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EXHIBIT 1.2
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ENERGY PARTNERS, LTD.
(a Delaware corporation)
1,150,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: ___________, 2000
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TABLE OF CONTENTS
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U.S. PURCHASE AGREEMENT...........................................................................................1
SECTION 1. Representations and Warranties.........................................................3
(a) Representations and Warranties by the Company..........................................3
(i) Compliance with Registration Requirements.....................................3
(ii) Independent Accountants.......................................................4
(iii) Financial Statements..........................................................4
(iv) No Material Adverse Change in Business........................................4
(v) Good Standing of the Company..................................................5
(vi) Good Standing of Subsidiaries.................................................5
(vii) Capitalization................................................................5
(viii) Authorization of Agreement....................................................6
(ix) Authorization and Description of Securities...................................6
(x) Absence of Defaults and Conflicts.............................................6
(xi) Absence of Labor Dispute......................................................7
(xii) Absence of Proceedings........................................................7
(xiii) Accuracy of Exhibits..........................................................7
(xiv) Possession of Intellectual Property...........................................7
(xv) Absence of Further Requirements...............................................8
(xvi) Possession of Licenses and Permits............................................8
(xvii) Title to Property.............................................................8
(xviii) Environmental Laws............................................................8
(xix) Registration Rights...........................................................9
(xx) Related Party Transactions....................................................9
(xxi) Statistical Data..............................................................9
(xxii) Accounting and Other Controls.................................................9
(xxiii) Reserve Estimates.............................................................9
(b) Officer's Certificates................................................................10
SECTION 2. Sale and Delivery to International Managers; Closing..................................10
(a) Initial Securities....................................................................10
(b) Option Securities.....................................................................10
(c) Payment...............................................................................10
(d) Denominations; Registration...........................................................11
SECTION 3. Covenants of the Company..............................................................11
(a) Compliance with Securities Regulations and Commission Requests........................11
(b) Filing of Amendments..................................................................12
(c) Delivery of Registration Statements...................................................12
(d) Delivery of Prospectuses..............................................................12
(e) Continued Compliance with Securities Laws.............................................12
(f) Blue Sky Qualifications...............................................................13
(g) Rule 158..............................................................................13
(h) Use of Proceeds.......................................................................13
(i) Listing...............................................................................13
(j) Restriction on Sale of Securities.....................................................13
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(k) Reporting Requirements................................................................14
(l) Compliance with Rule 463..............................................................14
SECTION 4. Payment of Expenses...................................................................14
(a) Expenses..............................................................................14
(b) Termination of Agreement..............................................................14
SECTION 5. Conditions of International Managers' Obligations.....................................15
(a) Effectiveness of Registration Statement...............................................15
(b) Opinion of Counsel for Company........................................................15
(c) Opinion of Counsel for International Managers.........................................15
(d) Officers' Certificate.................................................................15
(e) Accountant's Comfort Letter...........................................................16
(f) Bring-down Comfort Letter.............................................................16
(g) Approval of Listing...................................................................16
(h) No Objection..........................................................................16
(i) Lock-up Agreements....................................................................16
(j) Purchase of Initial U.S. Securities...................................................16
(k) Conditions to Purchase of International Option Securities.............................16
(i) Officers' Certificate........................................................16
(ii) Opinion of Counsel for Company...............................................16
(iii) Opinion of Counsel for International Managers................................17
(iv) Bring-down Comfort Letter....................................................17
(l) Additional Documents..................................................................17
(m) Termination of Agreement..............................................................17
SECTION 6. Indemnification.......................................................................17
(a) Indemnification of International Managers.............................................17
(b) Indemnification of Company, Directors and Officers....................................18
(c) Actions against Parties; Notification.................................................19
(d) Settlement without Consent if Failure to Reimburse....................................19
SECTION 7. Contribution..........................................................................20
SECTION 8. Representations, Warranties and Agreements to Survive Delivery........................21
SECTION 9. Termination of Agreement..............................................................21
(a) Termination; General..................................................................21
(b) Liabilities...........................................................................22
SECTION 10. Default by One or More of the International Managers..................................22
SECTION 11. Notices...............................................................................22
SECTION 12. Parties...............................................................................23
SECTION 13. GOVERNING LAW.........................................................................23
SECTION 14. CONSENT TO JURISDICTION...............................................................23
SECTION 15. Effect of Headings....................................................................23
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SCHEDULES
Schedule A - List of Underwriters.........................................................Sch A-1
Schedule B - Pricing Information..........................................................Sch B-1
Schedule C - List of Persons subject to Lock-up...........................................Sch C-1
EXHIBITS
Exhibit A - Forms of Opinion of Company's Counsel............................................A-1
Exhibit B - Form of Lock-up Letter...........................................................B-1
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ENERGY PARTNERS, LTD.
(a Delaware corporation)
1,150,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
___________, 2000
MERRILL LYNCH INTERNATIONAL
UBS AG, acting through its business group UBS Warburg
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
HOWARD WEIL, a division of Legg Mason Wood Walker, Inc.
as Lead Managers of the several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Ladies and Gentlemen:
Energy Partners, Ltd., a Delaware corporation (the "Company"), confirms
its agreement with Merrill Lynch International ("Merrill Lynch"), UBS AG, acting
through its business group UBS Warburg, Credit Suisse First Boston (Europe)
Limited and Howard Weil, a division of Legg Mason Wood Walker, Inc.
(collectively, the "Lead Managers") and the "International Managers" named on
Schedule A hereto for whom the Lead Managers are acting as representatives and
which term shall include the Lead Managers and any underwriter substituted as
hereinafter provided in Section 10 hereof, with respect to the issue and sale by
the Company and the purchase by the International Managers, acting severally and
not jointly, of the respective numbers of shares of Common Stock, par value $.01
per share, of the Company ("Common Stock") set forth in Schedule A, and with
respect to 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."
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company 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 & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Warburg
LLC, Credit Suisse First Boston Corporation and Howard Weil, a division of Legg
Mason Wood Walker, 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
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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 is not obligated to sell and the International Underwriters 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 U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters," the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities," and the U.S. Securities, and the International 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 understands 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-1 (No. 333-42876) 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 U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International 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 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 U.S. Prospectus and Form of International
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 and
schedules thereto 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
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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 U.S.
Prospectus and the final Form of International Prospectus in the forms first
furnished to the Underwriters for use in connection with the offering of the
Securities are herein called the "U.S. Prospectus" and the "International
Prospectus," respectively, and collectively, the "Prospectuses." If Rule 434 is
relied on, the terms "U.S. Prospectus" and "International Prospectus" shall
refer to the preliminary U.S. Prospectus dated _____, 2000 and preliminary
International Prospectus dated ____, 2000, 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 U.S. Prospectus, the International 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").
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:
(i) Compliance with Registration Requirements. 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.
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 and the Prospectuses shall not be "materially
different", as such term is used in Rule 434, from the prospectuses
included in the Registration Statement at the time it became effective.
The representations and warranties in this subsection shall not apply
to statements in or
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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 or on behalf of any
International Manager through the Lead Managers or the U.S.
Representatives 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) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included
in the Registration Statement and the Prospectuses, together with the
related schedules and notes, present fairly in all material respects
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
and the statements of revenues and direct operating expenses of (1) the
50% interest in South Timbalier Block 26 and (2) Ocean Energy, Inc.'s
98.5% interest in the East Bay Complex, each for the periods specified;
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 included in the Registration Statement present fairly in all
material respects 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 the
information shown therein and have been compiled on a basis consistent
with that of the audited and pro forma financial statements included in
the Registration Statement. The pro forma consolidated financial
statements and the related notes thereto included in the Registration
Statement and the Prospectuses present fairly in all material respects
the information shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(iv) 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
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ordinary course of business (a "Material Adverse Effect"), (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
Prospectuses, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(v) 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.
(vi) Good Standing of Subsidiaries. The Company has no
"significant subsidiaries" (as such term is defined in Rule 1-02 of
Regulation S-X). The only subsidiary of the Company ("Subsidiary") is
organized and is validly existing as a limited liability company in
good standing under the laws of the jurisdiction of its organization,
has corporate power and authority to own, lease and operate its
properties and is duly qualified as a foreign company 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; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding membership
interests of the Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding shares of capital stock of the Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
the Subsidiary. The only subsidiary of the Company is the subsidiary
listed on Exhibit 21.1 to the Registration Statement.
(vii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectuses in the
column entitled "Actual" under the caption "Capitalization" and, as of
the Closing Time and each Date of Delivery, the authorized, issued and
outstanding capital stock of the Company will be as set forth in the
Prospectuses in the column entitled "As Adjusted" 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 or options referred to in the
Prospectuses). 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.
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(viii) Authorization of Agreement. This Agreement and the
International Purchase Agreement have been duly authorized, executed
and delivered by the Company.
(ix) Authorization and Description of Securities. 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 U.S. Underwriters pursuant to the U.S.
Purchase Agreement and the International Managers pursuant to this
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; no holder of
the Securities will be subject to personal liability by reason of being
such a holder; and the issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the
Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is (1) 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 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, individually or in the aggregate, would not result in a Material
Adverse Effect or (2) in violation in any material respect of any law,
ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or
assets or to the conduct of its business, except for such violations or
failures that, individually or in the aggregate, 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 and the use of the proceeds from the sale of the
Securities 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 and, except as disclosed
in the Prospectuses, 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 or Repayment Event (as defined
below) 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
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or foreign, having jurisdiction over the Company or any subsidiary or
any of their assets, properties or operations, except as would not have
a Material Adverse Effect. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any subsidiary.
(xi) 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, customers or
contractors, which, in either case, would reasonably be expected to
result in a Material Adverse Effect.
(xii) Absence of Proceedings. Except as disclosed in the
Prospectuses, 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, 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; the aggregate of 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, would
not reasonably be expected to result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectuses or to be filed as exhibits thereto which
have not been so described and filed as required.
(xiv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
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(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency or body is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the offering,
issuance or sale 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 as may be required under the 1933 Act or the
1933 Act Regulations and foreign or state securities or blue sky laws
or as required by the NASD or NYSE.
(xvi) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, except
where the failure to comply would not, singly or in the aggregate, have
a Material Adverse Effect; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xvii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectuses or (b) do
not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries; and all of
the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in the
Prospectuses, are in full force and effect, and neither the Company nor
any subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary
to the continued possession of the leased or subleased premises under
any such lease or sublease.
(xviii) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, or
administrative order, consent decree or judgment, relating to pollution
or protection of the environment
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(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata), including, without
limitation, laws and regulations relating to the release or threatened
release of Hazardous Materials or to the manufacture, processing,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company and its
subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or, to the knowledge of
the Company, threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigations or proceedings pursuant to any
Environmental Law against the Company or any of its subsidiaries and
(D) to the knowledge of the Company, there are no events or
circumstances that would be expected to result in liability of the
Company or any of its subsidiaries under any Environmental Laws.
"Hazardous Materials" means chemicals, pollutants, contaminants,
wastes, substances or materials, including petroleum or petroleum
products, regulated under applicable Environmental Laws.
(xix) Registration Rights. Except as disclosed in the
Registration Statement and the Prospectuses, there are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act. With respect to the
Registration Statement and offering of Securities contemplated thereby,
any applicable such registration and similar rights have been
irrevocably waived by the holders thereof.
(xx) Related Party Transactions. No relationship, direct or
indirect, exists between or among the Company or any of their
respective subsidiaries, on the one hand, and the directors, officers,
shareholders, customers or suppliers of the Company or any of their
respective subsidiaries on the other hand, which is required to be
described in the Prospectuses which is not so described.
(xxi) Statistical Data. The statistical data included in the
Prospectuses are derived from sources which the Company reasonably and
in good faith believes to be accurate, reasonable and reliable and
agrees with the sources from which it was derived.
(xxii) Accounting and Other Controls. The Company has
established a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions were, are and will
be executed in accordance with management's general or specific
authorization; (ii) transactions were, are and will be recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets was, is and will be
permitted only in accordance with a management's general or specific
authorizations; and (iv) the recorded accountability for assets was, is
and will be compared with existing assets at reasonable intervals and
appropriate action was, is and will be taken with respect to any
differences.
(xxiii) Reserve Estimates. The information that was provided
by the Company, and its Subsidiary, on the basis of which the reserve
estimates and related information
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included in each Registration Statement and the Prospectus or
incorporated by reference therein was prepared, is true and correct in
all material respects.
(b) Officer's Certificates. Any certificate of the Company signed by
any officer of the Company or any of its subsidiaries delivered to the Global
Coordinator, 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.
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 agrees to sell to each International Manager, severally and
not jointly, and each International Manager, severally and not jointly, agrees
to purchase from the Company, at the price per share set forth in Schedule B,
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.
(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 B, 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 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 Global
Coordinator 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 Managers 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 the
Company, 201 St. Charles Avenue, New Orleans, Louisiana 70170, or at such other
place as shall be agreed upon by the Global Coordinator and the Company, at 9:00
A.M. (Eastern 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
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(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 (such time and date of payment
and delivery being herein called "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 by wire transfer of immediately
available funds to a bank account designated by the Company, 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 Managers 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 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
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<PAGE> 16
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,
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 and promptly 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 Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Lead Managers, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the International
Managers. 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 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 Securities Exchange Act of 1934 (the "1934 Act"), but not later
than one year from the date of this Agreement, 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 rules
and regulations promulgated thereunder (the "1934 Act Regulations") so as to
permit the completion of the distribution of the Securities as contemplated in
this Agreement and the U.S. Purchase Agreement and in the Prospectuses. If at
any time when a prospectus is required by the 1933 Act or the 1934 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 reasonable
opinion of counsel for the International Managers or for the Company, to amend
the Registration Statement or
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<PAGE> 17
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 reasonable 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, the 1933
Act Regulations, the 1934 Act or the 1934 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 use its reasonable
efforts, 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 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 reasonable efforts to effect the
listing of the Common Stock on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 180 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
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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
or warrant or the conversion of a security outstanding 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 referred to in the Prospectuses or (D) any shares of Common
Stock issued pursuant to any non-employee director stock plan or dividend
reinvestment plan or (E) the filing of any registration statement on Form S-3 or
S-8 referred to in the Prospectuses relating to shares of Common Stock that have
been or may be issued under clauses (A) through (D) above.
(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.
(l) Compliance with Rule 463. The Company will file with the Commission
such reports on Form SR as may be required pursuant to Rule 463 of the 1933 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations 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 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 U.S. Underwriters and the International Managers,
(iv) the fees and disbursements of the Company's counsel, accountants and other
advisors, (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 not in
excess of $15,000 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 fees and expenses of any transfer agent or registrar for the Securities and
(viii) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters not in excess of $2,000 in connection with, the
review by the NASD of the terms of the sale of the Securities and (ix) 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 Sections 5(a) through 5(g)
and 5(i) or Section 9(a)(i) hereof, the Company shall reimburse the
International Managers for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the International
Managers.
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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 contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company 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 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 favorable opinion, dated as of Closing Time, of (i)
Cahill Gordon & Reindel, outside counsel for the Company, (ii) Jean Stallard,
the Company's Vice President-Assistant General Counsel, and (iii) Hickey &
Riess, LLC, and (iv) Nixon Peabody LLP, special counsel to the Company regarding
FERC matters, all in form 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 Exhibits
A-1, A-2, A-3 and A-4 respectively hereto.
(c) Opinion of Counsel for International Managers. At Closing Time, the
Lead Managers shall have received the favorable opinion, dated as of Closing
Time, of Baker Botts L.L.P., counsel for the International Managers, together
with signed or reproduced copies of such letter for each of the other
International Managers in form and substance reasonably satisfactory to the
International Managers.
(d) 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 Company signed by the President or a
Vice President of the Company and by 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 in all material respects
with the same force and effect as though expressly made at and as of Closing
Time, (iii) the Company has complied in all material respects 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 no proceedings for that
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<PAGE> 20
purpose have been instituted or are pending or to the best of such officers'
knowledge, are contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Lead Managers shall have received from KPMG 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.
(f) Bring-down Comfort Letter. At Closing Time, the Lead Managers shall
have received from KPMG LLP a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date referred to shall
be a date not more than three business days prior to Closing Time.
(g) 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.
(h) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(i) Lock-up Agreements. At the date of this Agreement, the Lead
Managers shall have received an agreement substantially in the form of Exhibit B
hereto signed by the persons listed on Schedule C hereto.
(j) 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.
(k) 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 Company signed by the President or a Vice President of
the Company and by the chief financial or chief accounting officer of
the Company confirming that the certificate delivered at the Closing
Time pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of
Cahill Gordon & Reindel, outside counsel for the Company, with respect
to matters set forth in paragraphs (i), (v) and (xii) of Exhibit A-1,
and of Jean Stallard, the Company's Vice President and Assistant
General Counsel, with respect to matters set forth in paragraphs
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(ii) and (vii) of Exhibit A-2, in form reasonably 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.
(iii) Opinion of Counsel for International Managers. The
favorable opinion of Baker Botts L.L.P., 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 KPMG 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(f) 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.
(l) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the International Managers shall have been furnished with such
documents as they may reasonably 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 reasonably satisfactory in form and substance to
the Lead Managers and counsel for the International Managers.
(m) 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 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
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
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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; provided that (subject
to Section 6(d) below) any such settlement is effected with the written
consent of the Company; 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), (ii) or (iii) above;
provided, however, 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 or on
behalf of any International Manager through the Lead Managers 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 U.S. Prospectus (or any amendment or supplement thereto)
provided, further, that with respect to any untrue statements or omission of
material fact made in any preliminary prospectus, this indemnity shall not inure
to the benefit of any International Manager from whom the person asserting any
such loss, claim, damage or liability purchased the securities concerned, to the
extent that any such loss, claim, damage or liability of such International
Manager occurs under the circumstances where (x) the Company had previously
furnished copies of the final Prospectus to the Lead Managers, (y) the untrue
statement or omission, or alleged untrue statement or omission, contained in the
preliminary prospectus was corrected in the final Prospectus and (z) there was
not sent or given to such person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the final Prospectus.
(b) Indemnification of Company, Directors and Officers. 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 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
International Prospectus or the International Prospectus (or any
18
<PAGE> 23
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such International
Manager through the Lead Managers expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary International
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. 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 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) and Section 6(a)(iii) 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. Notwithstanding the immediately preceding sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the nature
contemplated by Section 6(a)(ii) or Section 6(a)(iii) effected without its
consent if such indemnifying party (i) reimburses such indemnified party in
accordance with such request to
19
<PAGE> 24
the extent it considers such request to be reasonable and (ii) provides written
notice to the indemnified party substantiating the unpaid balance as
unreasonable, in each case prior to the date of such settlement.
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 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 on the one hand and of the
International Managers on the other hand in connection with the statements or
omissions, or in connection with any violation of the nature referred to in
Section 6(a)(ii)(A) hereof, which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company 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 (before deducting expenses)
received by the Company 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 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 by the International Managers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission or any violation of the nature referred to in
Section 6(a)(ii)(A) hereof.
The Company 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, 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
20
<PAGE> 25
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 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 the Company.
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.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates signed by officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any U.S.
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the U.S. Underwriters.
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 NASD
or any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
21
<PAGE> 26
(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 International
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
U.S. 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 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. 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 Merrill Lynch &
Co., 1221 McKinney, Suite 2700, Houston, Texas 77010, attention of Sam Dodson
with a copy to Merrill Lynch, Pierce, Fenner & Smith Incorporated, 4 World
Financial Center, New York, New York 10080, attention of Head of CICG Legal
22
<PAGE> 27
Department; and notices to the Company shall be directed to it at 201 St.
Charles Avenue, Suite 3400, New Orleans, Louisiana 70170, attention of
President.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the International Managers and the Company and their respective
successors. 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 and the Company 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 and the
Company 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 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. CONSENT TO JURISDICTION. Each of the parties hereto
irrevocably agrees that any legal suit, action or proceeding arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York state or United States federal court sitting in the
State of New York, County of New York, and irrevocably waives, to the fullest
extent it may effectively do so, any objection which it may now or hereafter
have to the laying of venue of any such proceeding and irrevocably submits to
the exclusive jurisdiction of such courts in any such suit, action or
proceeding.
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.
23
<PAGE> 28
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,
ENERGY PARTNERS, LTD.
By:
-----------------------------
Richard Bachmann
Chairman, President and Chief
Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH INTERNATIONAL
UBS AG, acting through its business group UBS Warburg
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
HOWARD WEIL, a division of Legg Mason Wood Walker, Inc.
as Lead Managers of the several International Managers
By: MERRILL LYNCH INTERNATIONAL
By:
-----------------------------------------
Authorized Signatory
For themselves and as Lead Managers of the
other International Managers named in Schedule A hereto.
24
<PAGE> 29
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Initial
International
Name of International Manager Securities
----------------------------- -------------
<S> <C>
Merrill Lynch International.............................................................
UBS AG, acting through its business group UBS Warburg,..................................
Credit Suisse First Boston (Europe) Limited.............................................
Howard Weil, a division of Legg Mason Wood Walker, Inc. ................................
-------------
Total................................................................................... 1,150,000
-------------
</TABLE>
Sch A - 1
<PAGE> 30
SCHEDULE B
ENERGY PARTNERS, LTD.
1,150,000 Shares of 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.
Sch B - 1
<PAGE> 31
SCHEDULE C
[List of persons and entities
subject to lock-up]
Sch C - 1
<PAGE> 32
EXHIBIT A-1
FORM OF OPINION OF CAHILL GORDON & REINDEL
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 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 and
will be validly issued and fully paid and non-assessable.
(iii) The Company's Subsidiary has been duly organized and is
validly existing as a limited liability company in good standing under
the laws of the jurisdiction of its organization.
(iv) The U.S. Purchase Agreement and the International
Purchase Agreement have been duly authorized, executed and delivered by
the Company.
(v) Based on oral confirmation from the SEC, 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, to our knowledge, no proceedings for that
purpose have been instituted or are pending or threatened by the
Commission.
(vi) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434
Information, as applicable, the Prospectuses and each amendment or
supplement to the Registration Statement and the Prospectuses as of
their respective effective or issue dates (other than the financial
statements and supporting schedules 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.
(vii) [If Rule 434 has been relied upon, the Prospectuses were
not "materially different," as such term is used in Rule 434, from the
prospectuses included in the Registration Statement at the time it
became effective.]
A - 1
<PAGE> 33
(viii) 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.
(ix) The information in the Prospectuses under "Description of
Capital Stock--Common Stock," "Description of Capital Stock--Preferred
Stock," "Business and Properties--Environmental Regulations" and
"Material U.S. Federal Income Tax Considerations for Non-U.S. Holders
of Our Common Stock" and in the Registration Statement under Item 14,
to the extent that it constitutes matters of law, summaries of legal
matters, the Company's charter and bylaws or legal proceedings, or
legal conclusions, has been reviewed by us and is correct in all
material respects.
(x) The shares of Common Stock referred to in the Registration
Statement under Part II, Item 15, numbers (a)(7) and (a)(8) have been
duly and validly issued and are fully paid and non-assessable; and none
of such shares of capital stock was issued in violation of any
statutory preemptive rights, or, to our knowledge, contractual
preemptive rights or other similar rights of any securityholder of the
Company.
(xi) The issuance of the Securities is not subject to any
statutory or, to our knowledge, any contractual preemptive right of any
securityholder of the Company.
(xii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than under
the 1933 Act and the 1933 Act Regulations, which have been obtained, or
as may be required under the securities or blue sky laws of the various
states, as to which we express no opinion) is necessary or required in
connection with the due authorization, execution and delivery of the
U.S. Purchase Agreement and the International Purchase Agreement or for
the offering, issuance, sale or delivery of the Securities.
(xiii) The execution, delivery and performance of the U.S.
Purchase Agreement and the International Purchase Agreement and the
consummation of the transactions contemplated in the U.S. Purchase
Agreement, the International Purchase Agreement and in the Registration
Statement (including the issuance and sale of the Securities, and the
use of the proceeds from the sale of the Securities as described in the
Prospectuses under the caption "Use of Proceeds") and compliance by the
Company with its obligations under the U.S. Purchase Agreement and the
International Purchase Agreement do not and 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 or, except with respect to
indebtedness to be repaid with the proceeds of the offering as
described in the Prospectuses, Repayment Event (as defined in Section
1(a)(x) of the Purchase Agreements) 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 any agreement or
instrument identified in the Index to Exhibits to the Registration
Statement, to which the Company or any subsidiary 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 subsidiary is subject (except for such
conflicts, breaches or
A - 1
<PAGE> 34
defaults or liens, charges or encumbrances that would not have 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, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any subsidiary or any of their respective properties,
assets or operations
(xiv) To our knowledge, there are no agreements required to be
described in the Registration Statement that are not so described.
We have participated in conferences with representatives of the U.S.
Underwriters, officers and other representatives of the Company, counsel for the
Company and representatives of the independent public accountants of the Company
at which the contents of the Prospectuses and the Registration Statement and
related matters were discussed. Given the limitations inherent in the role of
outside counsel and the character of determinations involved in the preparation
of the Prospectuses and the Registration Statement, we are not passing upon and
do not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Prospectuses and the Registration Statement and
have made no independent check or verification thereof. On the basis of the
foregoing, no facts have come to our attention which lead us to believe that the
Prospectuses and the Registration Statement, as of their respective dates or as
of the date hereof, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that we express no comment with respect to the
financial statements, including the notes thereto, or any other financial or
statistical data found in or derived from the internal accounting or other
records of the Company and its subsidiaries set forth or referred to in the
Prospectuses and the Registration Statement).
In rendering such opinion, such counsel may rely, 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).
A - 1
<PAGE> 35
EXHIBIT A-2
[Jean Stallard Letterhead]
[Date]
[Addressee]
Gentlemen:
This opinion is being rendered in connection with the U.S.
Purchase Agreement and the International Purchase Agreement entered into between
Merrill Lynch & Co.; Merrill Lynch, Pierce, Fenner & Smith Incorporated; UBS
Warburg LLC; Credit Suisse First Boston Corporation; Howard Weil, a division of
Legg Mason Wood Walker, Inc.;_[fill in more underwriters for international
agreement]___ and Energy Partners, Ltd., a Delaware corporation (the "Company"),
dated ________________, 2000, in connection with the Registration Statement on
Form S-1 (Registration No. 333-42876) filed by the Company with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the "1933
Act"), relating to an offering of an aggregate of 5,750,000 shares of the
Company's Common Stock, par value $.01 per share. Capitalized terms not
otherwise defined herein shall have the meaning given them in the U.S. and
International Prospectuses (the "Prospectuses").
In my capacity as Assistant General Counsel of the Company, I
have examined original or photostatic or certified copies of such corporate
documents of the Company and the Company's only subsidiary, EPL Pipeline, L.L.C.
(the "Subsidiary"), as I have deemed relevant and necessary as a basis for this
opinion. In addition, in connection with this opinion, I have examined the
following documents: the U.S. Purchase Agreement, the International Purchase
Agreement, and such other documents as I have deemed necessary for purposes of
rendering the opinions herein set forth (collectively, the "Documents"). In
rendering the opinions expressed herein, I have also examined and relied upon
certain certificates of and representations of officers of the Company and the
Subsidiary as to certain matters of fact.
In connection with the opinions hereinafter set forth, I have
assumed without inquiry (i) the genuineness of all signatures, (ii) the legal
capacity of natural persons, (iii) the authenticity of all documents submitted
to me as originals, (iv) the conformity to authentic original documents of all
documents submitted to me as certified, conformed or photostatic copies and (v)
that each of the Documents constitutes a legal, valid and binding obligation of
each of the parties thereto other than the Company, and that such parties had
the power and authority and were otherwise competent to enter into and perform
all obligations.
Based upon and subject to the foregoing and the further
assumptions, qualifications, exceptions and limitations set forth herein, I am
of the opinion that, as of the date hereof:
A - 2
<PAGE> 36
(i) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as now being
conducted and to enter into and perform its obligations under the U.S. Purchase
Agreement and the International Purchase Agreement.
(ii) The Company is duly qualified and is in good standing in
Delaware, Massachusetts and Louisiana which, to my knowledge, are the only
jurisdictions 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.
(iii) The shares of issued and outstanding capital stock of
the Company other than those shares which are covered by opinions rendered by
Cahill Gordon & Reindel or Hickey & Reiss, LLC have been duly authorized and
validly issued, are as set forth in the Prospectuses in the column entitled
"Actual" under the caption "Capitalization" and are fully paid and
non-assessable. None of such shares were issued in violation of any statutory
preemptive rights or, to my knowledge, contractual preemptive rights or other
similar rights of any security holder of the Company.
(iv) The Subsidiary has the company power and authority to
own, lease and operate its properties and to conduct its business as now
conducted.
(v) The Subsidiary is duly qualified in Delaware and Louisiana
which, to my knowledge, are the only jurisdictions 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.
(vi) The issued and outstanding membership interests of the
Subsidiary have been duly authorized and validly issued, are fully paid and
non-assessable and, except as otherwise disclosed in the
Prospectuses/Registration Statement or exhibits thereto, are owned by the
Company, free and clear of any recorded security interest or, to my knowledge,
any other security interest, mortgage, pledge, lien, encumbrance or claim. None
of the outstanding membership interests of the Subsidiary were issued in
violation of any statutory preemptive right or, to my knowledge, contractual
preemptive rights of any security holder of the Subsidiary.
(vii) To my knowledge, except as disclosed in the
Prospectuses, there is not pending or overtly threatened in writing, any action,
suit, proceeding, inquiry or investigation, against the Company or the
Subsidiary, or against the property of the Company or the Subsidiary, before or
brought by any court or governmental agency or body, domestic or foreign, which
would reasonably be expected to result in a Material Adverse Effect, or which
would reasonably be expected to materially and adversely affect the consummation
of the transactions contemplated in the U.S. Purchase Agreement and
International Purchase Agreement or the performance by the Company of its
obligations thereunder.
(viii) To my knowledge, neither the Company nor any subsidiary
is in violation of its charter or by-laws and no default by the Company or any
subsidiary exists in the due performance or observance of any obligation,
agreement, covenant or condition contained in any
A - 2
<PAGE> 37
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is filed as an exhibit to the Registration Statement, except any
such violation or default which would not reasonably be expected to result in a
Material Adverse Effect.
(ix) The information in the Prospectuses under "Business and
Properties - Legal Proceedings," to the extent that it constitutes matters of
law, summaries of legal matters or legal proceedings, or legal conclusions, has
been reviewed by me and is, to my knowledge, correct in all material respects.
(x) To my knowledge, except as disclosed in the Prospectuses
under the caption "Certain Transactions," there are no persons with rights to
have any securities of the Company registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
I have participated in conferences with
representatives of the U.S. Underwriters, officers and other representatives of
the Company, counsel for the Company and representatives of the independent
public accountants of the Company at which the contents of the Prospectuses and
the Registration Statement and related matters were discussed. Given the
limitations inherent in the role of assistant general counsel and the character
of determinations involved in the preparation of the Prospectuses and the
Registration Statement, I am not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Prospectuses and the Registration Statement and have made no
independent check or verification thereof. On the basis of the foregoing, no
facts have come to my attention which lead me to believe that (i) the
Prospectuses and the Registration Statement, as of their respective dates or as
of the date hereof, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that I express no comment with respect to the
financial statements, including the notes thereto, or any other financial or
statistical data found in or derived from the internal accounting or other
records of the Company and its subsidiaries set forth or referred to in the
Prospectuses and the Registration Statement) or (ii) there are any material
contracts or agreements required to be filed as exhibits to the Registration
Statement that are not filed as required.
I am qualified to practice law in New York and Louisiana, and
I express no opinion as to the laws of any jurisdiction other than the State of
New York and the State of Louisiana.
My legal opinion as to the matters set forth herein is based
upon my professional knowledge and judgment. This opinion is not intended nor
shall it be construed as a guarantee or a warranty that a court considering such
matters would not rule in a manner contrary to the opinions set forth above. No
opinion is expressed with respect to future acts and events or changes in
existing law. I undertake no responsibility to advise you of any changes after
the date hereof in the law or the facts presently in effect that would alter the
scope or substance of the opinions herein expressed. This opinion is limited to
the matters stated herein, and no opinion is implied or may be inferred beyond
the matters expressly stated.
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<PAGE> 38
The opinions rendered in paragraphs (ii) and (v) above are
based solely upon certificates from the Secretary of State for the States of
Delaware, Massachusetts and Louisiana. The opinions rendered in paragraph (vi)
above regarding the duly authorized and valid issuance of the membership
interests of the Subsidiary assume that membership interests are duly and
validly issued upon the execution of a limited liability company agreement which
provides for the receipt by the signatory of a share of profits and losses of
the limited liability company and a right to receive distributions of the
limited liability company. Those opinions are based upon my review the
Subsidiary's Operating Agreement, which lists the Company as the sole member and
describes the member's share of profits and losses and rights to distributions
on liquidation. The opinions rendered in paragraph (vi) above regarding the
fully paid and non-assessable nature of the membership interests are based on
the assumption that a member of a limited liability company may receive a
limited liability company interest without making a contribution or being
obligated to make a contribution and are further based on the current provisions
of the Subsidiary's Operating Agreement which do not provide for assessments on
the membership interests (although I note that under the Operating Agreement,
until the member has a positive capital account, it would not be entitled to
distributions, and the members do have certain indemnification obligations under
the Operating Agreement).
The opinions expressed herein are rendered only with respect
to the constitutions, laws and regulations which are currently in effect and
applicable court rulings and orders which have been published and are generally
available.
The opinions expressed herein are rendered as of the date
hereof, are being furnished solely for your use in connection with this
transaction and, without my express prior written consent, shall not be
otherwise relied upon, circulated or quoted in whole or in part or otherwise
referred to in any report or document or furnished to any person or entity.
Very truly yours,
-----------------------------------------
Jean M. Stallard
Assistant General Counsel
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<PAGE> 39
EXHIBIT A-3
FORM OF OPINION OF HICKEY & RIESS, LLC
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 shares of Common Stock referred to in the Registration
Statement under Part II, Item 15 numbers (a)(1) through (a)(6) and (a)(9), have
been duly authorized and validly issued and are fully paid and non-assessable;
and none of such shares of capital stock was issued in violation of any
statutory preemptive rights or, to my knowledge, contractual preemptive or other
similar rights of any securityholder of the Company.
In rendering such opinion, such counsel may rely, to the extent he
deems 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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<PAGE> 40
EXHIBIT A-4
NIXON PEABODY LLP
Suite 900
401 9th Street, N.W.
Washington, D.C. 20004-2128
(202) 585-8000
Fax: (202) 585-8080
__________, 2000
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner and Smith Incorporated
Credit Suisse First Boston Corporation
UBS Warburg LLC
Howard Weil, a division of Legg Mason Wood Walker, Inc.
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner and Smith Incorporated
Dear Ladies and Gentlemen:
We have acted as special FERC counsel for Energy Partners, Ltd. (the
"Company"), in connection with its initial public offering of stock pursuant to
the Form S-1 Registration Statement (File No. 333-42876) under the Securities
Act of 1933 which was filed with the Securities Exchange Commission and, as
amended, became effective on __________, 2000 (such registration statement, at
the time it became effective, is herein called the "Registration Statement" and
the Prospectus dated October _____, 2000 is herein called the "Prospectus").
This opinion is being furnished to you pursuant to Section 5(b) of the
Underwriting Agreement dated __________, 2000 by and among you and the Company
relating to the sale by the Company of 5,750,000 shares of common stock, par
value $.01 per share, of the Company.
In rendering this opinion, we have examined the following document:
(i) Registration Statement;
In connection with the opinions expressed below, we have examined
originals, or copies, certified or otherwise identified to our satisfaction, of
such agreements or documents, certificates, and other statements of government
officials and corporate officers of the parties to the agreements and such other
papers as we have deemed relevant or necessary as a basis for the opinions set
forth herein. As to any facts material to our opinion, we have relied, to the
extent that we deem such reliance proper, upon certificates of public officials
and officers of the parties to the agreements and on the representations and
warranties set forth in the agreements.
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<PAGE> 41
In rendering the opinions expressed herein, we have assumed the
genuineness of all signatures (whether or original documents or copies thereof),
the authenticity of all documents submitted to us as originals and the
conformity to the originals of all copies submitted to us.
Based upon and subject to the foregoing, and subject to the
assumptions, exceptions and qualifications herein stated, we are of the opinion
that:
The information stated in the Registration Statement respecting the
Regulation of Transportation of Oil, Regulation of Transportation and Sale of
Natural Gas and Regulation of Production is true and accurate in all material
respects.
The foregoing opinion is limited to matters involving regulation by the
Federal Energy Regulatory Commission.
This opinion is given as of the date hereof and is based on the laws,
orders and rules as they exist and are construed as the date hereof. We assume
no obligation to update or supplement this opinion to reflect any facts or
circumstances which may come to our attention after the date hereof to reflect
any facts or circumstances which may come to our attention after the date
hereof, or any changes in laws which may have occurred thereafter. This opinion
is limited to the matters stated herein, and no opinion or belief is implied or
may be inferred beyond the matters expressly stated herein.
This opinion letter has been prepared solely for your use in connection
with the closing on the date hereof, and should not be quoted in whole or in
part or otherwise be referred to, nor be filed with or furnished to any
governmental agency or other person or entity, without our prior written
consent.
Very truly yours,
NIXON PEABODY LLP
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<PAGE> 42
[FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS PURSUANT TO
SECTION 5(i)]
EXHIBIT B
October ____, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
UBS WARBURG LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
HOWARD WEIL, a division of Legg Mason Wood Walker, Inc.
as U.S. Representatives of the several
U.S. Underwriters to be named in the
within-mentioned U.S. Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
and
MERRILL LYNCH INTERNATIONAL
UBS AG, acting through its business group UBS Warburg
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
HOWARD WEIL, a division of Legg Mason Wood Walker, Inc.
as Lead Managers of the several
International Managers to be named in the
within-mentioned International Purchase Agreement
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Re: Proposed Public Offering by Energy Partners, Ltd.
Dear Sirs:
The undersigned, a stockholder and an officer and/or director of Energy
Partners, Ltd., a Delaware corporation (the "Company"), understands that (i)
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), UBS Warburg LLC, Credit Suisse First Boston Corporation and
Howard Weil, a division of Legg Mason Wood Walker, Inc. propose to enter into a
U.S. Purchase Agreement (the "U.S. Purchase Agreement") and (ii) Merrill Lynch
International ("Merrill Lynch International"), UBS AG, acting through its
business group UBS Warburg, Credit Suisse First Boston (Europe) Limited and
Howard Weil, a division of Legg Mason Wood Walker, Inc., propose to enter into
an International Purchase
B - 1
<PAGE> 43
Agreement (the "International Purchase Agreement") with the Company providing
for the public offering of shares (the "Securities") of the Company's common
stock, par value $.01 per share (the "Common Stock"). The U.S. Purchase
Agreement and the International Purchase Agreement are collectively referred to
herein as the "Purchase Agreements." In recognition of the benefit that such an
offering will confer upon the undersigned as a stockholder and 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 Purchase Agreements that, during a
period of 180 days from the date of the Purchase Agreements, the undersigned
will not, without the prior written consent of Merrill Lynch and Merrill Lynch
International, directly or indirectly, (i) 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 for the sale of, or otherwise
dispose of or transfer any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or acquired in the Company's initial public offering by the
undersigned or with respect to which the undersigned has or acquires in the
Company's initial public offering 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 provided, however, that clauses (i) and
(ii) above shall not apply to (a) transactions relating to shares of Common
Stock or other securities acquired in open market transactions after closing of
the public offering, (b) options or stock awards issued pursuant to the
Company's employee stock option or stock award plans existing on the effective
date of the registration statement or the exercise of such options, (c)
transfers by the undersigned to the Company, (d) transfers by the undersigned to
any other entity which is a shareholder of the Company on the date hereof and
which has signed a letter substantially similar to this Lock-Up Agreement and in
form and substance satisfactory to you and (e) transfers by gift, will or
intestacy of the undersigned's Common Stock or any securities of the Company
which are substantially similar to the Common Stock, including, but not limited
to, any security convertible into or exercisable or exchangeable for Common
Stock, provided that in the case of this clause (e) the transferee delivers to
the U.S. Underwriters and the International Managers a signed letter
substantially similar to this Lock-Up Agreement and in form and substance
satisfactory to you.
If the Purchase Agreements do not become effective or are terminated
prior to delivery and payment for the Initial U.S. Securities and the Initial
International Securities thereunder, the undersigned shall be released from all
obligations under this agreement.
Very truly yours,
Signature:
-------------------------------
Print Name:
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