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EXHIBIT 1.2
DRAFT
October 23, 1996
UNITED MERIDIAN CORPORATION
(a Delaware corporation)
1,150,000 Shares of Series A Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
__________, 1996
MERRILL LYNCH INTERNATIONAL
J. P. Morgan Securities Ltd.
Howard, Weil, Labouisse, Friedrichs Incorporated
Petrie, Parkman & Co., Inc.
as Lead Managers of the several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC24 9L4
England
Ladies and Gentlemen:
United Meridian Corporation, a Delaware corporation (the "Company"), and
the persons listed in Schedule B hereto (the "Selling Shareholders") confirm
their respective agreements with Merrill Lynch International ("Merrill Lynch")
and each of the other international underwriters named in Schedule A hereto
(collectively, the "International Managers," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Merrill Lynch, J. P. Morgan Securities Ltd., Howard, Weil, Labouisse,
Friedrichs Incorporated and Petrie, Parkman & Co., Inc. are acting as
representatives (in such capacity, the "Lead Managers"), with respect to (i)
the sale by the Company and the Selling Shareholders, acting severally and not
jointly, and the purchase by the International Managers, acting severally and
not jointly, of the respective numbers of shares of Series A Common Stock, par
value $.01 per share, of the Company ("Common Stock") set forth in Schedule A
and Schedule B hereto, and (ii) the grant by the Company to the International
Managers, acting severally and not jointly, of the option described in Section
2(b) hereof to purchase all or any part of 172,500 additional shares of Common
Stock to cover over-allotments, if any. The aforesaid 1,150,000 shares of
Common Stock (the "Initial International Securities") to be purchased by the
International Managers and all or any part of the 172,500 shares of Common
Stock subject to the option described in Section 2(b) hereof (the
"International Option Securities") are hereinafter called, collectively, the
"International Securities."
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It is understood that the Company and the Selling Shareholders are
concurrently entering into an agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for the sale by the Company and the Selling
Shareholders, acting severally and not jointly, of an aggregate of 4,600,000
shares of Common Stock (the "Initial U.S. Securities") through arrangements
with certain underwriters in the United States and Canada (the "U.S.
Underwriters") for which Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.
P. Morgan Securities Inc., Howard, Weil, Labouisse Friedrichs Incorporated and
Petrie, Parkman & Co., Inc. are acting as representatives (the "U.S.
Representatives") and the grant by the Company to the U.S. Underwriters, acting
severally and not jointly, of an option to purchase all or any part of the U.S.
Underwriters' pro rata portion of up to 690,000 additional shares of Common
Stock solely to cover overallotments, if any (the "U.S. Option Securities" and,
together with the International Option Securities, the "Option Securities").
The Initial U.S. Securities and the U.S. Option Securities are hereinafter
called the "U.S. Securities." It is understood that the Company and the
Selling Shareholders acting severally and not jointly, are not obligated to
sell and the International Managers are not obligated to purchase, any Initial
International Securities unless all of the Initial U.S. Securities are
contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters," the Initial International Securities
and the Initial U.S. Securities are hereinafter collectively called the
"Initial Securities," and the International Securities and the U.S. Securities
are hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (in such capacity, the "Global Coordinator").
The Company and the Selling Shareholders understand that the
International Managers propose to make a public offering of the International
Securities as soon as the Lead Managers deem advisable after this Agreement has
been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-12823) covering the
registration of the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will
either (i) prepare and file a prospectus in accordance with the provisions of
Rule 430A ("Rule 430A") of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations or (ii) if the Company has elected to rely
upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term
sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and Rule
424(b). Two forms of prospectus are to be used in connection with the offering
and sale of the Securities: one relating to the International Securities (the
"Form of International Prospectus") and one relating to the U.S. Securities
(the "Form of U.S. Prospectus"). The Form of International Prospectus is
identical to the Form of U.S. Prospectus, except for the front cover and back
cover pages and the information under the caption "Underwriting." The
information included in any such prospectus or in any such Term Sheet, as the
case may be, that was omitted from such registration
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statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to
paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or (b)
pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434 Information."
Each Form of International Prospectus and Form of U.S. Prospectus used before
such registration statement became effective, and any prospectus that omitted,
as applicable, the Rule 430A Information or the Rule 434 Information, that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final
Form of International Prospectus and the final Form of U.S. Prospectus,
including the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, in the forms first furnished to the
Underwriters for use in connection with the offering of the Securities are
herein called the "International Prospectus" and the "U.S. Prospectus,"
respectively, and collectively, the "Prospectuses." If Rule 434 is relied on,
the terms "International Prospectus" and "U.S. Prospectus" shall refer to the
preliminary International Prospectus dated October 7, 1996 and preliminary U.S.
Prospectus dated October 7, 1996, respectively, each together with the
applicable Term Sheet and all references in this Agreement to the date of such
Prospectuses shall mean the date of the applicable Term Sheet. For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, the International Prospectus, the U.S. Prospectus or any Term Sheet
or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of
International Prospectus and Form of U.S. Prospectus) or the Prospectuses (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of International Prospectus and Form of U.S. Prospectus) or
the Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing
of any document under the Securities Exchange Act of 1934 (the "1934 Act")
which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each International Manager as of the date hereof, as
of the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b), hereof and agrees with each
International Manager, as follows:
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(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post- effective amendments thereto
became effective and at the Closing Time (and, if any International
Option Securities are purchased, at the Date of Delivery), the
Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither of the Prospectuses nor any amendments or supplements thereto,
at the time the Prospectuses or any amendments or supplements thereto
were issued and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will 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. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the International Prospectus made in reliance
upon and in conformity with information furnished to the Company in
writing by any International Manager through the Lead Managers expressly
for use in the Registration Statement or the International Prospectus.
Each preliminary prospectus and the prospectuses filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectuses, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with, and as modified or superseded by, the other information
in the Prospectuses, at the time the Registration Statement became
effective, at the time the Prospectuses were issued and at the Closing
Time (and, if any International Option Securities are purchased, at the
Date of Delivery), did not and will not contain an untrue statement of a
material fact or omit to state
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a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants with respect
to the Company and its subsidiaries as required by the 1933 Act and the
1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectuses, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
except as otherwise stated in the Registration Statement said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
and the summary financial information included in the Prospectuses
present fairly in all material respects the information shown therein
and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, (B) there have been
no transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise, and (C) except as described in the Registration Statement,
there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each subsidiary of the
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
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operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a material adverse
effect on the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise ("Material Adverse Effect");
all of the issued and outstanding capital stock of each such subsidiary
has been duly authorized and validly issued, is fully paid and
non-assessable and (except for approximately one-half of the shares of
Havre Pipeline LLC) is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity except as described in the
Prospectuses and except for the pledge of such shares to secure
borrowings as described in the Prospectuses. The subsidiaries of the
Company listed on Schedule D hereto include each subsidiary of the
Company that is a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X.
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectuses in the
column entitled "Historical" under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to this Agreement, pursuant
to reservations, agreements or employee benefit plans referred to in the
Prospectuses or pursuant to the exercise of convertible securities,
options or rights referred to in the Prospectuses and except for the
authorized and undesignated preferred stock of the Company). The shares
of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(ix) Authorization of Agreement. This Agreement and the U.S.
Purchase Agreement have been duly authorized, executed and delivered by
the Company.
(x) Authorization and Description of Securities. The
Securities to be purchased by the International Managers and the U.S.
Underwriters from the Company have been duly authorized for issuance and
sale to the International Managers pursuant to this Agreement and the
U.S. Underwriters pursuant to the U.S. Purchase Agreement, respectively,
and, when issued and delivered by the Company pursuant to this Agreement
and the U.S. Purchase Agreement, respectively, against payment of the
consideration set forth herein and the U.S. Purchase Agreement,
respectively, will be validly issued, fully paid and non-assessable; the
Common Stock conforms in all material respects to all statements
relating thereto contained in the Prospectuses and such description
conforms in all material respects to the rights set forth in the
instruments defining the same; and the issuance of the Securities is not
subject to the preemptive or other similar rights of any securityholder
of the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any
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of them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (collectively, "Agreements and
Instruments") except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance of
this Agreement and the U.S. Purchase Agreement and the consummation of
the transactions contemplated in this Agreement, the U.S. Purchase
Agreement and in the Registration Statement (including the issuance and
sale of the Securities by the Company and the use of the proceeds from
the sale of the Securities by the Company as described in the
Prospectuses under the caption "Use of Proceeds") and compliance by the
Company with its obligations under this Agreement and the U.S. Purchase
Agreement have been duly authorized by all necessary corporate action on
the part of the Company and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any subsidiary or
any of their assets, properties or operations.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or
any subsidiary's principal suppliers, manufacturers or contractors,
which, in either case, might reasonably be expected to result in a
Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement and the U.S. Purchase Agreement or the
performance by the Company of its obligations hereunder or thereunder;
when considered in the aggregate all pending legal or governmental
proceedings to which the Company or any subsidiary is a party, or of
which any of their respective property or assets is the subject, which
are not described in the Registration Statement, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectuses or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed or
incorporated by reference as required.
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(xv) Title to Property. The Company and its subsidiaries have
good and indefeasible title to real estate and good title to all other
properties and assets described in the Prospectuses as owned by them,
free and clear of all liens, charges, encumbrances or restrictions,
except such as are described in the Prospectuses or are not material to
the business of the Company and its subsidiaries considered as one
enterprise. The Company and its subsidiaries have valid, subsisting and
enforceable leases for the properties described in the Prospectuses as
leased by them, with such exceptions as are not material to the business
of the Company and its subsidiaries considered as one enterprise and as
do not materially interfere with the use made and proposed to be made of
such properties by the Company and its subsidiaries.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval or consent of, any court or governmental
authority or agency is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the offering,
issuance or sale by the Company of the Securities under this Agreement
and the U.S. Purchase Agreement or the consummation of the transactions
contemplated by this Agreement and the U.S. Purchase Agreement, except
such as have been already obtained or made, or will have been obtained
or made as of the Closing Time, or as may be required under the 1933 Act
or the 1933 Act Regulations and foreign or state securities or blue sky
laws.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such valid franchises, certificates of convenience
and necessity, easements, rights-of-way, operating rights, licenses,
permits, consents, authorizations and orders of government political
subdivisions or regulatory authorities as, in their respective opinions,
are necessary to carry on the respective business of each as presently
being conducted as described in the Prospectuses; and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, permit or authorization which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have
a Material Adverse Effect.
(xviii)Compliance with Laws. Except as set forth in the
Prospectuses, the Company and its subsidiaries are in compliance in all
material respects with all applicable laws, statutes, ordinances, rules
or regulations, except for noncompliances which, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect. Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any
subsidiary has made any payment of funds of the Company or any
subsidiary or received or retained any funds in violation of any law,
rule or regulation of a character required to be disclosed in the
Prospectuses.
(xix) Compliance with Cuba Act. The Company has complied with,
and is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba, codified
as Section 517.075 of the Florida statutes, and the rules and
regulations thereunder (collectively, the "Cuba Act") or is exempt
therefrom.
(xx) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds
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therefrom as described in the Prospectuses under the caption "Use of
Proceeds" will not be, an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(xxi) Registration Rights. There are no persons with
registration or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company pursuant to the 1933 Act other than rights which have been
waived, satisfied or not exercised in accordance with the offering
contemplated hereby.
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder severally, and not jointly, represents and warrants to each
International Manager as of the date hereof, and as of the Closing Time, and
agrees with each International Manager, as follows:
(i) Accurate Disclosure. The Shareholder Information (as
defined in Section 6(a)) furnished by such Selling Shareholder does not
contain 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;
such Selling Shareholder is not prompted to sell the Securities to be
sold by such Selling Shareholder hereunder by any information of a
material nature concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectuses.
(ii) Authorization of Agreement. Each Selling Shareholder has
the requisite power and authority to enter into this Agreement and a
Power of Attorney and Custody Agreement (the "Power of Attorney and
Custody Agreement") and to sell, transfer and deliver the Securities to
be sold by such Selling Shareholder hereunder (assuming the
effectiveness of the Registration Statement and such authorizations,
approvals or consents as may be necessary under foreign or state
securities or blue sky laws). The execution and delivery of this
Agreement and the Power of Attorney and Custody Agreement and the sale
and delivery of the Securities to be sold by such Selling Shareholder
and the consummation of the transactions contemplated herein and
compliance by such Selling Shareholder with its obligations hereunder
have been duly authorized by such Selling Shareholder and do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Securities to be sold by such Selling Shareholder
pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, license, lease or other agreement or instrument
to which such Selling Shareholder is a party or by which such Selling
Shareholder may be bound, nor will such action result in any violation
of the provisions of the charter or by-laws or other organizational
instrument of such Selling Shareholder, if applicable, or any applicable
treaty, law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over such Selling Shareholder or any of its
properties.
(iii) Good and Valid Title. Such Selling Shareholder has and
will at the Closing Time have good and valid title to the Securities to
be sold by such Selling Shareholder hereunder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind, other than pursuant to this Agreement, the U.S.
Purchase
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Agreement, the Power of Attorney and the Custody Agreement; and upon
delivery of such Securities and payment of the purchase price therefor
as herein contemplated, assuming each such International Manager is
purchasing the Securities in good faith and has no notice of any adverse
claim relating to the Securities, each of the International Managers
will receive good and valid title to the Securities purchased by it from
such Selling Shareholder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind.
(iv) Due Execution of Power of Attorney and Custody Agreement.
Such Selling Shareholder has duly executed and delivered, in the form
heretofore furnished to the Lead Managers, the Power of Attorney and
Custody Agreement with John B. Brock and Jonathan M. Clarkson, or either
of them, as attorneys-in-fact (the "Attorneys- in-Fact") and the
Company, as custodian (the "Custodian"); the Custodian is authorized to
deliver the Securities to be sold by such Selling Shareholder hereunder
and to accept payment therefor; and each Attorney-in-Fact is authorized
to execute and deliver this Agreement and the certificate referred to in
Section 5(f) on behalf of such Selling Shareholder, to sell, assign and
transfer to the International Managers the Securities to be sold by such
Selling Shareholder hereunder, to determine the purchase price to be
paid by the International Managers to such Selling Shareholder, as
provided in Section 2(a) hereof, to authorize the delivery of the
Securities to be sold by such Selling Shareholder hereunder, to accept
payment therefor, and otherwise to act on behalf of such Selling
Shareholder in connection with this Agreement.
(v) Absence of Manipulation. Such Selling Shareholder has not
taken, and will not take, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(vi) Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by such Selling
Shareholder of its obligations hereunder or in the Power of Attorney and
Custody Agreement, or in connection with the sale and delivery of the
Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as may have previously been
made or obtained or as may be required under the 1933 Act or the 1933
Act Regulations and foreign or state securities or blue sky laws.
(vii) Restriction on Sale of Securities. Except for Permitted
Dispositions (as defined below), during a period of 90 days from the
date of the Prospectus, such Selling Shareholder will not, without the
prior written consent of Merrill Lynch, (i) offer, sell, contract to
sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under
the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of
ownership of the Common Stock, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by delivery of
Common Stock or such
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other securities, in cash or otherwise. The foregoing sentence shall
not apply to the Securities to be sold hereunder. "Permitted
Dispositions" mean (i) a bona fide gift, provided that the donee thereof
agrees in writing to be bound by the restrictions imposed by this clause
(vii), (ii) a distribution to shareholders of such Selling Shareholder,
provided that such distributees agree in writing to be bound by the
restrictions imposed by this clause (vii) or (iii) a transfer to an
affiliate of such Selling Shareholder, provided that the affiliate
agrees in writing to be bound by the restrictions imposed by this clause
(vii).
(viii) Certificates Suitable for Transfer. Certificates for all
of the Securities to be sold by such Selling Shareholder pursuant to
this Agreement, in suitable form for transfer by delivery or accompanied
by duly executed instruments of transfer or assignment in blank with
signatures guaranteed, have been placed in custody with the Custodian
with irrevocable conditional instructions to deliver such Securities to
the International Managers pursuant to this Agreement.
(ix) No Association with NASD. Such Selling Shareholder has
advised the Lead Managers if either such Selling Shareholder or any of
its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, or has any other association with (within the meaning of
Article I, Section 1(q) of the By-laws of the National Association of
Securities Dealers, Inc.), any member firm of the National Association
of Securities Dealers, Inc.
(c) Officer's Certificate. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Lead Managers or to
counsel for the International Managers shall be deemed a representation and
warranty by the Company to each International Manager as to the matters covered
thereby; and any certificate signed by or on behalf of the Selling Shareholders
as such and delivered to the Lead Managers or to counsel for the International
Managers pursuant to the terms of this Agreement shall be deemed a
representation and warranty by such Selling Shareholder to the International
Managers as to the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and each Selling Shareholder, severally and not jointly,
agree to sell to each International Manager, severally and not jointly, and
each International Manager, severally and not jointly, agrees to purchase from
the Company and each Selling Shareholder, at the price per share set forth in
Schedule C, that proportion of the number of Initial International Securities
set forth in Schedule B opposite the name of the Company or such Selling
Shareholder, as the case may be, which the number of Initial International
Securities set forth in Schedule A opposite the name of such International
Manager, plus any additional number of Initial International Securities which
such International Manager may become obligated to purchase pursuant to the
provisions of Section 10 hereof, bears to the total number of Initial
International Securities, subject, in each case, to such adjustments among the
International Managers as the Lead Managers in their sole discretion shall make
to eliminate any sales or purchases of fractional securities.
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(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
International Managers, severally and not jointly, to purchase up to an
additional 172,500 shares of Common Stock at the price per share set forth in
Schedule C, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial International Securities but
not payable on the International Option Securities. The option hereby granted
will expire 30 days after the date hereof and may be exercised in whole or in
part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Initial
International Securities upon notice by the Lead Managers to the Company
setting forth the number of International Option Securities as to which the
several International Managers are then exercising the option and the time and
date of payment and delivery for such International Option Securities. Any
such time and date of delivery for the International Option Securities (a "Date
of Delivery") shall be determined by the Global Coordinator, but shall not be
later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the International Option Securities, each
of the International Managers, acting severally and not jointly, will purchase
that proportion of the total number of International Option Securities then
being purchased which the number of Initial International Securities set forth
in Schedule A opposite the name of such International Manager bears to the
total number of Initial International Securities, subject in each case to such
adjustments as the Global Coordinator in its discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Vinson
& Elkins L.L.P., 1001 Fannin, Suite 2300, Houston, Texas 77002, or at such
other place as shall be agreed upon by the Global Coordinator and the Company,
at 8:00 A.M. (Central time) on the third (fourth, if the pricing occurs after
4:30 P.M. (Eastern time) on any given day) business day after the date hereof
(unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall be agreed
upon by the Global Coordinator and the Company and the Selling Shareholders
(such time and date of payment and delivery being herein called "Closing
Time"). At the request of the Company, payment shall be made by wire transfer
pursuant to written instructions provided to the Global Coordinator at least
two business days prior to the Closing Time.
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
Payment shall be made to the Company the Selling Shareholders by wire
transfer of immediately available funds to bank accounts designated by the
Company and the Custodian pursuant to each Selling Shareholder's Power of
Attorney and Custody Agreement, as the case may be, against delivery to the
Lead Managers for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the Lead Managers,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial International Securities and the International
Option Securities, if any, which it has agreed to purchase. Merrill Lynch,
individually
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and not as representative of the International Managers, may (but shall not be
obligated to) make payment of the purchase price for the Initial International
Securities or the International Option Securities, if any, to be purchased by
any International Manager whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such International Manager from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the Lead Managers may
request in writing at least one full business day before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the
Initial International Securities and the International Option Securities, if
any, will be made available for examination and packaging by the Lead Managers
in The City of New York not later than 10:00 A.M. (Eastern time) on the
business day prior to the Closing Time or the relevant Date of Delivery, as the
case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Global Coordinator
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectuses or any amended Prospectuses shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectuses or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term Sheet
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the
Prospectuses, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Global Coordinator with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Global Coordinator or
counsel for the International Managers shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the Lead Managers and counsel for the International
Managers, without charge, signed copies of the
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Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will also
deliver to the Lead Managers, without charge, as many conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) as the Lead Managers may reasonably request. The copies of
the Registration Statement and each amendment thereto furnished to the
International Managers will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each International Manager, without charge,
during the period when the International Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the International
Prospectus (as amended or supplemented) as such International Manager may
reasonably request. The International Prospectus and any amendments or
supplements thereto furnished to the International Managers will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement, the International Purchase
Agreement and in the Prospectuses. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the International Managers or
for the Company, to amend the Registration Statement or amend or supplement any
Prospectus in order that the Prospectuses will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement any Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectuses
comply with such requirements, and the Company will furnish to the
International Managers such number of copies of such amendment or supplement as
the International Managers may reasonably request.
(f) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the International Managers, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Global Coordinator may designate and
to maintain such qualifications in effect for a period of not less than one
year from the later of the effective date of the Registration Statement and any
Rule 462(b) Registration Statement; provided, however, that the Company shall
not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation
in respect of doing business in any jurisdiction in
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which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b) Registration
Statement.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Global Coordinator, (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
file any registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities to be sold hereunder or under
the U.S. Purchase Agreement, (B) any shares of Common Stock issued by the
Company upon the exercise of an option, right or warrant or the conversion of a
security outstanding on the date hereof or attached to the shares of Common
Stock on the date hereof and referred to in the Prospectuses, (C) any shares of
Common Stock issued or options to purchase Common Stock granted pursuant to
existing employee benefit plans of the Company or agreements referred to in the
Prospectuses or (D) any shares of Common Stock issued pursuant to any
non-employee director stock option plan.
(k) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay
all expenses incident to the performance of the obligations of the Company and
the Selling Shareholders under this Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto,
(ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and
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any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters and the transfer of the Securities between the
International Managers and the U.S. Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors and the
fees and disbursements of counsel, accountants or other advisors for the
Selling Shareholders, (v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectuses and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any supplement thereto, (viii) the fees and expenses of any
transfer agent or registrar for the Securities and (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Securities and (x) the fees and expenses incurred in connection with the
listing of the Securities on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Lead Managers in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company shall reimburse the International Managers
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the International Managers.
(c) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Shareholders have or may
make for the sharing of such costs and expenses or the obligations that the
Company has for the payment of such costs and expenses, including without
limitation the Company's obligations under (i) its Certificate of
Incorporation, (ii) the Registration Rights Agreement, dated as of July 13,
1993 by and between General Atlantic Resources, Inc., General Atlantic
Corporation, John Hancock Mutual Life Insurance Company, and Fidelity Oil
Holdings, Inc., as amended (the "GARI Registration Rights Agreement") and (iii)
the Stock Purchase Agreement dated June 30, 1995 between the Company, John
Hancock Mutual Life Insurance Company, The Travelers Insurance Company, The
Travelers Indemnity Company, The Travelers Life and Annuity Company and The
Phoenix Insurance Company and the Stock Purchase Agreement dated July 24, 1995
between the Company and John Hancock Mutual Life Insurance Company
(collectively, the "Series F Purchase Agreements").
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Shareholders contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company or on behalf of any Selling
Shareholder delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction
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of counsel to the International Managers. A prospectus containing the Rule
430A Information shall have been filed with the Commission in accordance with
Rule 424(b) (or a post-effective amendment providing such information shall
have been filed and declared effective in accordance with the requirements of
Rule 430A) or, if the Company has elected to rely upon Rule 434, a Term Sheet
shall have been filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Lead
Managers shall have received the opinion, dated as of Closing Time, of Akin,
Gump, Strauss, Hauer & Feld, L.L.P., counsel for the Company, in form and
substance reasonably satisfactory to counsel for the International Managers,
together with signed or reproduced copies of such letter for each of the other
International Managers to the effect set forth in Exhibit A hereto.
(c) Opinion of Counsel for the Selling Shareholders. At Closing
Time, the Lead Managers shall have received the opinion, dated as of Closing
Time, of Paul, Weiss, Rifkind, Wharton & Garrison, counsel for General Atlantic
Corporation and Akin, Gump, Strauss, Hauer & Feld, L.L.P., counsel for John
Hancock Mutual Life Insurance Company and The Travelers Insurance Company, The
Travelers Indemnity Company, The Travelers Life and Annuity Company and The
Phoenix Insurance Company, together with signed or reproduced copies of such
letter for each of the other International Managers in form substantially to
the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for International Managers. At Closing Time,
the Lead Managers shall have received the opinion, dated as of Closing Time, of
Vinson & Elkins L.L.P., counsel for the International Managers, together with
signed or reproduced copies of such letter for each of the other International
Managers with respect to the matters set forth in clauses (i), (ii), (v), (vi)
(solely as to preemptive or other similar rights arising by operation of law or
under the charter or by-laws of the Company), (viii) through (x), inclusive,
(xii), (xiv) (solely as to the information in the Prospectus under "Description
of Capital Stock--Common Stock") and the penultimate paragraph of Exhibit A
hereto. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the States of Texas
and New York, the federal law of the United States and the General Corporation
Law of the State of Delaware, upon the opinions of counsel satisfactory to the
Lead Managers. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Lead Managers shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and, to the best of
such officer's knowledge, no proceedings for that purpose have been instituted
or are pending or are contemplated by the Commission.
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(f) Certificate of Selling Shareholders. At Closing Time, the Lead
Managers shall have received a certificate of an Attorney-in-Fact on behalf of
each Selling Shareholder, dated as of Closing Time, to the effect that (i) the
representations and warranties of each Selling Shareholder contained in Section
1(b) hereof are true and correct in all respects with the same force and effect
as though expressly made at and as of Closing Time and (ii) each Selling
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to
Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Lead Managers shall have received from Arthur Andersen LLP
a letter dated such date, in form and substance satisfactory to the Lead
Managers, together with signed or reproduced copies of such letter for each of
the other International Managers containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectuses.
(h) Bring-down Comfort Letter. At Closing Time, the Lead Managers
shall have received from Arthur Andersen LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (g) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(i) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(j) No Objection. The NASD shall have confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(k) Lock-up Agreements. At the date of this Agreement, the Lead
Managers shall have received an agreement substantially in the form of Exhibit
C hereto signed by the persons listed on Schedule E hereto.
(l) Purchase of Initial U.S. Securities. Contemporaneously with the
purchase by the International Managers of the Initial International Securities
under this Agreement, the U.S. Underwriters shall have purchased the Initial
U.S. Securities under the U.S. Purchase Agreement.
(m) Conditions to Purchase of International Option Securities. In
the event that the International Managers exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the International Option
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company or any
subsidiary of the Company hereunder shall be true and correct as of each Date
of Delivery and, at the relevant Date of Delivery, the Lead Managers shall have
received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company confirming
that the certificate delivered at the Closing Time pursuant to Section
5(e) hereof remains true and correct as of such Date of Delivery.
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(ii) Opinion of Counsel for Company. The opinion of Akin,
Gump, Strauss, Hauer & Feld, LLP, counsel for the Company, in form and
substance satisfactory to counsel for the International Managers, dated
such Date of Delivery, relating to the International Option Securities
to be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for International Managers. The
opinion of Vinson & Elkins LLP, counsel for the International Managers,
dated such Date of Delivery, relating to the International Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from Arthur Anderson
LLP, in form and substance satisfactory to the Lead Managers and dated
such Date of Delivery, substantially in the same form and substance as
the letter furnished to the Lead Managers pursuant to Section 5(g)
hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than five days prior
to such Date of Delivery.
(n) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the International Managers shall have been furnished with
such documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Lead Managers and counsel for the
International Managers.
(o) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of
International Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several International Managers to purchase
the relevant Option Securities, may be terminated by the Lead Managers by
notice to the Company at any time at or prior to Closing Time or such Date of
Delivery, as the case may be, and such termination shall be without liability
of any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Indemnification of International Managers. The Company agrees to
indemnify and hold harmless each International Manager and each person, if any,
who controls any International Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act to the extent and in the manner set
forth in clauses (i), (ii) and (iii) below. In addition, each Selling
Shareholder, severally and not jointly, agrees to indemnify and hold harmless
each International Manager and each person, if any, who controls any
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
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430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectuses (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company and the Selling Shareholders; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however; that each Selling Shareholder shall be obligated to
indemnify and hold harmless each International Manager, and any person who
controls such International Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, only to the extent such loss,
liability, claim, damage or expense arises out of an untrue statement or
omission or alleged untrue statement or omission of a material fact made in
reliance upon and in conformity with written information furnished to the
Company by such Selling Shareholder ("Shareholder Information") expressly for
use in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the International Prospectus (or any amendment or
supplement thereto); and, provided further, that this indemnity agreement shall
not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Company by any International Manager through Merrill Lynch
International expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the International Prospectus (or
any amendment or supplement thereto). The foregoing indemnity with respect to
any untrue statement contained in or omission from a preliminary prospectus
shall not inure to the benefit of any International Manager (or any person
controlling such International Manager) from whom the person asserting any such
loss, liability, claim, damage or expense purchased any of the International
Securities which are the subject thereof if the Company or the Selling
Shareholder shall sustain the burden of proving any such loss, liability,
claim, damage or expense resulted from the fact that such person was not sent
or given a copy of the International Prospectus (or the International
Prospectus as amended or supplemented ) (in each case exclusive of the
documents from which information is incorporated by reference) at or prior to
the written confirmation of the sale of such International
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Securities to such person and (i) the Company has previously furnished copies
thereof to the International Managers sufficiently in advance of the Closing
Time to allow for distribution to the purchasers of the International
Securities, and (ii) the loss, liability, claim, damage or expense resulted
from an untrue statement contained in or omission from such preliminary
prospectus that was corrected in the International Prospectus (or the
International Prospectus as amended or supplemented). Each Selling
Shareholder's aggregate liability pursuant to this Section 6 and Section 7
shall not exceed an amount equal to the net proceeds (before deducting
expenses) received by such Selling Shareholder from the sale of the Securities
pursuant to this Agreement.
(b) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each International Manager severally agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and each Selling Shareholder and each person, if any, who controls any Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the International
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
International Manager through Merrill Lynch International expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or such preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be selected by
Merrill Lynch, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. Notwithstanding the second preceding sentence, if it so
elects within a reasonable time after receipt of such notice, an indemnifying
party, jointly with any other indemnifying parties receiving such notice, may
assume the defense of such action with counsel chosen by it and approved by the
indemnified parties defendant in such action, unless such indemnified parties
reasonably object to such assumption on the ground that there may be legal
defenses available to them which are different from or in addition to those
available to such indemnifying party. If an indemnifying party assumes the
defense of such action, the indemnifying parties shall not be liable for any
fees and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with
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any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
in respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) Other Rights of Selling Shareholders. The provisions of this
Section 6 shall not affect the rights of the Selling Shareholders to be
indemnified by the Company, including, without limitation, those rights under
the Company's Certificate of Incorporation, the GARI Registration Rights
Agreement and the Series F Purchase Agreements.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholders on the one hand and the International
Managers on the other hand from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) 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, each of the Selling Shareholders on the one hand and of the
International Managers, as the case may be, on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations; provided, however, a Selling Shareholder shall have an
obligation to contribute only with respect to losses, liabilities, claims
damages or expenses arising out of an untrue statement or omission or alleged
untrue statement or omission of a material fact made in reliance upon and in
conformity with Shareholder Information furnished by such Selling Shareholder.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the International Managers on the other hand
in connection with the offering of the International Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of the International Securities pursuant
to this Agreement
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(before deducting expenses) received by the Company and the Selling
Shareholders and the total underwriting discount received by the International
Managers, in each case as set forth on the cover of the International
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the International
Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the
one hand and the International Managers on the other hand shall be determined
by reference to, among other things, whether any such 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
Shareholders or by the International Managers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Selling Shareholders and the International Managers
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the International
Managers were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 7. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section 7 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, each Selling
Shareholder's aggregate liability pursuant to this Section 7 and Section 6
shall not exceed an amount equal to the net proceeds (before deducting
expenses) received by such Selling Shareholder from the sale of the Securities
pursuant to this Agreement.
The Selling Shareholders respective obligations to contribute pursuant
to this Section 7 are several and not joint.
Notwithstanding the provisions of this Section 7, no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Manager has otherwise been required to pay
by reason of any 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 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company or any Selling Shareholder within the meaning of Section
15 of the 1933 Act or Section
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20 of the 1934 Act shall have the same rights to contribution as the Company or
such Selling Shareholder, as the case may be. The International Managers'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial International Securities set forth opposite
their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement or other
obligation among the Company and any of the Selling Shareholders with respect
to contribution, including, without limitation, those agreements and
obligations under the Company's Certificate of Incorporation, the GARI
Registration Rights Agreement and the Series F Purchase Agreements.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries or the Selling Shareholders submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any International Manager or controlling person, or by
or on behalf of the Company or the Selling Shareholders, and shall survive
delivery of the Securities to the International Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Lead Managers may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the International
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or
economic conditions, in each case the effect of which is such as to make it, in
the judgment of the Lead Managers, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the International Managers. If
one or more of the International Managers shall fail at Closing Time or a Date
of Delivery to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the
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Lead Managers shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting International Managers, or
any other underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Lead Managers shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, each of the
non-defaulting International Managers shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of International Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the International Managers to purchase and of the Company to sell
the Option Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting International
Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the Lead Managers
or the Company and the Selling Shareholders shall have the right to postpone
Closing Time or the relevant Date of Delivery, as the case may be, for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "International Manager" includes any person
substituted for an International Manager under this Section 10.
SECTION 11. Default by one or more of the Selling Shareholders or the
Company.
(a) If one or more Selling Shareholders shall fail at Closing Time to
sell and deliver the number of Securities which such Selling Shareholders are
obligated to sell hereunder, and the remaining Selling Shareholders do not
exercise the right hereby granted to increase, pro rata or otherwise, the
number of Securities to be sold by them hereunder to the total number to be
sold by all Selling Shareholders as set forth in Schedule B hereto, then the
International Managers may, at the option of the Lead Managers, by notice from
the Lead Managers to the Company and the non-defaulting Selling Shareholders,
either (a) terminate this Agreement without any liability on the fault of any
non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8
shall remain in full force and effect or (b) elect to purchase the Securities
which the non-defaulting Selling Shareholders and the Company have agreed to
sell hereunder. No action taken pursuant to this Section 11 shall relieve any
Selling Shareholder so defaulting from liability, if any, in respect of such
default.
In the event of a default by any Selling Shareholder as referred to in
this Section 11, each of the Lead Managers and the Company and the
non-defaulting Selling Shareholders shall have the
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right to postpone Closing Time for a period not exceeding seven days in order
to effect any required change in the Registration Statement or Prospectus or in
any other documents or arrangements.
(b) If the Company shall fail at Closing Time or at the Date of
Delivery to sell the number of Securities that it is obligated to sell
hereunder, then this Agreement shall terminate without any liability on the
part of any non-defaulting party; provided, however, that the provisions of
Sections 1, 4, 6, 7, and 8 shall remain in full force and effect. No action
taken pursuant to this Section shall relieve the Company from liability, if
any, in respect of such default.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers at Ropemaker
Place, 25 Ropemaker Street, London EC24 9L4, England, attention of Syndicate
Department; and notices to the Company shall be directed to it at 1201
Louisiana, Suite 1400, Houston, Texas 77002, attention of Chief Executive
Officer and to the Selling Shareholders to their Attorneys-in-Fact: John B.
Brock and Jonathan M. Clarkson, at the Company's address set forth above.
SECTION 13. Parties. This Agreement shall each inure to the benefit
of and be binding upon the International Managers, the Company and the Selling
Shareholders and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the International Managers, the Company
and the Selling Shareholders and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the International
Managers, the Company and the Selling Shareholders and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Securities from any International Manager
shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME, UNLESS OTHERWISE INDICATED.
SECTION 15. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the International Managers and the Company in accordance with
its terms.
Very truly yours,
UNITED MERIDIAN CORPORATION
By:
-----------------------------------------
Title:
[ATTORNEY-IN-FACT]
By:
-----------------------------------------
As Attorney-in-Fact on behalf of the
Selling Shareholders named in Schedule
B hereto.
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH INTERNATIONAL
J. P. MORGAN SECURITIES LTD.
HOWARD, WEIL, LABOUISSE,
FRIEDRICH INCORPORATED
PETRIE, PARKMAN & CO., INC.
By: MERRILL LYNCH INTERNATIONAL
By
-------------------------------------
Authorized Signatory
For themselves and as Lead Managers of the
other International Managers named in Schedule A hereto.
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SCHEDULE A
Number of
Initial International
Name of International Manager Securities
----------------------------- ---------------------
Merrill Lynch International . . . . . . . . . . . . . .
J. P. Morgan Securities Ltd. . . . . . . . . . . . . .
Howard, Weil, Labouisse, Friedrich Incorporated . . . .
Petrie, Parkman & Co., Inc. . . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . 1,150,000
=========
29
SCHEDULE B
Maximum Number
Number of Initial of International
International Option ecurities to
Securities to be Sold be Sold
--------------------- -------------------
United Meridian Corporation . . . . . . . . . . . . . . . . 650,000 172,500
General Atlantic Corporation . . . . . . . . . . . . . . . 250,000 --
John Hancock Mutual Life Insurance Company . . . . . . . . 200,000 --
The Travelers Insurance Company . . . . . . . . . . . . . . 22,500 --
The Travelers Indemnity Company . . . . . . . . . . . . . . 22,000 --
The Travelers Life and Annuity Company . . . . . . . . . . 2,500 --
The Phoenix Insurance Company . . . . . . . . . . . . . . . 3,000 --
--------------------- -------------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,150,000 172,500
30
SCHEDULE C
UNITED MERIDIAN CORPORATION
1,150,000 Shares of Series A Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $[ ].
2. The purchase price per share for the International Securities to
be paid by the several International Managers shall be $[ ], being an
amount equal to the initial public offering price set forth above less $[
] per share; provided that the purchase price per share for any International
Option Securities purchased upon the exercise of the over-allotment option
described in Section 2(b) shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and payable on the Initial
International Securities but not payable on the International Option
Securities.
31
SCHEDULE D
SIGNIFICANT SUBSIDIARIES OF UNITED MERIDIAN CORPORATION
NAME JURISDICTION
---- IN WHICH ORGANIZED
------------------
UMC Petroleum Corporation Delaware
UMC Resources Canada Ltd. British Columbia, Canada
UMC Equitorial Guinea Corporation Delaware
UMC Pipeline Corporation Delaware
UMIC Cote d'Ivoire Corporation Delaware
United Meridian International Corporation Delaware
Norfolk Holdings Inc. Delaware
UMIC (CI-01) Corporation Delaware
UMIC (CI-02) Corporation Delaware
UMIC (CI-12) Corporation Delaware
UMIC (CI-105) Corporation Delaware
UMIC Bangladesh Corporation Delaware
UMC Pakistan Corporation Delaware
UMC Ghana Corporation Delaware
Big Sky Gas Marketing Corporation Delaware
32
SCHEDULE E
List of persons and entities
subject to lock-up
Lee B. Backsen
J. Dennis Bonney
John B. Brock
Charles R. Carson
Jonathan M. Clarkson
Christopher E. Cragg
Robert H. Dedman
Steven A. Denning
James L. Dunlap
Daniel P. Foley
Gary McGregor
Robert L. Howard
Marya M. Ingram
Robert V. Lindsay
Elvis L. Mason
Kevin D. McMillan
James L. Murdy
David K. Newbigging
John J. Patton
Matthew R. Simmons
Jim Smitherman
Walter B. Wriston
Donald D. Wolf
33
EXHIBIT A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the U.S.
Purchase Agreement and the International Purchase Agreement.
(iii) To our knowledge, the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction
in which such qualification is required, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectuses in the column entitled "Historical"
under the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the U.S. Purchase Agreement and the International Purchase
Agreement or pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectuses or pursuant to the exercise of convertible
securities, options or rights referred to in the Prospectuses and except for
the authorized and undesignated preferred stock of the Company); and the shares
of issued and outstanding capital stock have been duly authorized and validly
issued and are fully paid and non-assessable.
(v) The Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for issuance
and sale to the Underwriters pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement, respectively, and, when issued and delivered
by the Company pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement, respectively, against payment of the consideration set
forth in the U.S. Purchase Agreement and the International Purchase Agreement,
will be validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities to be purchased from the Company
pursuant to the U.S. Purchase Agreement and the International Purchase
Agreement is not subject to the preemptive or other similar rights arising by
operation of law or, to the best of our knowledge, otherwise.
(vii) Each subsidiary of the Company set forth on Exhibit D to the U.S.
Purchase Agreement has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses and, to
our knowledge, is duly qualified as a foreign corporation to transact business
and is in good standing in each U.S. and Canadian jurisdiction in which such
qualification is required, except where the failure
A-1
34
so to qualify or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration Statement, all of the
issued and outstanding capital stock of each Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, to the
best of our knowledge, is owned by the Company (excluding Havre Pipeline LLC),
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity other than shares of
capital stock pledged to secure borrowings.
(viii) The U.S. Purchase Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered by the Company.
(ix) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the Prospectuses pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); and, to our
knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are
pending or threatened by the Commission.
(x) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434 Information,
as applicable, the Prospectuses, excluding the documents incorporated by
reference therein, and each amendment or supplement to the Registration
Statement and the Prospectuses, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements and supporting schedules (including the notes thereto
and the auditors' report thereon) and the reserve information or other
financial or accounting data included therein or omitted therefrom, as to which
we need express no opinion) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
(xi) The documents incorporated by reference in the Prospectuses
(other than the financial statements and supporting schedules (including the
notes thereto and the auditors' report thereon) and the reserve information or
other financial or accounting data included therein or omitted therefrom, as to
which we need express no opinion), when they were filed with the Commission
complied as to form in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder.
(xii) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the charter and by-laws of the Company and
the requirements of the New York Stock Exchange.
(xiii) To our knowledge, there are no legal or governmental proceedings
pending or threatened that are required to be disclosed in the Registration
Statement, other than as disclosed therein.
(xiv) The information set forth in Items 1 and 2 Business and
Properties -- Environmental Matters -- United States Environmental Regulations
of the Company's Annual Report on Form 10-K for the year ended December 31,
1995 and in the Registration Statement under Item 15, to the extent that it
constitutes matters of law, summaries of legal matters, the Company's charter
and
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bylaws or legal proceedings, or legal conclusions, has been reviewed by us and
is correct in all material respects.
(xv) To our knowledge, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein, filed or incorporated by
reference as exhibits thereto, the descriptions thereof or references thereto
are correct in all material respects, and no default exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument so described, referred to, filed or incorporated by
reference as exhibits thereto, which default would have a Material Adverse
Effect.
(xvi) No authorization, approval, consent or order of any court or
governmental authority or agency is required in connection with the sale of the
Securities by the Company to the Underwriters, except such as may be required
under the 1933 Act or the 1933 Act Regulations or state securities laws; and to
our knowledge, the execution and delivery of the U.S. Purchase Agreement and
the International Purchase Agreement and the consummation of the transactions
contemplated therein and compliance by the Company with its obligations
thereunder (including the use of the proceeds from the sale of the Securities
as described in the Prospectuses under the caption "Use of Proceeds") will not,
whether with or without the giving of notice or lapse of time or both, conflict
with or constitute a breach of, or default under, result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such action result in any violation of
the provisions of the charter or bylaws of the Company, or any applicable law,
administrative regulation or court decree.
We inform you that we have participated in conferences with officers and
other representatives of the Company and representatives of the independent
public accountants for the Company and the Underwriters and representatives of
legal counsel for the Underwriters, at which conferences the contents of the
Registration Statement and the Prospectuses relating to the Company were
discussed and, although we are not passing upon and do not assume any
responsibility for and shall not be deemed to have independently verified the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectuses, on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of officers and
other representatives of the Company), no facts have come to our attention that
would lead us to believe that the Registration Statement or any amendment
thereto, including the Rule 430A Information and Rule 434 Information (if
applicable), (except for financial statements and schedules (including the
notes and auditors' reports thereon) and other financial data or reserve
information included or incorporated by reference therein or omitted therefrom,
as to which we need make no statement), at the time such Registration Statement
or any such amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectuses or any amendment or supplement thereto (except for financial
statements and schedules (including the notes and auditors' reports thereon)
and other financial data and reserve information included or incorporated by
reference therein or omitted therefrom, as to which we need make no statement),
at the time the
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Prospectuses were issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of jurisdictions other than the State of
Texas or New York, the Delaware General Corporation Law or United States
federal laws on local counsel in such jurisdictions (which opinion shall be
furnished to the U.S. Underwriters at the Closing Time and shall expressly
state that the U.S. Underwriters may rely on such opinion as if it were
addressed to them), provided that Akin, Gump, Strauss, Hauer & Feld, L.L.P.
shall state in their opinion that they believe that they and the U.S.
Underwriters are justified in relying upon such opinion, and (B), as to matters
of fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it
is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991).
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EXHIBIT B
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than the issuance of the order
of the Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state
securities laws, as to which we need express no opinion) is necessary or
required to be obtained by the Selling Shareholders for the performance by each
Selling Shareholder of its obligations under the U.S. Purchase Agreement or the
International Purchase Agreement or in the Power of Attorney and Custody
Agreement, or in connection with the offer, sale or delivery of the Securities.
(ii) Each Power of Attorney and Custody Agreement has been duly
executed and delivered by the respective Selling Shareholders named therein and
constitutes the legal, valid and binding agreement of such Selling Shareholder,
subject to bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or other similar laws affecting creditors' rights
generally and general principals of equity (whether considered in a proceeding
at law or in equity).
(iii) The U.S. Purchase Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered by or on behalf of
each Selling Shareholder.
(iv) To our actual knowledge, each Selling Shareholder has good and
valid title to the Securities to be sold by such Selling Shareholder pursuant
to the U.S. Purchase Agreement and the International Purchase Agreement, free
and clear of any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind other than created pursuant to the U.S. Purchase
Agreement, the International Purchase Agreement, Power of Attorney or Custody
Agreement and has full right, power and authority to sell, transfer and deliver
such Securities pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement. By delivery of a certificate or certificates therefor such
Selling Shareholder will transfer to the Underwriters who have purchased such
Securities pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement in good faith and without notice of any such pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind or any
other adverse claim within the meaning of New York Uniform Commercial Code good
and valid title to such Securities, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind.
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EXHIBIT C
MERRILL LYNCH & CO. MERRILL LYNCH INTERNATIONAL
Merrill Lynch, Pierce, Fenner & Smith J. P. Morgan Securities Ltd.
Incorporated, Howard, Weil, Labouisse,
J. P. Morgan Securities, Inc. Friedrichs Incorporated
Howard, Weil, Labouisse, Petrie, Parkman & Co., Inc.
Friedrichs Incorporated as Lead Managers of the several
Petrie, Parkman & Co., Inc. International Managers to be named in the
as U.S. Representatives of the several within-mentioned International Purchase
U.S. Underwriters to be named in the Agreement
within-mentioned U.S. Purchase Agreement c/o Merrill Lynch International
c/o Merrill Lynch & Co. Ropemaker Place
Merrill Lynch, Pierce, Fenner & Smith 25 Ropemaker Street
Incorporated London EC24 9L4
North Tower England
World Financial Center
New York, New York 10281-1209
Re: Proposed Public Offering by United Meridian Corporation
Dear Sirs:
The undersigned, an officer and/or director of United Meridian
Corporation, a Delaware corporation (the "Company"), understands that Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill
Lynch"), J. P. Morgan Securities Inc., Howard, Weil, Labouisse, Friedrichs
Incorporated and Petrie, Parkman & Co., Inc. propose to enter into a U.S.
Purchase Agreement (the "U.S. Purchase Agreement") with the Company providing
for the public offering of shares of the Company's common stock, par value $.01
per share (the "Common Stock"). The undersigned further understands that
Merrill Lynch International ("Merrill Lynch International"), J.P. Morgan
Securities Ltd, Howard, Weil, Labouisse, Friedrichs Incorporated and Petrie,
Parkman & Co., Inc. propose to enter into an International Purchase Agreement
(the "International Purchase Agreement") with the Company providing for the
public offering of shares of Common Stock. In recognition of the benefit that
such offerings will confer upon the undersigned as an officer and/or director
of the Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the U.S. Purchase Agreement or the International
Purchase Agreement that, during a period of 90 days from the date of the U.S.
Purchase Agreement and the International Purchase Agreement, the undersigned
will not, without the prior written consent of Merrill Lynch and Merrill Lynch
International, directly or indirectly, except for a Permitted Disposition (as
defined below) (i) offer, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell,
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grant any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock, whether now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or file any registration statement
under the Securities Act of 1933, as amended, with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities,
in cash or otherwise. A "Permitted Disposition" for purposes hereof means a
bona fide gift, provided that the donee thereof agrees in writing to be bound
by the restrictions imposed by this letter.
Very truly yours,
Signature:
Print Name:
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ANNEX A
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(g)
We are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations.
(i) in our opinion, the audited financial statements and the related
financial statement schedules included or incorporated by reference in the
Registration Statement and the Prospectuses comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
published rules and regulations thereunder;
(ii) on the basis of procedures (but not an examination in accordance
with generally accepted auditing standards) consisting of a reading of the
unaudited interim consolidated financial statements of the Company for the
three month periods ended March 31, 1995 and March 31, 1996, and the three and
six month periods ended June 30, 1995 and June 30,1996, included or
incorporated by reference in the Registration Statement and the Prospectuses
(collectively, the "10-Q Financials"), a reading of the minutes of all meetings
of the stockholders and directors of the Company and its subsidiaries and the
_________________ and ________________ Committees of the Company's Board of
Directors and any subsidiary committees since December 31, 1995, inquiries of
certain officials of the Company and its subsidiaries responsible for financial
and accounting matters, a review of interim financial information in accordance
with standards established by the American Institute of Certified Public
Accountants in Statement on Auditing Standards No. 71, Interim Financial
Information ("SAS 71"), with respect to the periods referenced above and such
other inquiries and procedures as may be specified in such letter, nothing came
to our attention that caused us to believe that:
(A) the 10-Q Financials incorporated by reference in the Registration
Statement and the Prospectuses do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act and the
1934 Act Regulations applicable to unaudited financial statements included in
Form 10-Q or any material modifications should be made to the 10-Q Financials
incorporated by reference in the Registration Statement and the Prospectuses
for them to be in conformity with generally accepted accounting principles;
(B) at [_________, 19___ and at] a specified date not more than five
days prior to the date of this Agreement, there was any change in the
___________ of the Company and its subsidiaries or any decrease in the
__________ of the Company and its subsidiaries or any increase in the
__________ of the Company and its subsidiaries, in each case as compared with
amounts shown in the latest balance sheet included in the Registration
Statement, except in each case for changes, decreases or increases that the
Registration Statement discloses have occurred or may occur; or
(C) [for the period from _________, 19___ to _________, 19___ and]
for the period from _________, 19___ to a specified date not more than five
days prior to the date of this Agreement,
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there was any decrease in _________, __________ or ___________, in each case as
compared with the comparable period in the preceding year, except in each case
for any decreases that the Registration Statement discloses have occurred or
may occur;
(iii) based upon the procedures set forth in clause (ii) above and a
reading of the [Selected Financial Data] included in the Registration Statement
[and a reading of the financial statements from which such data were derived],
nothing came to our attention that caused us to believe that the [Selected
Financial Data] included in the Registration Statement do not comply as to form
in all material respects with the disclosure requirements of Item 301 of
Regulation S-K of the 1933 Act [, that the amounts included in the [Selected
Financial Data] are not in agreement with the corresponding amounts in the
audited consolidated financial statements for the respective periods or that
the financial statements not included in the Registration Statement from which
certain of such data were derived are not in conformity with generally accepted
accounting principles];
(iv) we have compared the information in the Registration Statement
under selected captions with the disclosure requirements of Regulation S-K of
the 1933 Act and on the basis of limited procedures specified herein. Nothing
came to our attention that caused us to believe that this information does not
comply as to form in all material respects with the disclosure requirements of
Items 302, 402 and 503(d), respectively, of Regulation S-K;
[(v) based upon the procedures set forth in clause (ii) above, a
reading of the unaudited financial statements of the Company for [the most
recent period] that have not been included in the Registration Statement and a
review of such financial statements in accordance with SAS 71, nothing came to
our attention that caused us to believe that the unaudited amounts for
_____________ for the [most recent period] do not agree with the amounts set
forth in the unaudited consolidated financial statements for those periods or
that such unaudited amounts were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited [consolidated]
financial statements;]
[(vi)] in addition to the procedures referred to in clause (ii) above,
we have performed other procedures, not constituting an audit, with respect to
certain amounts, percentages, numerical data and financial information
appearing in the Registration Statement, which are specified herein, and have
compared certain of such items with, and have found such items to be in
agreement with, the accounting and financial records of the Company.
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