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Title: |
Underwriting Agreement |
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Entities: |
Newpark Resources, Inc.; Raymond James & Associates, Inc.; Vinson & Elkins |
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Date: |
2002 |
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Size: |
Preview shows 17KB of 84KB total |
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Price: |
$53 |
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ID: |
#1093814 |
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2,000,000 Shares
Common Stock
($0.01 par value)
Underwriting Agreement
May 15, 2002
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Ladies and Gentlemen:
Newpark Resources, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to Raymond James & Associates, Inc.
(the "Underwriter") 2,000,000 shares of Common Stock, $0.01 par value ("Common
Stock"), of the Company (said shares being hereinafter called the "Securities").
Any reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 16 hereof.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with,
the Underwriter as set forth below in this Section 1(a).
(i) The Company meets the requirements for use of
Form S-3 under the Act and has prepared and filed with the Commission a
registration statement (File Number 333-87840) on Form S-3, including a
related basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including a Preliminary Final Prospectus, each
of which has previously been furnished to you. The Company will next
file with the Commission one of the following: (1) after the Effective
Date of such registration
statement, a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b), (2) prior to the Effective Date
of such registration statement, an amendment to such registration
statement (including the form of final prospectus supplement) or (3) a
final prospectus in accordance with Rules 415 and 424 (b). In the case
of clause (1) the Company has included in such registration statement,
as amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As
filed, such final prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Underwriter shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x).
(ii) On the Effective Date, the Registration
Statement did or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as
defined herein), the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable requirements
of the Act and the Exchange Act and the respective rules thereunder; on
the Effective Date and at the Execution Time, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date and any settlement
date, the Final Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of the Underwriter
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(iii) Each of the Company and its domestic
subsidiaries and subsidiaries which are significant subsidiaries (as
such term is defined in Rule 1-02 of Regulation S-X), all of which are
listed on Schedule II (each such subsidiary, a "Subsidiary," and
collectively, the "Subsidiaries"), has been duly organized and is
validly existing as an entity in good standing under the laws of the
jurisdiction in which it is chartered or organized with full power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus, and
is duly qualified to do business as a foreign entity and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to qualify
2
could not reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business (a "Material Adverse Effect").
(iv) All the outstanding shares of capital stock or
other equity interests of each Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable, and, except
as otherwise set forth in the Prospectus, all outstanding shares of
capital stock or other equity interests of the Subsidiaries are owned
by the Company either directly or through wholly owned Subsidiaries
free and clear of any perfected security interest or any other security
interests, claims, liens or encumbrances, except for the liens and
security interests of the lenders under the Company's existing credit
facility.
(v) The Company's authorized equity capitalization is
as set forth in the Prospectus; the capital stock of the Company
conforms in all respects to the description thereof contained in the
Prospectus; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Securities being sold hereunder by the Company have been duly and
validly authorized, and, when issued and delivered to and paid for by
the Underwriter pursuant to this Agreement, will be fully paid and
nonassessable; the Securities being sold hereunder by the Company are
duly listed for trading, subject to official notice of issuance, on the
New York Stock Exchange; the certificates for the Securities are in
valid and sufficient form; the holders of outstanding shares of capital
stock of the Company are not entitled to preemptive or other rights to
subscribe for the Securities; and, except as set forth in the
Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
(vi) There is no franchise, contract or other
document of a character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit thereto, which is
not described or filed as required.
(vii) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and
binding obligation of the Company enforceable in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
or other similar laws or court decisions, relating to or affecting
creditors' rights generally, and except to the extent that enforcement
of the indemnification and contribution obligations provided for herein
may be limited by federal or state laws relating to securities or the
public policies underlying such laws.
(viii) The Company is not and, after giving effect to
the offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
3
(ix) No consent, approval, authorization, filing with
or order of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriter in the manner
contemplated herein and in the Prospectus.
(x) Neither the issue and sale of the Securities nor
the consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its Subsidiaries
pursuant to, (i) the charter or by-laws of the Company or any of its
Subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its Subsidiaries is a party or bound or to which its
or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of its Subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its Subsidiaries or any of its
or their properties, except for, with respect to clause (ii), any such
conflict, breach, violation or imposition that could not reasonably be
expected to have a Material Adverse Effect.
(xi) No holders of securities of the Company have
rights to the registration of such securities under the Registration
Statement.
(xii) The consolidated historical financial
statements and schedules of the Company and its consolidated
Subsidiaries included in the Prospectus and the Registration Statement
present fairly in all material respects the financial condition,
results of operations and cash flows of the Company as of the dates and
for the periods indicated, comply as to form with the applicable
accounting requirements of the Act and have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted
therein). The selected financial data incorporated by reference in the
Prospectus and Registration Statement from "Item 6. Selected Financial
Data" included in the Company's Annual Report on Form 10-K for the year
ended December 31, 2001 fairly present, on the basis stated in the
Prospectus and the Registration Statement, the data included therein.
(xiii) Except as disclosed in the Prospectus, no
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of its Subsidiaries or its or their property is pending or, to the
best knowledge of the Company, threatened that (i) could reasonably be
expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a Material Adverse
Effect.
(xiv) Each of the Company and Subsidiaries owns or
leases all such properties as are necessary to the conduct of its
operations as presently conducted.
4
(xv) Neither the Company nor any Subsidiary is in
violation or default of (i) any provision of its charter or bylaws,
(ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to
which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or such Subsidiary or any of its
properties, as applicable, except where, in the case of clauses (ii)
and (iii) above, such violation or default could not reasonably be
expected to have a Material Adverse Effect.
(xvi) Arthur Andersen LLP, who have certified certain
financial statements of the Company and its consolidated Subsidiaries
and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Prospectus, are
independent public accountants with respect to the Company within the
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