custodian, the Selling Stockholder and their
respective heirs, legal representatives,
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43
distributees, successors and assigns; provided, however, that the Custodian
may not assign any of its obligations hereunder.
14. Separability. In case any provision in this
Agreement shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
15. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same agreement.
Execution by the Custodian of one counterpart hereof and its delivery thereof
to the Committee shall constitute the valid execution and delivery of this
Agreement by the Custodian.
16. Applicable Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
17. Consent to Jurisdiction. The Selling Stockholder
hereby irrevocably (i) submits to the nonexclusive jurisdiction of any New York
State or Federal court sitting in New York City and any appellate court from
any thereof in any action or proceeding arising out of or relating to this
Agreement or the sale of the Stock pursuant to the Underwriting Agreement, and
(ii) agrees that all claims in respect of such action or proceeding may be
heard and determined in such New York State court or in such Federal court.
The Selling Stockholder hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
any such action or proceeding and any objection it may now or hereafter have as
to the venue of any such action or proceeding. The Selling Stockholder also
irrevocably consents, to the fullest extent permitted by law, to the service of
any and all process in any such action or proceeding by the mailing by
certified mail of copies of such process to the Selling Stockholder at its
address specified on its signature page hereto. The Selling Stockholder
agrees, to the fullest extent permitted by law, that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
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Very truly yours,
______________________________________
Full Legal Name of Selling Stockholder
(Print or Type)
By:____________________________________ *
(Authorized Signature)
Name: _________________________________
Title: ________________________________
Address of Selling Stockholder:
_______________________________________
_______________________________________
STOCK TO BE SOLD:
________ shares of Common Stock
________________________________________
Name of Beneficial Owner
(if different from registered owner)
__________________________________
* To be signed in exactly the same manner as the shares of Common Stock
are registered.
NOTE: SIGNATURE MUST BE ACKNOWLEDGED BY A NOTARY PUBLIC.
SPOUSE'S SIGNATURE REQUIRED, IF APPLICABLE.
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I am the spouse of __________________________________, who is
a signatory to the foregoing Custody Agreement, and I acknowledge that I have
read such Custody Agreement and that I know its contents. I hereby consent to
the entering into of such Custody Agreement, approve the provisions thereof and
agree that such Custody Agreement shall be binding upon me with the same effect
as if I had executed such instrument personally.
By:___________________________________**
__________________________________
** To be signed in exactly the same manner as the shares of Common
Stock are registered, if registered jointly.
NOTE: SIGNATURE MUST BE ACKNOWLEDGED BY A NOTARY PUBLIC.
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46
The foregoing Custody Agreement is
hereby accepted as of the date
first written above.
ENERGY VENTURES, INC.
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
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STATE OF _________________ )
)
COUNTY OF ________________ )
[For a Selling Stockholder that is a corporation:] On the
____ day of _________, 1996, before me personally came __________________, to
me known, who, being by me duly sworn, did depose and say that he or she is the
___________________ of ____________________, a corporation which executed the
foregoing instrument, and that he or she signed his or her name thereto by
authority of the Board of Directors of said corporation.
_______________________________________
Notary Public
[Notarial Seal] My commission expires:
_________________________________,19___
STATE OF _________________ )
)
COUNTY OF ________________ )
[For a Selling Stockholder that is a limited liability
company:] On the ____ day of _________, 1996, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and
say that he or she is the ___________________ of ______________, a limited
liability company which executed the foregoing instrument, and that he or she
signed his or her name thereto by authority of the members of said limited
liability company.
________________________________________
Notary Public
[Notarial Seal] My commission expires:
_________________________________, 19___
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48
STATE OF _________________ )
)
COUNTY OF ________________ )
[For a Selling Stockholder that is a limited partnership:] On
the ____ day of _________, 1996, before me personally came __________________,
to me known, who, being by me duly sworn, did depose and say that he or she is
the ___________________ of ____________________, a general partner of
___________________________, a limited partnership which executed the foregoing
instrument, and that he or she signed his or her name thereto pursuant to the
authority under the partnership agreement of said limited partnership.
________________________________________
Notary Public
[Notarial Seal] My commission expires:
_________________________________, 19___
STATE OF _________________ )
)
COUNTY OF ________________ )
[For a Selling Stockholder that is a trust:] On the ____ day
of ________________, 1996, before me personally came _________________________,
to me known, who, being by me duly sworn, did depose and say that he or she is
the trustee of ________________________, a trust which executed the foregoing
instrument, and that he or she signed his or her name thereto pursuant to the
authority under the governing instruments of said trust.
________________________________________
Notary Public
[Notarial Seal] My commission expires:
_________________________________, 19___
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STATE OF _________________ )
)
COUNTY OF ________________ )
[For a Selling Stockholder that is a natural person:] On the
____ day of ________________, 1996, before me personally came
_________________________, to me known, who in my presence did sign his or her
name to the foregoing instrument.
________________________________________
Notary Public
[Notarial Seal] My commission expires:
_________________________________, 19___
STATE OF _________________ )
)
COUNTY OF ________________ )
[For a spouse of a Selling Stockholder that is a natural
person:] On the ____ day of ________________, 1996, before me personally came
_________________________, to me known, who in my presence did sign his or her
name to the foregoing instrument.
________________________________________
Notary Public
[Notarial Seal] My commission expires:
_________________________________, 19___
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50
ENERGY VENTURES, INC.
COMMON STOCK
(PAR VALUE $1.00 PER SHARE)
POWER OF ATTORNEY
(IRREVOCABLE)
July ___, 1996
Mr. Bernard J. Duroc-Danner
Mr. James G. Kiley
Ms. Frances R. Powell
together, the Committee
Energy Ventures, Inc.
5 Post Oak Park, Suite 1760
Houston, Texas 77027-3415
Dear Sirs and Madam:
1. Introductory. Energy Ventures, Inc., a Delaware
corporation (the "Company"), has filed a registration statement (File No.
333-06715) (together with any amendments thereto, the "Registration Statement")
under the Securities Act of 1933, as amended (the "Act"), in connection with
the proposed public offering and sale (the "Offering") by the Company, the
undersigned (the "Selling Stockholder") and certain other stockholders
(collectively with the undersigned, the "Selling Stockholders") of the
Company's Common Stock, par value $1.00 per share (the "Common Stock").
The Selling Stockholder proposes to sell certain shares of
Common Stock and to include such shares among the shares covered by the
Registration Statement. The maximum number of shares of Common Stock which the
undersigned proposes to sell (the "Stock") is set forth beneath the signature
of the Selling Stockholder below.
Concurrently with the execution and delivery of this Power of
Attorney, the undersigned is delivering, or requesting you to deliver, to the
Company, as custodian (the "Custodian"), certificates representing the Stock,
pursuant to a Custody Agreement executed by or on behalf of the undersigned and
delivered to the Custodian concurrently herewith (the "Custody Agreement").
51
2. Appointment of Attorneys-In-Fact. In connection with
the foregoing, the Selling Stockholder hereby irrevocably makes, constitutes
and appoints Mr. Bernard Duroc-Danner, Mr. James G. Kiley and Ms. Frances R.
Powell (each a "Member") and each of their respective substitutes under Section
4, the true and lawful attorneys-in-fact of the undersigned (the Members or any
of them or their respective substitutes, being herein referred to collectively
as the "Committee," which Committee shall, for all purposes under this Power of
Attorney, act by a majority of the Members, unless otherwise specifically
provided herein), with full power and authority, in the name, place and stead
and for and on behalf of the Selling Stockholder:
(a) to appoint a successor to the Custodian in
the event of the Custodian's resignation;
(b) for the purpose of effecting the sale of the
Stock, to execute and deliver the Underwriting Agreement (the "Underwriting
Agreement") to be entered into by and among the Company, GulfMark
International, Inc., the Committee, as attorneys-in-fact of certain of the
Selling Stockholders, and the underwriters named in Schedule I thereto (the
"Underwriters"), with full power to:
(i) approve and execute the final form of the
Underwriting Agreement, with such changes, additions and amendments to
the drafts thereof provided to the Selling Stockholders, including the
insertion of dates and prices, as the Committee shall, in its sole
discretion, deem advisable,
(ii) carry out and comply with all the provisions
of the Underwriting Agreement, including the making on behalf of the
undersigned of the representations and warranties to and the
agreements with the Underwriters set forth in the Underwriting
Agreement and the delivery of any certificates contemplated thereby,
and
(iii) agree with the Underwriters upon the price at
which the Stock shall be sold to the Underwriters, provided that such
price per share shall be the same as the price at which the Company
and the other Selling Stockholders sell shares of Common Stock to the
Underwriters;
(c) to endorse, transfer and deliver certificates
representing the Stock to or on the order of the Underwriters or to their
nominee or nominees, and to give such orders and instructions to the Custodian
as the Committee may in its sole discretion determine with respect to (i) the
transfer on the books of the Company of the Stock in order to effect the sale
thereof to the Underwriters (including the names in which new certificates
representing such Stock are to be issued and the denominations thereof); (ii)
the delivery to or for the account of the Underwriters of the certificates
representing the Stock against receipt by the Custodian of the purchase price
to be paid therefor; (iii) the remittance to the Selling Stockholder of the
Selling Stockholder's share of the net proceeds, after payment of expenses
described in the Custody Agreement, from any sale of Stock; and (iv) the return
to the Selling Stockholder of certificates
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52
representing the number of shares of Common Stock (if any) deposited with the
Custodian but not sold by the Selling Stockholder pursuant to the Underwriting
Agreement for any reason;
(d) to retain Vinson & Elkins L.L.P. as legal
counsel for the Selling Stockholder in connection with any and all matters
referred to herein, as may be deemed appropriate in the sole discretion of any
Member;
(e) to take for the Selling Stockholder all steps
deemed necessary or advisable by any Member or the Committee, in their sole
discretion, in connection with the registration of the Stock under the Act,
including without limitation filing amendments to the Registration Statement,
requesting acceleration of effectiveness of the Registration Statement and such
other steps as any Member or the Committee may in their sole discretion deem
necessary or advisable;
(f) to join, in the Committee's sole discretion,
with the Company in withdrawing the Registration Statement if the Company
should decide to withdraw such registration;
(g) if necessary, to endorse (in blank or
otherwise) on behalf of the Selling Stockholder the certificate or certificates
representing the Stock, or a stock power or powers attached to such certificate
or certificates;
(h) to agree upon the allocation and to arrange
payment therefor of the expenses of the Offering allocable to the Selling
Stockholders among the Selling Stockholders, including the undersigned; and
(i) to make, execute, acknowledge and deliver all
such other contracts, orders, stock powers, receipts, notices, requests,
instructions, certificates, letters and other writings and documents, to
receive notices on behalf of the Selling Stockholder pursuant to the
Underwriting Agreement and the Custody Agreement, and, in general, to do all
things and to take all action which any Member or the Committee in their sole
discretion may consider necessary or proper in connection with or to carry out
the aforesaid sale of Stock, as fully as could the Selling Stockholder if
personally present and acting.
3. Irrevocability of Power of Attorney. This Power of
Attorney and all authority conferred hereby is granted and conferred subject to
and in consideration of the interests of the Company, the Underwriters and the
other Selling Stockholders and, for the purpose of completing the transactions
contemplated by the Underwriting Agreement, the Custody Agreement and this
Power of Attorney, this Power of Attorney and all authority conferred hereby
shall, except as set forth in the following paragraph, be irrevocable and shall
not be terminated by operation of law, whether by the death, disability,
incapacity, liquidation or dissolution of the Selling Stockholder or by the
occurrence of any other event (including without limitation the termination of
any trust, if the Selling Stockholder is a trust, the termination of any trust
for which
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the Selling Stockholder is acting as a fiduciary or fiduciaries or the death of
any fiduciary or fiduciaries of any such trust), and if, after the execution
hereof, the Selling Stockholder shall die or become disabled or incapacitated
or is liquidated or dissolved, or if any other such event shall occur before
the completion of the transactions contemplated by the Underwriting Agreement,
the Custody Agreement and this Power of Attorney, the Committee shall
nevertheless be authorized and directed to complete all such transactions as if
such death, disability, incapacity, liquidation, dissolution, termination or
other event had not occurred and regardless of notice thereof.
Notwithstanding the foregoing, if the Underwriting Agreement
shall not have been executed and delivered prior to December 31, 1996, then
from and after such date the undersigned shall have the power, by giving
written notice to any Member and to the Company, in care of its Vice President
Finance and Treasurer to terminate this Power of Attorney, subject to any and
all lawful action taken by any Member pursuant to this Power of Attorney prior
to the actual receipt of such notice.
4. Substitutions of Attorneys-In-Fact. Each Member
shall have full power to make and substitute any person in the place and stead
of such Member, and the Selling Stockholder hereby ratifies and confirms all
that each Member or substitute or substitutes shall do by virtue of these
presents. All actions hereunder that may be taken by a Member may be taken by
any one Member or his or her substitute. In the event of the death, disability
or incapacity of any Member, the remaining Member or Members shall appoint a
substitute therefor.
5. Representations, Warranties and Agreements of the
Selling Stockholder. The Selling Stockholder hereby represents, warrants and
agrees that:
(a) the Selling Stockholder has requisite
authority to execute and deliver this Power of Attorney, the Custody Agreement
and the Underwriting Agreement and to incur and perform each of its obligations
provided herein and therein;
(b) this Power of Attorney and the Custody
Agreement have been duly executed and delivered by the Selling Stockholder, the
transactions contemplated by the Underwriting Agreement (including, without
limitation, (i) the provisions thereof relating to the indemnification of the
Underwriters against certain losses, claims, damages or liabilities to which
the Underwriters may become subject in connection with the offering and sale of
the Shares (as defined in the Underwriting Agreement) and (ii) the lock-up
provisions thereof, which will restrict sales or other transfers by the Selling
Stockholder during the 90-day period beginning on the date of the Prospectus
relating to the underwritten offering contemplated by the Underwriting
Agreement) have been duly authorized by the Selling Stockholder and, when the
Underwriting Agreement is executed and delivered by a Member on behalf of the
Selling Stockholder, the Underwriting Agreement will be duly executed and
delivered, and this Power of Attorney and the Custody Agreement constitute, and
the Underwriting Agreement, when executed by a Member consistent with this
Power of Attorney, will constitute, the valid and binding agreements of the
Selling Stockholder enforceable against the Selling Stockholder in accordance
with their terms,
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except (A) as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws relating to or
affecting creditors' rights generally, (B) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to certain equitable defenses and to the discretion of the court before which
any proceedings therefor may be brought and (C) as rights to indemnity and
contribution hereunder may be limited by applicable securities laws or the
policies underlying such laws;
(c) neither the sale of the Shares to be sold by
the Selling Stockholder hereunder, the execution, delivery or performance by
the Selling Stockholder of this Power of Attorney, the Custody Agreement or the
Underwriting Agreement nor the consummation by the Selling Stockholder of the
transactions contemplated hereby (A) requires any consent, approval,
authorization or other order of, or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may be required under the Act or for the compliance
with the securities or the Blue Sky laws of various jurisdictions) or (B)
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, any agreement, indenture, lease or other instrument to
which the Selling Stockholder is a party or by which the Selling Stockholder or
any of his or her properties may be bound, or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Selling Stockholder pursuant to the terms of any agreement or instrument to
which the Selling Stockholder is a party or by which he or she may be bound or
to which any of the property or assets of the Selling Stockholder is subject
which conflict, default, violation, creation or imposition would, for purposes
of this clause (B) only, either individually or in the aggregate, have a
material adverse effect on the business, financial condition or results of
operations of the Selling Stockholder or materially adversely affect the
consummation of the Underwriting Agreement or the sale of the Stock to be sold
by the Selling Stockholder thereunder;
(d) there is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or foreign, now
pending or, to the knowledge of the Selling Stockholder, threatened against the
Selling Stockholder which, considered singly or in the aggregate, may
reasonably be expected to have a material adverse effect on the business,
financial condition or results of operations of the Selling Stockholder or
materially adversely affect the consummation of the Underwriting Agreement or
the sale of the Stock to be sold by the Selling Stockholder thereunder;
(e) the Selling Stockholder has not taken and
will not take, directly or indirectly, any action designed 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 shares of the
Common Stock to facilitate the sale or resale of the Stock;
(f) the Selling Stockholder has, and immediately
prior to the transfer of the Stock to the Underwriters on the First Closing
Date (as such term is defined in the Underwriting Agreement), the Selling
Stockholder will have, good and valid title to the Stock, free and clear of all
liens, encumbrances, equities or claims; and, upon delivery of the Stock and
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payment therefor, as contemplated in this Power of Attorney, the Custody
Agreement and the Underwriting Agreement, good and valid title to the Stock,
free and clear of all liens, encumbrances, equities, or claims, will pass to
the several Underwriters;
(g) all information furnished or which may be
furnished to the Company by or on behalf of the Selling Stockholder in writing
expressly for use in connection with the preparation of the Registration
Statement is and will, as of the Effective Date (as defined in the Underwriting
Agreement) and as of the date on which the Prospectus (as hereinafter defined)
or any amendment or supplement thereto is first used to confirm sales of the
Stock, be true and correct and does not and will not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make such information not misleading;
(h) the Selling Stockholder has been provided
with and carefully reviewed the July 16, 1996 draft of the Underwriting
Agreement and understands the terms and provisions thereof, including, without
limitation, Section 3 involving representations and warranties and Section 9
regarding indemnification;
(i) the Selling Stockholder has been provided
with and carefully reviewed the Registration Statement and will carefully
review each amendment thereto, if any, immediately upon receipt thereof from
the Company and will promptly advise the Committee in writing if:
(i) the name and address of the Selling Stockholder
is not properly set forth in (A) the form of prospectus relating to
the Common Stock, including the Stock, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) under the
Act or (if no such filing is required) as included in the Registration
Statement at the time it becomes effective (the "Prospectus") or (B)
any related preliminary prospectus; or
(ii) the Selling Stockholder has reason to believe
that any information furnished to the Company by or on behalf of the
Selling Stockholder in writing expressly for use in connection with
the Registration Statement, the Prospectus or any related preliminary
prospectus is not true and complete;
(j) the Selling Stockholder has placed in custody
under the Custody Agreement furnished to the Selling Stockholder and duly
executed and delivered by the Selling Stockholder to the Custodian, for
delivery under the Underwriting Agreement, certificates in negotiable form
representing the Stock to be sold by the Selling Stockholder under the
Underwriting Agreement, and the Stockholder agrees that the Stock to be sold by
the Selling Stockholder under the Underwriting Agreement is subject to the
interest of the Underwriters, that the arrangements made by the Selling
Stockholder for custody are irrevocable except as provided in the Custody
Agreement and in this Power of Attorney and that the obligations of the Selling
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Stockholder under the Underwriting Agreement shall not be terminated by
any act of the Selling Stockholder, by operation of law or the occurrence of
any other event;
(k) the Selling Stockholder shall, deliver to the
Underwriters, prior to the First Closing Date, a properly completed and
executed United States Treasury Department Form W-9.
(l) the Selling Stockholder shall not, without the
prior written consent of Lehman Brothers Inc., during the ninety (90) days
following the date of the Prospectus, offer for sale, sell, or otherwise
dispose of any shares of the Common Stock or any securities convertible into,
or exercisable or exchangeable for, shares of Common Stock, other than in
accordance with the Underwriting Agreement;
(m) the Selling Stockholder agrees to deliver to the
Attorneys-in-Fact such documentation as any attorney-in-fact, the Company or
any Underwriter or any of their respective counsel may reasonably request to
effectuate any of the provisions hereof, the Custody Agreement or the
Underwriting Agreement, all of the foregoing to be in form and substance
reasonably satisfactory to the Attorneys-in-Fact and the Underwriters;
(n) the Selling Stockholder has not distributed
and will not distribute any prospectus or other offering material in connection
with the offering and sale of the Stock other than the Prospectus, a related
preliminary prospectus or other material permitted by the Act; and
(o) the Selling Stockholder will notify the
Committee in writing immediately of any changes in the foregoing information
which should be made as a result of developments occurring after the date
hereof and prior to the First Closing Date, and the Committee may consider that
there has not been any such development unless so advised to the contrary by
the Selling Stockholder.
6. Joinder of Spouse of Selling Stockholder. If the
Selling Stockholder has a spouse, such spouse has joined in the execution of
this Power of Attorney for all purposes, and all references to "the
undersigned" or "the Selling Stockholder" herein shall mean both the Selling
Stockholder and such spouse as if such spouse were also a Selling Stockholder.
The joinder of such spouse, however, has been made without regard to the
ownership of the Stock.
7. Reliance. The representations, warranties and
agreements of the Selling Stockholder in this Power of Attorney are made for
the benefit of, and may be relied upon by, the other Selling Stockholders, the
Committee, the Company, the Custodian, the Underwriters and each of their
respective representatives, agents and counsel.
8. Instructions. The Committee shall be entitled to act
and rely upon any written statement, request, notice or instructions respecting
this Power of Attorney given to it by
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the Selling Stockholder, not only as to the authorization, validity and
effectiveness thereof, but also as to the truth and accuracy of any information
therein contained.
9. Indemnification. It is understood that neither the
Committee nor any Member, in such capacity, assumes any responsibility or
liability whatsoever to any person other than to deal with any Stock deposited
with it and the proceeds from the sale of the Stock in accordance with the
provisions hereof. Neither the Committee nor any Member, in such capacity,
makes any representations with respect to, and shall not have any
responsibility whatsoever for, the Registration Statement, the Prospectus or
any related preliminary prospectus nor, except as expressly provided in the
foregoing sentence, for any aspect of the Offering, and none of such persons
shall be liable for any error of judgment or for any act done or omitted or for
any mistake of fact or law except to the extent, and only to the extent, of the
individual gross negligence or willful misconduct of any such Member. Without
limiting the generality of the foregoing, each Selling Stockholder recognizes
and acknowledges that the Members and counsel to the Selling Stockholders have
not, in such capacity, undertaken to, and will not, conduct any independent
investigation to verify the accuracy or adequacy of the contents of the
Registration Statement, the Prospectus or any preliminary prospectus, or any
document incorporated therein by reference. The Selling Stockholder agrees to
indemnify each Member for and to hold each such Member harmless against any
losses, claims, damages or liabilities incurred, arising out of or in
connection with its acting as a Member under this Power of Attorney, as well as
any legal or other expenses reasonably incurred in connection with
investigating or defending any such loss, claim, damage or liability as such
expenses are incurred, except to the extent that any such loss, claim, damage
or liability is due to the gross negligence or willful misconduct of the Member
seeking indemnification. The Selling Stockholder agrees that the Committee may
consult with counsel of its own choice (who may be counsel for the Company
and/or the Selling Stockholder) and it shall have full and complete
authorization and protection for any action taken or suffered by it hereunder
in good faith and in accordance with the opinion or advice of such counsel.
THE SELLING STOCKHOLDER UNDERSTANDS AND AGREES THAT THE PROVISIONS OF THIS
SECTION 9 PROVIDE FOR INDEMNIFICATION BY THE SELLING STOCKHOLDER OF THE MEMBERS
AND THE COMMITTEE FOR THE NEGLIGENCE OF EACH SUCH PERSON.
10. Other Powers of Attorney. It is understood that the
Committee may, without breaching any express or implied obligation to the
Selling Stockholder hereunder, release or agree to the amendment to or
modification of any other power of attorney granted by any of the other Selling
Stockholders.
11. No Compensation. It is understood that the Committee
shall serve entirely without compensation.
12. Notices. Any notice given hereunder shall be deemed
given if in writing and mailed by certified or registered mail (return receipt
requested) or delivered in person, or if given by telephone, telecopy or
telegraph if subsequently confirmed in writing in the manner provided above:
(i) if to the Selling Stockholder, to his, her or its address set forth beneath
his,
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her or its signature to this Power of Attorney; and (ii) if to the Committee,
to it at the address set forth on the first page of this Power of Attorney.
The Committee shall be entitled to act and rely upon any statement, request,
notice or instruction with respect to this Power of Attorney given to it by the
Selling Stockholder, not only as to the authorization, validity and
effectiveness thereof, but also as to the truth and accuracy of any information
therein contained.
13. Successors. This Power of Attorney will inure to the
benefit of and be binding upon the Members of the Committee and the Selling
Stockholder and their respective heirs, legal representatives, distributees,
successors and assigns.
14. Separability. In case any provision in this Power of
Attorney shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
15. Counterparts. This Power of Attorney may be executed
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
instrument.
16. Applicable Law. This Power of Attorney shall be
governed by, and construed in accordance with, the laws of the State of New
York.
17. Consent to Jurisdiction. The Selling Stockholder
hereby irrevocably (i) submits to the nonexclusive jurisdiction of any New York
State or Federal court sitting in New York City and any appellate court from
any thereof in any action or proceeding arising out of or relating to this
Power of Attorney or the sale of the Stock pursuant to the Underwriting
Agreement, and (ii) agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State court or in such
Federal court. The Selling Stockholder hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of any such action or proceeding and any objection it may now or
hereafter have as to the venue of any such action or proceeding. The Selling
Stockholder also irrevocably consents, to the fullest extent permitted by law,
to the service of any and all process in any such action or proceeding by the
mailing by certified mail of copies of such process to the Selling Stockholder
at its address specified below. The Selling Stockholder agrees, to the fullest
extent permitted by law, that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
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Very truly yours,
------------------------------------------------
Full Legal Name of Selling Stockholder
(Print or type)
*
------------------------------------------------
(Authorized Signature)
By:
--------------------------------------------
Title:
-----------------------------------------
Address of Selling Stockholder:
------------------------------------------------
------------------------------------------------
STOCK TO BE SOLD:
_________ shares of Common Stock
------------------------------------------------
Name of Beneficial Owner of Shares
(if Different from Registered Owner)
____________________
* To be signed in exactly the same manner as the shares of Common Stock
are registered.
NOTE: SIGNATURE MUST BE ACKNOWLEDGED BY A NOTARY PUBLIC.
SPOUSE'S SIGNATURE REQUIRED, IF APPLICABLE.
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I am the spouse of ______________________, who is a signatory
to the foregoing Power of Attorney, and I acknowledge that I have read such
Power of Attorney and that I know its contents. I hereby consent to the
entering into of such Power of Attorney, approve the provisions thereof and
agree that such Power of Attorney shall be binding upon me with the same effect
as if I had executed such instrument personally.
___________________________________**
Signature
__________________
** To be signed in exactly the same manner as the shares of Common Stock
are registered, if registered jointly.
NOTE: SIGNATURE MUST BE ACKNOWLEDGED BY A NOTARY PUBLIC.
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The foregoing Power of Attorney
is hereby accepted as of the
date first written above.
THE COMMITTEE:
___________________________________________________
Bernard J. Duroc-Danner
___________________________________________________
James G. Kiley
___________________________________________________
Frances R. Powell
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STATE OF ________________ )
)
COUNTY OF _______________ )
[For a Selling Stockholder that is a corporation:] On the
____ day of _______________, 1996, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and
say that he or she is the ___________________ of
______________________________, a corporation which executed the foregoing
instrument, and that he or she signed his or her name thereto by authority of
the Board of Directors of said corporation.
_________________________________
Notary Public
[Notarial Seal] My commission expires:
____________________________, 19___
STATE OF ____________ )
)
COUNTY OF ___________ )
[For a Selling Stockholder that is a limited liability
company:] On the ____ day of _________, 1996, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and
say that he or she is the ___________________ of ______________, a limited
liability company which executed the foregoing instrument, and that he or she
signed his or her name thereto by authority of the members of said limited
liability company.
_________________________________
Notary Public
[Notarial Seal] My commission expires:
___________________________, 19__
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63
STATE OF ____________ )
)
COUNTY OF ___________ )
[For a Selling Stockholder that is a limited partnership:] On
the ____ day of _______________, 1996, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and
say that he or she is the ___________________ of
______________________________, a general partner of _________________, a
limited partnership which executed the foregoing instrument, and that he or she
signed his or her name thereto pursuant to the authority under the partnership
agreement of said limited partnership.
_________________________________
Notary Public
[Notarial Seal] My commission expires:
____________________________, 19___
STATE OF ____________ )
)
COUNTY OF ___________ )
[For a Selling Stockholder that is a trust:] On the ____ day
of _______________, 1996, before me personally came __________________, to me
known, who, being by me duly sworn, did depose and say that he or she is the
trustee of ______________________________, a trust which executed the foregoing
instrument, and that he or she signed his or her name thereto pursuant to the
authority under the governing instruments of said trust.
_________________________________
Notary Public
[Notarial Seal] My commission expires:
____________________________, 19___
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STATE OF __________ )
)
COUNTY OF _________ )
[For a Selling Stockholder that is a natural person:] On the
____ day of ________________, 1996, before me personally came
_________________________, to me known, who in my presence did sign his or her
name to the foregoing instrument.
_________________________________
Notary Public
[Notarial Seal] My commission expires:
____________________________, 19___
STATE OF ___________ )
)
COUNTY OF __________ )
[For a spouse of a Selling Stockholder that is a natural
person:] On the ____ day of ________________, 1996, before me personally came
_________________________, to me known, who in my presence did sign his or her
name to the foregoing instrument.
_________________________________
Notary Public
[Notarial Seal] My commission expires:
____________________________, 19___
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