EXHIBIT 1.1
Newpark Resources, Inc.
2,000,000 Shares
Common Stock
($0.01 par value)
Underwriting Agreement
May 15, 2002
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Ladies and Gentlemen:
Newpark Resources, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to Raymond James & Associates, Inc.
(the "Underwriter") 2,000,000 shares of Common Stock, $0.01 par value ("Common
Stock"), of the Company (said shares being hereinafter called the "Securities").
Any reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 16 hereof.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with,
the Underwriter as set forth below in this Section 1(a).
(i) The Company meets the requirements for use of
Form S-3 under the Act and has prepared and filed with the Commission a
registration statement (File Number 333-87840) on Form S-3, including a
related basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including a Preliminary Final Prospectus, each
of which has previously been furnished to you. The Company will next
file with the Commission one of the following: (1) after the Effective
Date of such registration
statement, a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b), (2) prior to the Effective Date
of such registration statement, an amendment to such registration
statement (including the form of final prospectus supplement) or (3) a
final prospectus in accordance with Rules 415 and 424 (b). In the case
of clause (1) the Company has included in such registration statement,
as amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As
filed, such final prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Underwriter shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x).
(ii) On the Effective Date, the Registration
Statement did or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as
defined herein), the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable requirements
of the Act and the Exchange Act and the respective rules thereunder; on
the Effective Date and at the Execution Time, the Registration
Statement 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 in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date and any settlement
date, the Final Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of the Underwriter
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(iii) Each of the Company and its domestic
subsidiaries and subsidiaries which are significant subsidiaries (as
such term is defined in Rule 1-02 of Regulation S-X), all of which are
listed on Schedule II (each such subsidiary, a "Subsidiary," and
collectively, the "Subsidiaries"), has been duly organized and is
validly existing as an entity in good standing under the laws of the
jurisdiction in which it is chartered or organized with full power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus, and
is duly qualified to do business as a foreign entity and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to qualify
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could not reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business (a "Material Adverse Effect").
(iv) All the outstanding shares of capital stock or
other equity interests of each Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable, and, except
as otherwise set forth in the Prospectus, all outstanding shares of
capital stock or other equity interests of the Subsidiaries are owned
by the Company either directly or through wholly owned Subsidiaries
free and clear of any perfected security interest or any other security
interests, claims, liens or encumbrances, except for the liens and
security interests of the lenders under the Company's existing credit
facility.
(v) The Company's authorized equity capitalization is
as set forth in the Prospectus; the capital stock of the Company
conforms in all respects to the description thereof contained in the
Prospectus; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Securities being sold hereunder by the Company have been duly and
validly authorized, and, when issued and delivered to and paid for by
the Underwriter pursuant to this Agreement, will be fully paid and
nonassessable; the Securities being sold hereunder by the Company are
duly listed for trading, subject to official notice of issuance, on the
New York Stock Exchange; the certificates for the Securities are in
valid and sufficient form; the holders of outstanding shares of capital
stock of the Company are not entitled to preemptive or other rights to
subscribe for the Securities; and, except as set forth in the
Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
(vi) There is no franchise, contract or other
document of a character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit thereto, which is
not described or filed as required.
(vii) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and
binding obligation of the Company enforceable in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
or other similar laws or court decisions, relating to or affecting
creditors' rights generally, and except to the extent that enforcement
of the indemnification and contribution obligations provided for herein
may be limited by federal or state laws relating to securities or the
public policies underlying such laws.
(viii) The Company is not and, after giving effect to
the offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
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(ix) No consent, approval, authorization, filing with
or order of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriter in the manner
contemplated herein and in the Prospectus.
(x) Neither the issue and sale of the Securities nor
the consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its Subsidiaries
pursuant to, (i) the charter or by-laws of the Company or any of its
Subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its Subsidiaries is a party or bound or to which its
or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of its Subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its Subsidiaries or any of its
or their properties, except for, with respect to clause (ii), any such
conflict, breach, violation or imposition that could not reasonably be
expected to have a Material Adverse Effect.
(xi) No holders of securities of the Company have
rights to the registration of such securities under the Registration
Statement.
(xii) The consolidated historical financial
statements and schedules of the Company and its consolidated
Subsidiaries included in the Prospectus and the Registration Statement
present fairly in all material respects the financial condition,
results of operations and cash flows of the Company as of the dates and
for the periods indicated, comply as to form with the applicable
accounting requirements of the Act and have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted
therein). The selected financial data incorporated by reference in the
Prospectus and Registration Statement from "Item 6. Selected Financial
Data" included in the Company's Annual Report on Form 10-K for the year
ended December 31, 2001 fairly present, on the basis stated in the
Prospectus and the Registration Statement, the data included therein.
(xiii) Except as disclosed in the Prospectus, no
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of its Subsidiaries or its or their property is pending or, to the
best knowledge of the Company, threatened that (i) could reasonably be
expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a Material Adverse
Effect.
(xiv) Each of the Company and Subsidiaries owns or
leases all such properties as are necessary to the conduct of its
operations as presently conducted.
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(xv) Neither the Company nor any Subsidiary is in
violation or default of (i) any provision of its charter or bylaws,
(ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to
which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or such Subsidiary or any of its
properties, as applicable, except where, in the case of clauses (ii)
and (iii) above, such violation or default could not reasonably be
expected to have a Material Adverse Effect.
(xvi) Arthur Andersen LLP, who have certified certain
financial statements of the Company and its consolidated Subsidiaries
and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Prospectus, are
independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
thereunder.
(xvii) Except for the filing fees under the Act or
any state securities laws, there are no transfer taxes or other similar
fees or charges under Federal law or the laws of any state, or any
political subdivision thereof, required to be paid in connection with
the execution and delivery of this Agreement or the issuance by the
Company or sale by the Company of the Securities.
(xviii) The Company has filed all foreign, federal,
state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure
so to file could not reasonably be expected to have a Material Adverse
Effect) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith or as
could not reasonably be expected to have a Material Adverse Effect.
(xix) No labor problem or dispute with the employees
of the Company or any of its Subsidiaries exists or is threatened or to
the Company's knowledge is imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or its Subsidiaries' principal suppliers, contractors or customers,
that could reasonably be expected to have a Material Adverse Effect.
(xx) The Company and each of its Subsidiaries are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in
the businesses in which they are engaged; all policies of insurance
insuring the Company or any of its Subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force
and effect; the Company and its Subsidiaries are in compliance with the
terms of such policies and instruments in all material respects; and
there are no claims by the Company or any of its Subsidiaries under any
such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause that could
reasonably be expected to have a Material Adverse Effect; neither the
Company nor any such Subsidiary has been refused any insurance coverage
sought or applied for; and neither the
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Company nor any such Subsidiary has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that could not
reasonably be expected to have a Material Adverse Effect.
(xxi) The Company and its Subsidiaries possess all
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, and neither the Company nor any
such Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could reasonably be expected
to have a Material Adverse Effect.
(xxii) The Company and each of its Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxiii) The Company has not taken, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(xxiv) Except as set forth in the Prospectus, the
Company and its Subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses
and (iii) have not received notice of any actual or potential liability
for the investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or contaminants,
except where such non-compliance with Environmental Laws, failure to
receive required permits, licenses or other approvals, or liability
could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. Except as set forth in the Prospectus,
neither the Company nor any of the Subsidiaries has been named as a
"potentially responsible party" under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended.
(xxv) In the ordinary course of its business, the
Company periodically reviews the effect of Environmental Laws on the
business, operations and properties of the Company and its
Subsidiaries, in the course of which it identifies and evaluates
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associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated costs
and liabilities could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(xxvi) The Company and its Subsidiaries own, possess,
license or have other rights to use, on reasonable terms, all patents,
patent applications, trade and service marks, trade and service mark
registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct
of the Company's business as now conducted or as proposed in the
Prospectus to be conducted. Except as set forth in the Prospectus, (a)
to the Company's best knowledge, there are no rights of third parties
to any such Intellectual Property; (b) to the Company's best knowledge,
there is no material infringement by third parties of any such
Intellectual Property; (c) there is no pending or, to the Company's
best knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any such Intellectual
Property, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (d) there is no pending or, to the
Company's best knowledge, threatened action, suit, proceeding or claim
by others challenging the validity or scope of any such Intellectual
Property, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (e) there is no pending or, to the
Company's best knowledge, threatened action, suit, proceeding or claim
by others that the Company infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of
others, and the Company is unaware of any other fact which would form a
reasonable basis for any such claim; (f) to the Company's best
knowledge, there is no U.S. patent or published U.S. patent application
which contains claims that dominate or may dominate any Intellectual
Property described in the Prospectus as being owned by or licensed to
the Company or that interferes with the issued or pending claims of any
such Intellectual Property; and (g) there is no prior art of which the
Company is aware that may render any U.S. patent held by the Company
invalid or any U.S. patent application held by the Company unpatentable
which has not been disclosed to the U.S. Patent and Trademark Office.
(xxvii) The Company has complied with all provisions
of Florida Statutes, Section 517.075, relating to issuers doing
business with Cuba.
Any certificate signed by any officer of the Company and delivered to
the Underwriter or counsel for the Underwriter in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to the Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, the Securities, at a
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purchase price per share specified in Schedule I hereto across from the caption
"Proceeds to Company Per Share."
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made on the date and at the time specified in Schedule I hereto or at
such time on such later date not more than three Business Days after the
foregoing date as the Underwriter shall designate, which date and time may be
postponed by agreement among the Underwriter and the Company (such date and time
of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the Underwriter against
payment by the Underwriter of the aggregate purchase prices of the Securities
being sold by the Company to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of
the Securities shall be made through the facilities of The Depository Trust
Company unless the Underwriter shall otherwise instruct.
4. Offering by Underwriter. It is understood that the Underwriter
proposes to offer the Securities for sale to the public as set forth in the
Final Prospectus.
5. Agreements. (a) The Company agrees with the Underwriter that:
(i) The Company will use its best efforts to cause
the Registration Statement, if not effective at the Execution Time, and
any amendment thereof, to become effective. Prior to the termination of
the offering of the Securities, the Company will not file any amendment
of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Final Prospectus is otherwise required under Rule 424(b),
the Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Underwriter of such
timely filing. The Company will promptly advise the Underwriter (1)
when the Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the Final Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (4)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Final Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
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issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(ii) If, at any time when a prospectus relating to
the Securities is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, or if
it shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Underwriter of such event, (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) (i) of this Section 5,
an amendment or supplement which will correct such statement or
omission or effect such compliance and (3) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably
request.
(iii) As soon as practicable, the Company will make
generally available to its security holders and to the Underwriter an
earnings statement or statements of the Company and its Subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(iv) (A) The Company will furnish to the Underwriter
and counsel for the Underwriter, without charge, signed copies of the
Registration Statement (including exhibits thereto) a copy of the
Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by the Underwriter or dealer may be required
by the Act, as many copies of each Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Underwriter may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(B) The Company will arrange, if necessary, for
the qualification of the Securities for sale under the laws of
such jurisdictions as the Underwriter may reasonably
designate, will maintain such qualifications in effect so long
as required for the distribution of the Securities and will
pay any fee of the National Association of Securities Dealers,
Inc., in connection with its review of the offering; provided
that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to
service of process in suits, other than those arising out of
the offering or sale of the Securities, in any jurisdiction
where it is not now so subject.
(v) The Company will not, without the prior written
consent of the Underwriter, offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of
the Company), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
9
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other shares of Common
Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock; or publicly announce an
intention to effect any such transaction, until the Business Day set
forth on Schedule I hereto, provided, however, that the Company may (i)
issue and sell Common Stock pursuant to any employee stock option plan,
stock ownership plan or dividend reinvestment plan of the Company in
effect at the Execution Time, (ii) issue Common Stock issuable upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time and (iii) issue up to 200,000 shares of Common Stock
pursuant to one or more acquisition transactions.
(vi) The Company will not take, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(vii) The Company agrees to pay the following costs
and expenses and all other costs and expenses incident to the
performance by the Company of its obligations hereunder: (i) the
preparation, printing or reproduction and filing with the Commission of
the Registration Statement (including financial statements and exhibits
thereto), each Preliminary Prospectus, each Prospectus, and each
amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, each Preliminary Prospectus, each Prospectus, and all
amendments or supplements to any of them, as may, in each case, be
requested for use in connection with the offering and sale of the
Securities; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (v) the registration of the Securities
under the Exchange Act and the listing of the Securities on the New
York Stock Exchange; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of
the several states (including filing fees and the reasonable fees and
expenses of counsel for the Underwriter relating to such registration
and qualification); (vii) any filings required to be made with the
National Association of Securities Dealers, Inc. (including filing fees
and the reasonable fees and expenses of counsel for the Underwriter
relating to such filings); (viii) the expenses incurred by or on behalf
of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of
the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; and (x) all
other costs and expenses incident to the performance by the Company of
its obligations under this Agreement.
6. Conditions to the Obligations of the Underwriter. The obligations of
the Underwriter to purchase the Underwritten Securities and the Option
Securities, as the case may
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be, shall be subject to the accuracy of the representations and warranties on
the part of the Company contained herein as of the Execution Time, the Closing
Date and any settlement date pursuant to Section 3 hereof, to the accuracy of
the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Underwriter agrees in writing to a later time, the
Registration Statement will become effective not later than (i) 6:00 PM New York
City time on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period required by
Rule 424 (b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have requested and caused Ervin, Cohen & Jessup
LLP, counsel for the Company, to have furnished to the Underwriter their
opinion, dated the Closing Date and addressed to the Underwriter, to the effect
that:
(i) each of the Company and the Subsidiaries has been duly
organized and is validly existing as an entity in good standing under the
laws of the jurisdiction in which it is organized, with full power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Final Prospectus,
and is duly qualified to do business as a foreign entity and is in good
standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts
material business and where the failure to be so qualified could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; notwithstanding the foregoing, the Company is duly
qualified to do business as a foreign corporation and is in good standing
under the laws of Louisiana;
(ii) all the outstanding shares of capital stock or other
equity interests of each Subsidiary have been duly and validly authorized
and issued and are fully paid and nonassessable, and, except as otherwise
set forth in the Final Prospectus, all outstanding shares of capital stock
or other equity interests of the Subsidiaries are owned by the Company
either directly or through wholly owned Subsidiaries free and clear of any
perfected security interest and, to the knowledge of such counsel, after
due inquiry, any other security interest, claim, lien or encumbrance,
except for the liens and security interests of the lenders under the
Company's existing credit facility;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the capital stock of the Company conforms in
all material respects to the description thereof contained in the Final
Prospectus; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Securities being sold hereunder by the Company have been duly and
11
validly authorized, and, when issued and delivered to and paid for by the
Underwriter pursuant to this Agreement, will be fully paid and
nonassessable; the Securities being sold hereunder by the Company are duly
listed for trading, subject to official notice of issuance, on the New York
Stock Exchange; the certificates for the Securities are in valid and
sufficient form; the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to subscribe for the
Securities; and, except as set forth in the Final Prospectus, to the
knowledge of such counsel, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to convert
any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding;
(iv) there is no pending or, to the knowledge of such counsel,
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its Subsidiaries or its or their property of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there is no franchise,
contract or other document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required;
(v) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto, pursuant
to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or threatened and the
Registration Statement and the Final Prospectus (other than the financial
statements and other financial information contained therein, as to which
such counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the Exchange Act
and the respective rules thereunder; and such counsel has no reason to
believe that on the Effective Date or the date the Registration Statement
was last deemed amended the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus as of its date and on the Closing
Date included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and other
financial information contained therein, as to which such counsel need
express no opinion);
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended;
12
(viii) no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriter in the manner contemplated in this Agreement
and in the Final Prospectus and such other approvals (specified in such
opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation of or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or its Subsidiaries pursuant to, (i) the
charter or by-laws of the Company or its Subsidiaries, (ii) to the
knowledge of such counsel after reasonable inquiry, the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to which the Company or its Subsidiaries is a party or bound or to which
its or their property is subject, or (iii) to the knowledge of such counsel
after reasonable inquiry, any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or its Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or its Subsidiaries or
any of its or their properties, which violation or default could, in the
case of clauses (ii) and (iii) above, either individually or in the
aggregate with all other violations and defaults referred to in this
paragraph (ix) (if any), reasonably be expected to have a Material Adverse
Effect in the ordinary course of business, except as set forth in or
contemplated in the Prospectus; and
(x) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Delaware or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriter and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Underwriter shall have received from Vinson & Elkins L.L.P.,
counsel for the Underwriter, such opinion or opinions, dated the Closing Date
and addressed to the Underwriter, with respect to the issuance and sale of the
Securities, the Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Underwriter may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Underwriter a certificate
of the Company, signed by the Chairman of the Board or the President and the
principal financial or
13
accounting officer of the Company, dated the Closing Date, to the effect that
the signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus, any supplements to the Final Prospectus and
this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company has complied with all
the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus (exclusive of
any supplement thereto), there has been no material adverse effect on the
condition (financial or otherwise) prospects, earnings, business or
properties of the Company and its Subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) The Company shall have requested and caused Arthur Andersen LLP to
have furnished to the Underwriter, at the Execution Time and at the Closing
Date, letters (which may refer to letters previously delivered to the
Underwriter), dated respectively as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to the Underwriter, confirming that
they are independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder and stating in effect, except as provided in Schedule I
hereto, that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference in the
Registration Statement and the Final Prospectus and reported on by them
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its Subsidiaries;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the meetings of the
stockholders, directors and the audit committee of the Company and of the
Subsidiaries; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and its
Subsidiaries as to transactions and events subsequent to March 31, 2002,
nothing came to their attention which caused them to believe that:
14
1. any unaudited financial statements included or incorporated
by reference in the Registration Statement and the Final Prospectus do
not comply as to form in all material respects with applicable
accounting requirements of the Act and with the related rules and
regulations adopted by the Commission with respect to financial
statements included or incorporated by reference in quarterly reports
on Form 10-Q under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference in
the Registration Statement and the Final Prospectus;
2. with respect to the period subsequent to March 31, 2002,
there were any changes, at a specified date not more than five days
prior to the date of the letter, in the long-term debt of the Company
and its Subsidiaries or capital stock of the Company or decreases in
the stockholders' equity of the Company as compared with the amounts
shown on the March 31, 2002 consolidated balance sheet included or
incorporated by reference in the Registration Statement and the Final
Prospectus, or for the period from April 1, 2002 to such specified date
there were any decreases, as compared with the corresponding period in
the preceding year in net revenues or income before income taxes or in
total or per share amounts of net income of the Company and its
Subsidiaries, except in all instances for changes or decreases set
forth in such letter, in which case the letter shall be accompanied by
an explanation by the Company as to the significance thereof unless
said explanation is not deemed necessary by the Underwriter;
3. the information included or incorporated by reference in
the Registration Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information) , Item 402 (Executive
Compensation) and Item 503 (d) (Ratio of Earnings to Fixed Charges) is
not in conformity with the applicable disclosure requirements of
Regulation S-K; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company and its Subsidiaries) set forth in the
Registration Statement and the Final Prospectus, including the information
incorporated by reference in the Registration Statement and the Final
Prospectus from Items 1, 2, 6, 7, 7A and 11 of the Company's Annual Report
on Form 10-K for the year ended December 31, 2001, and the information
incorporated by reference in the Registration Statement and the Final
Prospectus from the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included in the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 2002, agrees with the
accounting records of the Company and its Subsidiaries, excluding any
questions of legal interpretation.
15
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
reasonable judgment of the Underwriter, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto).
(g) Prior to the Closing Date, the Company shall have
furnished to the Underwriter such further information, certificates and
documents as the Underwriter may reasonably request.
(h) The Securities shall have been listed for trading on the
New York Stock Exchange, and satisfactory evidence of such actions shall have
been provided to the Underwriter.
(i) At the Execution Time, the Company shall have furnished to
the Underwriter a letter substantially in the form of Exhibit A hereto from each
executive officer and director of the Company.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriter and counsel for the Underwriter, this Agreement
and all obligations of the Underwriter hereunder may be canceled at, or at any
time prior to, the Closing Date by the Underwriter. Notice of such cancellation
shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Vinson & Elkins L.L.P., counsel for the Underwriter,
at 2300 First City Tower, 1001 Fannin Street, Houston, Texas 77002, on the
Closing Date.
7. Reimbursement of Underwriter's Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriter, the Company will reimburse the Underwriter on
demand for all out-of-pocket
16
expenses (including reasonable fees and disbursements of counsel) that shall
have been reasonably incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Underwriter, the directors, officers, employees
and agents of the Underwriter and each person who controls the Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Underwriter specifically for inclusion therein. This indemnity agreement
will be in addition to any liability that the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity to
the Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability that
the Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting," (i) the sentences related to
concessions and reallowances and (ii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
Underwriter for inclusion in the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall
17
be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party in its reasonable discretion. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including one
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriter agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and the Underwriter may be subject
in such proportion as is appropriate to reflect the relative benefits received
by the Company and by the Underwriter from the offering of the Securities;
provided, however, that in no case shall the Underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by the Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriter shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriter in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
the Company, and benefits received by the Underwriter shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company on the
one hand or the Underwriter on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue
18
statement or omission. The Company and the Underwriter agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls the Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of the Underwriter shall have the same rights to contribution as the
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriter, by notice given to the Company prior to
delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange or the Nasdaq National Market shall have been
suspended or limited or minimum prices shall have been established on the New
York Stock Exchange or the Nasdaq National Market (other than minimum prices
required by the New York Stock Exchange or Nasdaq National Market to maintain
eligibility for listing or trading on such exchange or market), (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or if any material disruption in commercial banking or securities
settlement or clearance services shall have occurred or (iii) there shall have
occurred any outbreak or escalation of hostilities or acts of terrorism
involving the United States, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Underwriter,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Final Prospectus (exclusive of any supplement
thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telefaxed to Scott Cook, Raymond James & Associates, Inc., 880
Carillon Parkway, St. Petersburg, Florida 33716, (facsimile: (727) 573-8274),
with a copy to Thomas P. Mason, Vinson & Elkins L.L.P., 2300 First City Tower,
1001 Fannin Street, Houston, Texas 77002, (facsimile: (713) 615-5320); or, if
sent to the Company, will be mailed, delivered or telefaxed to it at 3850 N.
Causeway, Suite 1770, Metairie, Louisiana 70002, Attention: James D. Cole
(facsimile: (504) 833-9506), with a
19
copy to Ervin, Cohen & Jessup LLP, 9401 Wilshire Boulevard, 9th Floor, Beverly
Hills, California 90212, Attention: Howard Z. Berman (facsimile: (310)
859-2325).
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
14. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement. A facsimile signature of a
party shall have the same legal effect as an original signature when delivered
to the other party.
15. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
16. Definitions. The terms that follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City. "Commission" shall
mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
20
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1(a) above, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time, in
the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, shall also mean such registration
statement as so amended or such Rule 462(b) Registration Statement, as the case
may be. Such term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section 1(a)
hereof.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the Underwriter.
Very truly yours,
Newpark Resources, Inc.
By:
----------------------------------------
Name: Matthew Hardey
Title: Vice President of Finance
and Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
Raymond James & Associates, Inc.
By:
-------------------------------
Name: Scott Cook
Title: Senior Managing Director
22
SCHEDULE I
Underwriting Agreement dated May 15, 2002
Registration Statement No. 333-87840
<Table>
Title, Purchase Price and Description of
Securities:
Title: Common Stock
Number of Shares to be sold by the Company: 2,000,000
Price to Public per Share (include accrued $8.50
dividends, if any)
Price to Public -- total: $17,000,000
Underwriting Discount per Share: $0.30
Underwriting Discount -- total: $600,000
Proceeds to Company per Share: $8.20
Proceeds to Company -- total: $16,400,000
Other provisions: None
Closing Date, Time and Location: May 21, 2002 at 9:30 a.m. at the
offices of Vinson & Elkins L.L.P.,
1001 Fannin, Suite 2300, Houston,
Texas 77002
Type of Offering: Non-Delayed
Date referred to in Section 5(a)(v) after which August 14, 2002
the Company may offer or sell securities issued
or guaranteed by the Company without the
consent of the Underwriter:
Modification of items to be covered by the None
letter from Arthur Andersen LLP delivered pursuant
to Section 6(g) at the Execution Time:
</Table>
23
SCHEDULE II
SUBSIDIARIES
1. BATSON MILL, L.P.
2. CHESSHER CONSTRUCTION, INC.
3. CONSOLIDATED MAYFLOWER MINES, INC.
4. DARCOM INTERNATIONAL, L.P.
5. EXCALIBAR MINERALS, INC.
6. EXCALIBAR MINERALS OF LA, L.L.C.
7. FLORIDA MAT RENTAL, INC.
8. HYDRA FLUIDS INTERNATIONAL, LTD.
9. INTERNATIONAL MAT, LTD.
10. IML DE VENEZUELA, LLC
11. MALLARD & MALLARD OF LA., INC.
12. NES PERMIAN BASIN, L.P.
13. NEWPARK CANADA, INC.
14. NEWPARK DRILLING FLUIDS, LLC
15. NEWPARK ENVIRONMENTAL SERVICES, L.L.C.
16. NEWPARK ENVIRONMENTAL MANAGEMENT COMPANY, L.L.C.
17. NEWPARK ENVIRONMENTAL SERVICES MISSISSIPPI, L.P.
18. NEWPARK ENVIRONMENTAL SERVICES OF TEXAS, L.P.
19. NEWPARK HOLDINGS, INC.
20. NEWPARK SHIPHOLDING TEXAS, L.P.
21. NEWPARK TEXAS L.L.C.
22. NID, L.P.
23. OGS LABORATORY, INC.
24. SHAMROCK DRILLING FLUIDS, INC.
25. SOLOCO FSC, INC.
26. SOLOCO, L.L.C.
27. SOLOCO TEXAS, L.P.
28. SUPREME CONTRACTORS, L.L.C.
24