UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 23, 2000
TRICO MARINE SERVICES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 0-28316 72- 1252405
(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
250 North American Court, Houma, Louisiana 70363
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(504) 851-3833
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
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ITEM 5. OTHER EVENTS.
On May 23, 2000, Trico Marine Services, Inc. (the "Company"), entered
into an Underwriting Agreement (the "Underwriting Agreement") with Johnson
Rice & Company L.L.C. ("Johnson Rice") for the sale of 4,500,000 shares of
its common stock, $0.01 par value per share. The Underwriting Agreement is
included as Exhibit 1.1 to this Form 8-K and is incorporated herein by
reference. The offering will be made on a firm commitment basis.
The offering will generate approximately $39 million in net proceeds
to the Company, which will be used to repay amounts owed under its
revolving credit facility and provide additional working capital. The
closing date for the offering is scheduled for May 26, 2000.
On May 23, 2000, the Company issued a press release announcing the
offering, which is included as Exhibit 99 to this Form 8-K and incorporated
herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Exhibits.
1.1 Underwriting Agreement dated May 23, 2000 between Trico
Marine Services, Inc. and Johnson Rice & Company L.L.C.
99 Press release issued by Trico Marine Services, Inc. on May 23,
2000.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
TRICO MARINE SERVICES, INC.
By: /S/ Victor M. Perez
-----------------------------------------
Victor M. Perez
Vice President, Chief Financial Officer,
and Treasurer
Dated: May 23, 2000
TRICO MARINE SERVICES, INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT
May 23, 2000
4,500,000 Shares of Common Stock
(par value $0.01 per share)
Johnson Rice & Company L.L.C.
639 Poydras Street, Suite 2775
New Orleans, Louisiana 70113
Ladies and Gentlemen:
Trico Marine Services, Inc., a Delaware corporation (the "Company"),
confirms its agreement with Johnson Rice & Company L.L.C. (the
"Underwriter"), with respect to the issue and sale by the Company and the
purchase by the Underwriter of 4,500,000 shares of common stock, par value
$0.01 per share (the "Common Stock"), of the Company (the "Securities").
The Company understands that the Underwriter proposes to make a public
offering of the Securities as soon as the Underwriter deems advisable after
this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-34466) covering
the registration of the Securities under the Securities Act of 1933, as
amended ("1933 Act"), including a related prospectus, and the registration
statement has been declared effective by the Commission. The registration
statement as amended at the time it became effective, or if a post-
effective amendment has been filed with respect thereto as amended by such
post-effective amendment at the time of its effectiveness (including in
each case the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the 1933
Act), is hereinafter referred to as the "Registration Statement;" the
prospectus as supplemented by the prospectus supplement relating to the
sale of the Securities by the Underwriter in the form first used to confirm
sales of Securities is hereinafter referred to as the "Prospectus." Any
reference in this Agreement to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, as of the effective date of the Registration Statement or
the date of such preliminary prospectus or the Prospectus, as the case may be
(it being understood that the specific references in this Agreement to documents
incorporated by reference in the Registration Statement or the Prospectus
are for clarifying purposes only and are not meant to limit the inclusiveness
of any definition herein), and any reference to "amend," "amendment"
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or "supplement" with respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and the rules and regulations of the Commission
thereunder that are deemed to be incorporated by reference therein. For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, or the Prospectus 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 the Underwriter as of the date hereof, and as of
the Delivery Date referred to in Section 2 hereof, and agrees with the
Underwriter, as follows:
(1) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Registration
Statement has become effective under the 1933 Act, no stop order suspending
the effectiveness of the Registration Statement has been issued under the
1933 Act, no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with. At the respective times that the
Registration Statement and any post-effective amendments thereto became
effective and at the Delivery Date the 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 rules and
regulations promulgated thereunder (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 the Prospectus nor any
amendment or supplement thereto, at the time the Prospectus or any
amendment or supplement thereto was issued and at the Delivery Date,
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 light of the circumstances under which they were
made, not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the Underwriter
expressly for use in the Registration Statement or the Prospectus. Each
preliminary prospectus and the Prospectus 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 the Prospectus
delivered to the Underwriter 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.
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(2) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement are independent public accountants
as required by the 1933 Act and the 1933 Act Regulations.
(3) FINANCIAL STATEMENTS. The consolidated financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus, together with the related schedules and notes, present fairly
the financial position of the Company at the dates indicated, and the
consolidated statements of operations, stockholders' equity and cash flows
of the Company for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods. The
supporting schedules included in the Registration Statement present fairly
in accordance with GAAP the information required to be stated therein.
Other than the historical financial statements (and schedules) included or
incorporated by reference in the Registration Statement and Prospectus, no
other historical financial statements (or schedules) are required by the
1933 Act or the 1933 Act Regulations to be included therein.
(4) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein or in
documents incorporated therein by reference, there has been no material
adverse change in the condition, financial or otherwise, results of
operations or prospects of the Company and the Subsidiaries (as hereinafter
defined) taken as a whole (a "Material Adverse Effect").
(5) 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 the requisite corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and Prospectus and to
enter into and perform its obligations under this Agreement. 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.
(6) GOOD STANDING OF SUBSIDIARIES. Each subsidiary of
the Company (each a "Subsidiary" and collectively the "Subsidiaries") has
been duly organized and is validly existing in good standing under the laws
of the jurisdiction of its organization, has all requisite power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and Prospectus, and is
duly qualified 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. All of the issued and outstanding capital
stock of each of the Subsidiaries that is a corporation has been duly
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authorized and validly issued, is fully paid and non-assessable, and all of
the other equity interests in each other Subsidiary are validly issued and
fully paid; except as otherwise disclosed in the Registration Statement,
all such shares and interests, as the case may be, are wholly owned by the
Company, directly or through Subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity, and none of
the outstanding shares of capital stock or other equity interests of any
Subsidiary was issued in violation of the preemptive or similar rights of
any security holder of such Subsidiary.
(7) CAPITALIZATION. The authorized capital stock of the Company
is, and the issued and outstanding capital stock of the Company as of the
Delivery Date, but before giving effect to the sale of the Securities
contemplated hereby, will be, as set forth in Schedule A annexed hereto,
which has been prepared from the books and records of the Company. The
shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable
and, none of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive or similar rights of any security
holder of the Company.
(8) OTHER SECURITIES. Except as disclosed in the Registration
Statement or the Prospectus, there are no outstanding (i) securities or
obligations of the Company or any of its Subsidiaries convertible into or
exchangeable for any capital stock of the Company or any Subsidiary, (ii)
warrants, rights or options to subscribe for or purchase from the Company
or any Subsidiary any capital stock or any such convertible or exchangeable
securities or obligations, or (iii) obligations of the Company or any
Subsidiary to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or
option.
(9) AUTHORIZATION OF AGREEMENT AND BINDING EFFECT. This
Agreement has been duly authorized, executed and delivered by the Company
and constitutes a valid and binding obligation of the Company enforceable
in accordance with its terms except as enforcement may be limited by
bankruptcy, insolvency or other laws or court decisions relating to or
affecting creditor's rights generally, and except to the extent that
enforcement of the indemnification and contribution obligations provided
for herein may be limited by federal or state securities laws or the public
policies underlying such laws.
(10) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The Securities have
been duly authorized for issuance and sale to the Underwriter pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be as of
the Delivery Date, validly issued, fully paid and non-assessable; the Common
Stock conforms in all material respects to the description thereof contained
in the Registration Statement and Prospectus or in documents incorporated
therein by reference, and such descriptions conform 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 solely as a result of being
such a holder; the issuance of the Securities is not subject to preemptive or
other similar rights of any security holder of the Company; and the Company has
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duly reserved a sufficient number of shares of Common Stock for issuance of
the Securities pursuant to this Agreement and for issuance upon the exercise,
conversion or exchange of all outstanding options and other securities of the
Company that are convertible into or exchangeable for Common Stock.
(11) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor
any of its Subsidiaries is in violation of its charter, by-laws or other
organizational documents 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 defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly authorized by
all necessary corporate action and (except as contemplated by the
Registration Statement or Prospectus) do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the properties or
assets of the Company or any Subsidiary pursuant to, the Agreements and
Instruments or violations of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, having jurisdiction over the Company or any
Subsidiary (except for such conflicts, breaches or defaults or liens,
charges, encumbrances or violations that would not result in a Material
Adverse Effect).
(12) 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 that could reasonably be expected to have a
Material Adverse Effect.
(13) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, now pending, or to the knowledge of the
Company threatened, against or affecting the Company or any Subsidiary that
(a) is required to be disclosed in the Registration Statement, (b)
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect, (c) could reasonably be expected to materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement, or (d) are otherwise material in the context of the
sale of the Stock; and no such actions, suits or proceedings are to the
Company's knowledge threatened or contemplated.
(14) EXHIBITS. There are no contracts or documents that are
required to be described in the Registration Statement or the Prospectus or
to be filed as exhibits thereto or to documents incorporated by reference
therein that have not been so described and filed as required.
(15) NASDAQ LISTING. The Company's Common Stock is authorized
for quotation on the Nasdaq National Market System ("Nasdaq NMS"). The
Company has filed an application to have the Securities traded on the
Nasdaq NMS.
(16) 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
is necessary for the performance by the Company of its obligations
hereunder or in connection with the offering, issuance or sale of the
Securities under this Agreement or the consummation of the transactions
contemplated by this Agreement, except such as have been obtained or as may
be required under the 1933 Act or the 1933 Act Regulations and foreign or
state securities or blue sky laws.
(17) POSSESSION OF LICENSES AND PERMITS. The Company and its
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by
appropriate federal, state, local or foreign regulatory bodies necessary to
conduct the business now operated by them, except where the failure to have
obtained the same would not 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 where
the invalidity or the failure 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.
(18) PROPERTIES. The Company and the Subsidiaries have good and
marketable title in fee simple to, or valid and enforceable leasehold
interests in, all of their owned and leased real properties and good and
marketable title to, or valid and enforceable leasehold interests in, all
other material properties owned or leased 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 Registration Statement or Prospectus or in documents incorporated by
reference therein or (b) do not, singly or in the aggregate, have a
Material Adverse Effect.
(19) INSURANCE. The Company and each of the Subsidiaries is
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are customary in the businesses in
which they are engaged; and neither the Company nor any of the Subsidiaries
has any reason to believe that any of them will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business.
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(20) TAXES. The Company and each of the Subsidiaries has filed
all material foreign, federal, state and local tax returns that are
required to be filed or have requested extensions thereof (except in any
case in which the failure so to file would not have a Material Adverse
Effect) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it to the extent due and
payable, except for any such assessment, fine or penalty that is currently
being contested in good faith or as described in or would not have a
Material Adverse Effect.
(21) INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(22) ENVIRONMENTAL LAWS. There has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or treatment
of hazardous substances or hazardous wastes by the Company or any of its
Subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest), at, upon or from any of the property now or
previously owned, leased or operated by the Company or its Subsidiaries in
violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit that would require the Company or any Subsidiary
to undertake any remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation or
remedial action that would not, individually or in the aggregate with all
such violations and remedial actions, have a Material Adverse Effect.
Except for abandonment and similar costs incurred or to be incurred in the
ordinary course of business of the Company and any of its Subsidiaries,
there has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto any property now or previously
owned, leased or operated by the Company or any of its Subsidiaries or into
the environmental surrounding such property of any hazardous substances or
hazardous wastes due to or caused by the Company or any of its Subsidiaries
(or, to the knowledge of the Company, any of their predecessors in
interest), except for any such spill, discharge, leak, emission, injection,
escape, dumping or release that would not, singularly or in the aggregate
with all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, result in a Material Adverse Effect; and the terms
"hazardous substances," and "hazardous wastes" shall be construed broadly
to include such terms and similar terms, all of which shall have the
meanings specified in any applicable local, state and federal laws or
regulations with respect to environmental protection.
(23) REGISTRATION RIGHTS. Except as described in the
Registration Statement, there are no registration rights or other similar
rights to have any securities registered pursuant to the Registration
Statement. Except as described in the Registration Statement or as
otherwise disclosed to the Underwriter by the Company in a writing
specifically referencing this Agreement, there are no registration rights
or other similar rights to have any securities otherwise registered by the
Company under the 1933 Act.
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(24) PATENTS, TRADEMARKS, ETC. The Company owns or possesses
adequate licenses or other rights to use all patents, trademarks, service
marks, trade names, copyrights, software and design licenses, trade
secrets, manufacturing processes, other intangible property rights and
know-how (collectively "Intangibles") necessary to entitle the Company to
conduct its business as described in the Registration Statement and
Prospectus, and the Company has not received notice of infringement of or
conflict with, and knows of no such infringement of or conflict with,
asserted rights of others with respect to any Intangibles that could
reasonably be expected to have a Material Adverse Effect.
(25) INTERNAL ACCOUNTING. Subject to such exceptions, if any, as
could not reasonably be expected to have a Material Adverse Effect, the
Company maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain accountability for assets, (iii) access to assets is permitted
only in accordance with management's general or specific authorization and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect
to any differences; and, none of the Company, the Subsidiaries, or any
employee or agent thereof, has made any payment of funds of the Company or
the Subsidiaries, or received or retained any funds, and no funds of the
Company or the Subsidiaries have been set aside to be used for any payment,
in each case in violation of any law, rule or regulation.
(b) OFFICERS' CERTIFICATES. Any certificate signed by any officer of
the Company or any Subsidiaries that is delivered to the Underwriter or to
counsel for the Underwriter pursuant to this Agreement shall be deemed a
representation and warranty solely by the Company to the Underwriter as to
the matters covered thereby.
SECTION 2
SALE AND DELIVERY TO UNDERWRITER; CLOSING
(a) SALE OF 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 the Underwriter, and the
Underwriter agrees to purchase from the Company, at a price of $8.685 per
share, the Securities for an aggregate purchase price of $39,082,500, which
represents a discount of 3.5% from the anticipated initial offering price
to the public.
(b) PAYMENT. Payment of the purchase price for, and the delivery
of, the Securities shall be made at the offices of Johnson Rice &
Company L.L.C., 639 Loyola Avenue, Suite 2775, New Orleans, Louisiana,
or at such other place as shall be agreed upon by the Underwriter
and the Company, at 9:00 a.m. (Central time) on May 26, 2000, or such
other time not later than ten business days after such date as shall be
agreed upon by the Underwriter and the Company (such time and date of
payment and delivery being herein called the "Delivery Date"). On the
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Delivery Date, the Company shall deliver or cause to be delivered the Securities
through the facilities of the Depository Trust Company ("DTC") for the account
of the Underwriter, against payment of the purchase price therefor by wire
transfer of immediately available funds to Wells Fargo Bank, ABA No.121000248,
Operating Account number of Trico Marine Operators, Inc. 4911430635.
SECTION 3
COVENANTS OF THE COMPANY
The Company covenants with the Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company, subject to Section 3(b) hereof, will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the
Underwriter promptly, and confirm the notice in writing (i) when any post-
effective amendment to the Registration Statement shall become effective or
any supplement to the Prospectus or any amended prospectus 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 Prospectus or for
additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus,
or of the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Underwriter
notice of its intention to file or prepare any amendment to the
Registration Statement, any or any amendment, supplement or revision to
either the prospectus included in the Registration Statement at the time it
became effective or to the Prospectus, will furnish the Underwriter 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 Underwriter or counsel for the Underwriter shall
reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished
or, upon request and to the extent reasonably available, will deliver to
the Underwriter and counsel for the Underwriter, 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 Underwriter, without
charge, a conformed copy of the Registration Statement as originally filed
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and of each amendment thereto (without exhibits). The copies of the
Registration Statement and each amendment thereto furnished to the Underwriter
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted or required by
Regulation S-T.
(d) DELIVERY OF PROSPECTUS. The Company will furnish to the
Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as the Underwriter
may reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted or required by Regulation
S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will
comply with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. I f at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the reasonable opinion of counsel for the
Underwriter or for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus 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 the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b)
hereof, such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to
the Underwriter such number of copies of such amendment or supplement as
the Underwriter may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts,
in cooperation with the Underwriter, to qualify, if necessary, the
Securities for offering and sale under the applicable securities laws of
such states and other jurisdictions (domestic or foreign) as the
Underwriter may designate and to maintain such qualifications in effect for
a period of not more than one year from the effective date of the
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 more than one year from the effective date of
the Registration Statement.
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<PAGE>
(g) RULE 158. The Company will, as soon as practicable after the
effective date of the Registration Statement (it being understood that the
Company shall have until at least 410 days after the end of the Company's
current fiscal quarter), make generally available to the Company's security
holders and deliver to the Underwriter an earnings statement of the Company
and its Subsidiaries (which need not be audited) complying with Section
11(a) of the 1933 Act and the 1933 Act Regulations (including, at the
option of the Company, Rule 158).
(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
Prospectus under "Use of Proceeds."
(i) RESTRICTION ON SALE OF SECURITIES. During a period of 30 days
from the date hereof, the Company will not, and will cause its and its
directors, executive officers, and beneficial owners of more than ten
percent (10%) of the outstanding Common Stock to enter into letter
agreements in form and substance satisfactory to the Underwriter and its
counsel committing that they will not, without the prior written consent of
the Underwriter, (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 transaction that transfers, in whole or in part, directly or indirectly,
the economic consequence of ownership of the Common Stock, whether any such
swap or transaction described in clause (i) or (ii) above is to be settled
by delivery of Common Stock or such other securities, in cash or otherwise.
The foregoing sentence shall not apply to (A) the Securities to be sold
hereunder, (B) any shares of Common Stock issued or options to purchase
Common Stock granted under the current employee benefit plans of the
Company, (C) the issuance by the Company of shares of Common Stock in
exchange for or upon conversion of outstanding securities of the Company
that are described in the Registration Statement or the Prospectus in
accordance with their terms or (D) the issuance of shares of capital stock
of the Company in connection with acquisitions made in the ordinary course
of business.
(j) COMPLIANCE WITH REGULATION M. The Company will not, and will use
its best efforts to cause its officers, directors and affiliates not to, in
violation of Regulation M under the 1934 Act (i) take, directly or
indirectly prior to completion of the distribution contemplated by this
Agreement, any action designed to stabilize or manipulate the price of any
security of the Company, or that may cause or result in, or that might in
the future reasonably be expected to cause or result in, the stabilization
or manipulation of the price of any security of the Company, to facilitate
the sale or resale of any of the Common Stock, (ii) sell, bid for, purchase
or pay anyone any compensation for soliciting purchases of the Common
Stock, or (iii) pay or agree to pay to any person any compensation for
soliciting any order to purchase any other securities of the Company.
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<PAGE>
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 and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto,
(ii) the issuance and delivery of the Securities to the Underwriter,
including any stock or other transfer taxes payable upon the sale, issuance
or delivery of the Securities to the Underwriter, (iii) the preparation and
delivery to the Underwriter of copies of any preliminary prospectus, the
Prospectus and any amendments or supplements thereto, (iv) the preparation
and delivery to the Underwriter of copies of any Blue Sky Survey and any
supplement thereto, including fees and disbursements of counsel for the
Underwriter in connection therewith, (v) the fees and expenses of any
transfer agent or registrar for the Securities, and (vi) the fees and
expenses incurred in connection with the listing of the Securities on the
Nasdaq NMS. Except as provided herein, the Underwriter shall pay its own
costs and expenses, including the costs and expenses of its counsel, any
transfer taxes on the sale of Securities by it, and any expenses of
advertising the offering of the Securities incurred by the Underwriter.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriter for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriter, unless such termination was pursuant to the
condition set forth in Section 5(i) and the failure to satisfy such
condition was solely attributable to the Underwriter.
SECTION 5
CONDITIONS OF UNDERWRITER'S OBLIGATIONS
The obligations of the Underwriter hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof and in certificates of any officer of the Company or any
Subsidiary 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; FILING OF PROSPECTUS
SUPPLEMENT. The Registration Statement has become effective and at the
Delivery Date 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
Underwriter. The Prospectus, as supplemented by the prospectus supplement
relating to the offering of the Securities, shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the 1933 Act Regulations and in accordance
with Section 3(a) hereof.
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<PAGE>
(b) OPINION OF COUNSEL FOR COMPANY. At the Delivery Date, the
Underwriter shall have received the favorable opinion, dated as of such
delivery date, of Jones, Walker, Waechter, Poitevent, Carr<e`>re &
Den<e`>gre, L.L.P., counsel for the Company, in form and substance
satisfactory to counsel for the Underwriter, to the effect set forth in
Exhibit A hereto with such qualifications and explanatory notes thereto as
counsel to the Underwriter may reasonably accept. In giving the opinions
described in Exhibit A, such counsel may rely, as to all matters governed
by the laws of jurisdictions other than the law of the State of Louisiana,
the federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to the
Underwriter. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its Subsidiaries and
certificates of public officials.
(c) OFFICERS' CERTIFICATE. At the Delivery Date, there shall not
have been, since the date hereof or since the respective dates as of which
information is given in the Registration Statement or Prospectus, except as
contemplated by the Prospectus, any material adverse change in the
condition, financial or otherwise, results of operations or prospects of
the Company and the Subsidiaries taken as a whole, and the Underwriter
shall have received a certificate of the President or a Vice President of
the Company and of the chief financial or chief accounting officer of the
Company, dated as of such delivery date, 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 such delivery date, (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 such delivery date, and (iv) no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or to such officer's knowledge are contemplated by the Commission.
(d) ACCOUNTANT'S COMFORT LETTER. At the Delivery Date, the
Underwriter shall have received from PricewaterhouseCoopers LLP a letter
dated such date, in form and substance satisfactory to the Underwriter,
stating the conclusions and findings of such firm with respect to the
audited financial statements of the Company for the year ended December 31,
1999 included in the Registration Statement or Prospectus, or incorporated
therein by reference, and other matters agreed to between
PricewaterhouseCoopers LLP and the Underwriter.
(e) APPROVAL OF LISTING. At the Delivery Date, the Securities shall
have been authorized for quotation on, and is listed on, the Nasdaq NMS.
(f) LOCK-UP AGREEMENTS. Each director and executive officer of the
Company shall have executed and delivered to the Underwriter lock-up
agreements containing substantially the same terms and conditions as are
set forth in the first sentence of Section 3(j) hereof; such agreements
shall not have been amended or revoked; and such agreements shall be in
full force and effect.
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<PAGE>
(g) ADDITIONAL DOCUMENTS. At the Delivery Date, counsel for the
Underwriter shall have been furnished with such documents and opinions 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 Underwriter and counsel for the Underwriter.
(h) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Underwriter by notice to the
Company at any time at or prior to the Delivery Date, 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 UNDERWRITER. The Company agrees to indemnify
and hold harmless the Underwriter and each person, if any, who controls the
Underwriter 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 arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (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 to the extent
of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission;
PROVIDED that any such settlement is effected with the written consent of
the Company; and (iii) against any and all expense whatsoever (including
the fees and disbursements of counsel chosen by the Underwriter),
reasonably incurred in investigating, preparing for 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; and the Company shall reimburse the
Underwriter and each controlling person promptly upon demand for any legal
or other expenses reasonably incurred by the Underwriter and each
controlling person in connection with investigating or defending or preparing
to defend against any such loss, liability, claim, damage, or action under
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<PAGE>
(i), (ii) or (iii) above as such expenses are incurred; 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 by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto); and PROVIDED FURTHER that this indemnity agreement
shall not apply to any loss, liability, claim, damage, or expense that
results from the failure or alleged failure by the Underwriter to deliver
a prospectus as required by the 1933 Act, or to the extent that it is
determined in a final judgment by a court of competent jurisdiction that
such loss, liability, claim, damage, or action resulted directly from the
gross negligence or willful misconduct of the Underwriter.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. The
Underwriter 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), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information
furnished to the Company by the Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto). The
Company acknowledges that the statements set forth in the third paragraph
of the cover page and in the second paragraph under the caption
"Underwriting" in the Prospectus constitute the only information furnished
in writing by or on behalf of the Underwriter expressly for use in the
Registration Statement relating to the Securities as originally filed or in
any amendment thereof, related preliminary prospectus or the Prospectus or
in any amendment thereof or supplement thereto, as the case may be.
(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 sough thereunder, 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 the Underwriter, and, in the case
of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
PROVIDED, HOWEVER, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. Notwithstanding the foregoing, if it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
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<PAGE>
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and approved by the
indemnified parties defendant in such action (which approval shall not be
unreasonably withheld), unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to
them which are different from or in addition to those available to such
indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying party shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action, except that the indemnifying party shall be liable for the
reasonable costs of investigation subsequently incurred by the indemnified
party in connection with the defense. 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, which consent shall not be unreasonably
withheld, 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.
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 tothe 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 the
one hand and the Underwriter 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 Underwriter on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company the one hand
and the Underwriter on the other hand in connection with the offering of
the 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 Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
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<PAGE>
Underwriter, in each case as set forth on the cover of the Prospectus, bear
to the aggregate initial public offering price of the Securities as set
forth on such cover. The relative fault of the Company on the one hand and
the Underwriter 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 Underwriter and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Underwriter agree that it would not be just and equitable if
contribution pursuant to this Section were determined by pro rata allocation
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, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which the Underwriter
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 the Underwriter 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 Underwriter, 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.
SECTION 8
REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE DELIVERY
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of the
Subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of
the Underwriter or controlling person, or by or on behalf of the Company,
and shall survive delivery of the Securities to the Underwriter.
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<PAGE>
SECTION 9
TERMINATION OF AGREEMENT
(a) TERMINATION; GENERAL. In addition to its rights to terminate
this Agreement under Section 5(e) hereof, the Underwriter may terminate
this Agreement, by notice to the Company, at any time at or prior to the
Delivery Date (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 Prospectus, any material adverse change in the condition, financial or
otherwise, results of operations or prospects of the Company and the
Subsidiaries taken as a whole, 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 Underwriter, 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 Nasdaq NMS, or if trading
generally on the New York Stock Exchange, the American Stock Exchange or in
the Nasdaq NMS 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.
(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
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 Underwriter shall be
directed to Johnson Rice & Company L.L.C., 639 Loyola Avenue, Suite 2775,
New Orleans, Louisiana 70113, attention of Corporate Finance Department,
and notices to the Company shall be directed to it at 250 North American
Court, Houma, Louisiana, 70363, attention of Chief Financial Officer.
Notices given by telex or telephone shall be confirmed in writing.
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<PAGE>
SECTION 11
PARTIES
This Agreement shall each inure to the benefit of and be binding upon
the Underwriter 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 Underwriter 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 Underwriter 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 the
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 12
GOVERNING LAW AND TIME
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO CENTRAL
STANDARD OR DAYLIGHT TIME, AS APPROPRIATE.
SECTION 13
EFFECT OF HEADINGS
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
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<PAGE>
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 Underwriter and the Company in accordance
with its terms.
Very truly yours,
TRICO MARINE SERVICES, INC.
By: /s/ VICTOR M. PEREZ
------------------------------
Name: Victor M. Perez
Title: Vice President, Chief
Executive Officer, and Treasurer
CONFIRMED AND ACCEPTED, as of
the date first above written:
JOHNSON RICE & COMPANY L.L.C.
By: /s/ GREGORY L. MINER
------------------------------
Name: Gregory L. Miner
Title: Partner
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Contact: Victor M. Perez
Tom Green
(713) 780-9926
[email protected]
FOR IMMEDIATE RELEASE
TRICO MARINE SERVICES, INC. ANNOUNCES OFFERING
OF COMMON STOCK
(Houston, TX, May 23, 2000) Trico Marine Services, Inc. (NASDAQ: TMAR)
announced today that it has priced an offering, on a firm commitment,
underwritten basis, of 4,500,000 shares of its common stock at a price of
$9.00 per share. The offering will generate approximately $39 million in
net proceeds to the Company, which will be used to repay amounts owed
under its revolving credit facility and for general corporate purposes.
The closing date for the offering is scheduled for May 26, 2000. The
offering will be underwritten by Johnson Rice & Company L.L.C.
"This transaction will enhance our financial flexibility, as well as
enhance the operating leverage Trico has to any improvement in vessel day
rates and utilization," said Thomas E. Fairley, President and Chief
Executive Officer.
A registration statement relating to these securities has been filed with
the U.S. Securities and Exchange Commission and has been declared
effective. This press release shall not constitute an offer to sell or
the solicitation of the offer to buy the securities, nor shall there be
any sale of the securities in any state in which such offer, solicitation
or sale would be unlawful prior to registration or qualification under
the securities laws of any such state.
TRICO MARINE PROVIDES MARINE SUPPORT SERVICES TO THE OIL AND GAS
INDUSTRY, PRIMARILY IN THE GULF OF MEXICO, THE NORTH SEA, AND LATIN
AMERICA. THE SERVICES PROVIDED BY THE COMPANY'S DIVERSIFIED FLEET OF
VESSELS INCLUDE THE MARINE TRANSPORTATION OF DRILLING MATERIALS, SUPPLIES
AND CREWS AND SUPPORT FOR OFFSHORE WELL SERVICING, CONSTRUCTION,
INSTALLATION AND MAINTENANCE OF OFFSHORE FACILITIES.
CERTAIN STATEMENTS IN THIS PRESS RELEASE THAT ARE NOT HISTORICAL
FACT MAY BE "FORWARD-LOOKING STATEMENTS." ACTUAL EVENTS MAY DIFFER
MATERIALLY FROM THOSE PROJECTED IN ANY FORWARD-LOOKING STATEMENT.
THERE ARE A NUMBER OF IMPORTANT FACTORS INVOLVING RISKS AND
UNCERTAINTIES BEYOND THE CONTROL OF THE COMPANY THAT COULD CAUSE
ACTUAL EVENTS TO DIFFER MATERIALLY FROM THOSE EXPRESSED OR IMPLIED
BY SUCH STATEMENTS. A DESCRIPTION OF RISKS AND UNCERTAINTIES ATTENDANT
TO TRICO MARINE SERVICES, INC. AND ITS INDUSTRY AND OTHER FACTORS
<PAGE>
THAT COULD AFFECT THE COMPANY'S FINANCIAL RESULTS ARE INCLUDED IN THE
COMPANY'S SECURITIES AND EXCHANGE COMMISSION FILINGS.
