EXHIBIT 1.1
EXECUTION COPY
Pride International, Inc.
10% Senior Notes due 0000
Xxxxxxxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx
May 21, 1999
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Pride International, Inc., a corporation organized under the laws of
Louisiana (the "Company"), proposes to sell to the several underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, the principal amount of its securities identified
in Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Original Indenture") dated as of May 1, 1997, as amended and supplemented by
the Second Supplemental Indenture thereto to be dated as of May 26, 1999 (the
Original Indenture, as so amended and supplemented, the "Indenture"), between
the Company and The Chase Manhattan Bank, as trustee (the "Trustee"). To the
extent there are no additional Underwriters listed on Schedule I other than you,
the term Representatives as used herein shall mean you, as Underwriters, and the
terms Representatives and Underwriters shall mean either the singular or plural
as the context requires. 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. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) 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 (the
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file number of which is set forth in Schedule I hereto) 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 Representatives 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).
(b) 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, the Exchange Act and
the Trust Indenture 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; on the Effective Date
and on the Closing Date the Indenture did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act and
the rules thereunder; 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, 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 (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee
or (ii) 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 any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
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(c) The Indenture has been duly authorized and, upon its execution
and delivery by the Company and assuming due execution and delivery by the
Trustee, will be a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws now or hereafter
in effect relating to or affecting rights and remedies of creditors, and
to general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity) and to the discretion of the
court before which any proceeding therefor may be brought, and the
Original Indenture has been duly qualified under the 1939 Act and conforms
to the description thereof in the Registration Statement and the Final
Prospectus.
(d) The Securities have been duly authorized and, when executed by
the Company and authenticated by the Trustee in accordance with the
Indenture and delivered to you against payment therefor in accordance with
the terms hereof, will have been validly issued and delivered, and will
constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws now or hereafter in effect
relating to or affecting rights and remedies of creditors, and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity) and to the discretion of the court before
which any proceeding therefor may be brought, and the Securities will
conform to the description thereof in the Registration Statement and the
Final Prospectus.
(e) The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Louisiana with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Final Prospectus, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify does not have a material adverse effect on the condition
(financial or other), business, properties or results of operations of the
Company and the Subsidiaries (as hereinafter defined) taken as a whole (a
"Material Adverse Effect").
(f) Each "significant subsidiary" (as such term is defined in
Regulation S-X under the Exchange Act) of the Company is listed on Exhibit
21 to the Annual Report on Form 10-K of the Company for the year ended
December 31, 1998 or is described in the Registration Statement as having
been acquired after December 31, 1998. Each of the Company's subsidiaries
listed on Schedule III hereto (the "Subsidiaries") has been duly
organized, is validly existing and is in good standing in the jurisdiction
of its incorporation, with full corporate power and authority to own,
lease and operate its properties and to conduct its business as described
in the Registration Statement and the Final Prospectus, and is duly
registered and qualified to conduct its business and is in good standing
in each jurisdiction or place where the nature of its properties or the
conduct of its business requires such
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registration or qualification, except where the failure so to register or
qualify does not have a Material Adverse Effect.
(g) All of the issued and outstanding shares of capital stock of
each of the Subsidiaries has been duly authorized and validly issued and
are owned directly or indirectly by the Company, subject to such minimum
minority ownership interests in the non-U.S. Subsidiaries as may be
required under applicable law or as otherwise disclosed in the Final
Prospectus. All such shares are fully paid and nonassessable, and, except
as disclosed in the Final Prospectus, are owned by the Company free and
clear of any security interest, mortgage, pledge, claim, lien, encumbrance
or adverse interest of any nature (each, a "Lien"). Except as disclosed in
the Final Prospectus, there are no outstanding subscriptions, rights,
warrants, options, calls, convertible or exchangeable securities,
commitments of sale, or Liens related to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of, or
other ownership interests in, any Subsidiary.
(h) Neither the Company nor any Subsidiary is in violation of or in
default under (a) its certificate or articles of incorporation or bylaws,
or other organizational documents, or (b) any bond, debenture, note or any
other evidence of indebtedness or any indenture, mortgage, deed of trust
or other contract, lease or other instrument to which it is a party or by
which it is bound, or to which any of its property or assets is subject,
which could reasonably be expected to have a Material Adverse Effect,
singly or in the aggregate. No contract or other document of a character
required to be described in the Registration Statement or the Final
Prospectus or to be filed as an exhibit to the Registration Statement is
not so described or filed as required.
(i) This Agreement has been duly and validly authorized, executed
and delivered by the Company.
(j) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement and the Indenture by the
Company, nor the consummation by the Company of the transactions
contemplated hereby and thereby (i) requires any consent, approval,
authorization or other order of or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency
or official (except such as may be required for the registration of the
Securities under the Act, qualification of the Indenture under the Trust
Indenture Act, and compliance with the securities or Blue Sky laws of
various jurisdictions, all of which have been or will be effected in
accordance with this Agreement) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the
certificate or articles of incorporation or bylaws, or other
organizational documents, of the Company or any of the Subsidiaries or
(ii) except as would not have a Material Adverse Effect, conflicts or will
conflict with or constitutes or will constitute a breach of, or a default
under, any agreement, indenture, lease or other instrument to which the
Company or any of the Subsidiaries is a party or by which any of them or
any of their respective properties may be bound, or violates or will
violate any statute, law, regulation or filing or judgment, injunction,
order or decree applicable to the Company or any of the Subsidiaries or
any of their respective properties, or will result in the creation or
imposition of any Lien upon any property or assets of the Company or any
of the Subsidiaries pursuant to the terms of any agreement or instrument
to
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which any of them is a party or by which any of them may be bound or to
which any of the property or assets of any of them is subject.
(k) Except as disclosed in the Final Prospectus, there is no action,
suit or proceeding before or by any court or governmental agency or body
pending against the Company or any of its Subsidiaries that is required to
be disclosed in the Registration Statement or the Final Prospectus, or
which could reasonably be expected to have a Material Adverse Effect, or
materially and adversely affect the performance of the Company's
obligations pursuant to this Agreement and, to the best of the Company's
knowledge, no such proceedings are contemplated or threatened. No action
has been taken with respect to the Company or any Subsidiary, and no
statute, rule or regulation or order has been enacted, adopted or issued
by any governmental agency and no injunction, restraining order or other
order of any court of competent jurisdiction has been issued with respect
to the Company or any Subsidiary that prevents the issuance of the
Securities, suspends the effectiveness of the Registration Statement,
prevents or suspends the use of any Preliminary Prospectus or the Final
Prospectus or prevents or suspends the sale of the Securities in any of
the jurisdictions that you may have specified pursuant to Section 5(e)
hereof; no action, suit or proceeding before any court or arbitrator or
any governmental body, agency or official (domestic or foreign), is
pending against or, to the knowledge of the Company, threatened against,
the Company or any Subsidiary that, if adversely determined, could
reasonably be expected to (a) interfere with or adversely affect the
issuance of the Securities or (b) in any manner invalidate this Agreement;
and every request of the Commission, or any securities authority or agency
of any jurisdiction, for additional information to be included in the
Registration Statement or the Final Prospectus or otherwise has been
complied with in all material respects.
(l) The accountants, PricewaterhouseCoopers LLP, who have certified
or shall certify the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (or any
amendment or supplement thereto) are independent public accountants as
required by the Act.
(m) The consolidated financial statements, together with related
schedules and notes, included or incorporated by reference in the
Registration Statement and the Final Prospectus (and any amendment or
supplement thereto), present fairly in all material respects the
consolidated financial position, results of operations and cash flows of
the Company and the Subsidiaries on the basis stated in the Registration
Statement at the respective dates or for the respective periods to which
they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data
included or incorporated by reference in the Registration Statement and
the Final Prospectus (and any amendment or supplement thereto) are in all
material respects accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company
and the Subsidiaries.
(n) Except as disclosed in the Registration Statement or the Final
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus
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(or any amendment or supplement thereto), neither the Company nor any of
the Subsidiaries has incurred any liability or obligation, direct or
contingent, that is material to the Company and its Subsidiaries taken as
a whole, or entered into any transaction, not in the ordinary course of
business, that is material to the Company and the Subsidiaries taken as a
whole, and there has not been any material adverse change, or any
development involving or which may reasonably be expected to involve, a
prospective material adverse change, in the condition (financial or
other), business or results of operations of the Company and the
Subsidiaries taken as a whole.
(o) Except as otherwise set forth in the Final Prospectus or such as
would not have a Material Adverse Effect, each of the Company and the
Subsidiaries has good and marketable title to all property (real and
personal) described in the Final Prospectus as being owned by it, free and
clear of all Liens, except Liens for taxes not yet due and payable and
Liens described in the Registration Statement or the Final Prospectus or
in a document filed as an exhibit to the Registration Statement. All the
property described in the Final Prospectus as being held under lease by
each of the Company and the Subsidiaries is held by it under valid,
subsisting and enforceable leases, except as would not have a Material
Adverse Effect.
(p) The Company has not distributed and, prior to the later to occur
of (i) the Closing Date and (ii) completion of the distribution of the
Securities, will not distribute any offering material in connection with
the offering and sale of the Securities other than the Registration
Statement, the Preliminary Final Prospectus, the Final Prospectus or other
materials, if any, permitted by the Act.
(q) The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are, in all material respects, necessary to own
its respective properties and to conduct its business in the manner
described in the Final Prospectus, subject to such qualifications as may
be set forth in the Final Prospectus; the Company and each of the
Subsidiaries has fulfilled and performed all its material obligations with
respect to such permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the holder of
any such permit, subject in each case to such qualification as may be set
forth in the Final Prospectus; and, except as described in the Final
Prospectus, none of such permits contains any restriction that is
materially burdensome to the Company and any of the Subsidiaries
considered as a whole.
(r) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's authorization; (ii) transactions
are recorded as necessary to permit preparation of the Company's
consolidated 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
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 material differences.
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(s) Except as would not, individually or in the aggregate, have a
Material Adverse Effect (a) neither the Company nor any Subsidiary is in
violation of any foreign, Federal, state or local laws and regulations
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, ground water,
land surface or subsurface strata), including, without limitation, laws
and regulations relating to emissions, discharges, releases or threatened
releases of toxic or hazardous substances, materials or wastes, or
petroleum and petroleum products ("Materials of Environmental Concern"),
or otherwise relating to the storage, disposal, transport or handling of
Materials of Environmental Concern (collectively, "Environmental Laws"),
which violation includes, but is not limited to, noncompliance with any
permits or other governmental authorizations; (b) neither the Company nor
any Subsidiary has received any communication (written or oral), whether
from a governmental authority or otherwise, alleging any such violation or
noncompliance, and there are no circumstances, either past, present or
that are reasonably foreseeable, that may lead to such violation in the
future; (c) there is no pending or, to the Company's knowledge, threatened
claim, action, investigation or notice (written or oral) by any person or
entity alleging potential liability for investigatory, cleanup, or
governmental responses costs, or natural resources or property damages, or
personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Materials of
Environmental Concern at any location owned or operated by the Company or
any Subsidiary, now or in the past, or (y) circumstances forming the basis
of any violation, or alleged violation, of any Environmental Law
(collectively, "Environmental Claims"); and (d) there are no past or
present actions, activities, circumstances, conditions, events or
incidents, that could form the basis of any Environmental Claim against
the Company or any Subsidiary or against any person or entity whose
liability for any Environmental Claim the Company or any Subsidiary has
retained or assumed either contractually or by operation of law.
(t) The Company and each of the Subsidiaries have filed all material
tax returns required to be filed, other than those filings being contested
in good faith, and neither the Company nor any Subsidiary is in default in
the payment of any taxes which were payable pursuant to said returns or
any assessments with respect thereto.
(u) The Company and the Subsidiaries own or possess the right to use
all patents, trademarks, trademark registrations, service marks, service
xxxx registrations, trade names, copyrights, licenses, inventions, trade
secrets and rights described in the Final Prospectus as being owned by
them or any of them or necessary for the conduct of their respective
businesses, and the Company is not aware of any claim to the contrary or
any challenge by any other person to the rights of the Company and the
Subsidiaries with respect to the foregoing.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to
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each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto
the principal amount of the Securities set forth opposite such Underwriter's
name in Schedule II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Securities
shall be made on the date and at the time specified in Schedule I hereto, which
date and time may be postponed by agreement between the Representatives and the
Company (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of
the Securities shall be made through the facilities of The Depository Trust
Company unless the Representatives shall otherwise instruct.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus or
any Preliminary Final Prospectus) to the Basic Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Final Prospectus is
otherwise required under Rule 424(b), the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory
to the Representatives of such timely filing. The Company will promptly
advise the Representatives (1) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when the
Final Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
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(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3)
supply any supplemented Final Prospectus to you in such quantities as you
may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed or conformed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to the
offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay
any fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where
it is not now so subject.
(f) The Company will not, without the prior written consent of
Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or
any person in privity with the Company or any affiliate of the Company)
directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the Exchange
Act, any debt securities issued or guaranteed by the Company (other than
the Securities) or publicly announce an
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intention to effect any such transaction until the Business Day set forth
on Schedule I hereto.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company shall have requested and caused Xxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxx XxXxxxxxx & Xxxxxxx, L.L.C., counsel for the Company, to
have furnished to the Representatives their opinion, dated the Closing
Date and addressed to the Representatives, to the effect that:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of
Louisiana and has the corporate power and authority to own and lease
its properties and to conduct its business as described in the Final
Prospectus;
(ii) The Company has the corporate power and authority to
enter into and perform this Agreement and to issue, sell and deliver
the Securities; this Agreement and the Indenture have been duly and
validly authorized by all necessary corporate action by the Company
and have been duly executed and delivered by the Company;
(iii) The Securities have been duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement and have
been duly executed and delivered by the Company; and
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(iv) Neither the execution and delivery of the Indenture, 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 (A) conflict with, result in a breach or violation
of, or constitute a default under the terms of any Louisiana
statute, rule or regulation to which the Company or any of its
properties is subject or (B) violate any of the provisions of the
Articles of Incorporation or By-Laws of the Company as in effect on
the date of the opinion.
(c) The Company shall have requested and caused Xxxxxx Xxxx & Co.,
British Virgin Islands counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) Each of Petrodrill Four Limited, Petrodrill Five Limited,
Petrodrill Six Limited and Petrodrill Seven Limited (the "BVI
Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the British Virgin
Islands and has the corporate power and authority to own and lease
its properties and to conduct its business as described in the Final
Prospectus;
(ii) Each of the BVI Subsidiaries is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; and
(iii) All the outstanding shares of capital stock of each BVI
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and (A) 30% of the outstanding shares
of capital stock of the BVI Subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries and (B) except
for liens and security interests relating to indebtedness described
in the Final Prospectus, such shares are owned free and clear of any
perfected security interest and, to the knowledge of such counsel,
any other security interest, claim, lien or encumbrance.
(d) The Company shall have requested and caused XxXxxxxx, Xxxxxxxx &
Xxxxxx, Bahamas counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) Each of Xxxxxx Maritime Limited and Andre Maritime Ltd.
(the "Bahamas Subsidiaries") has been duly organized and is validly
existing as a corporation in good standing under the laws of the
Bahamas and has the corporate power and authority to own and lease
its properties and to conduct its business as described in the Final
Prospectus;
(ii) Each of the Bahamas Subsidiaries is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification except
to the extent that
12
the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken
as a whole; and
(iii) All the outstanding shares of capital stock of each
Bahamas Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable and (A) 51% of the outstanding
shares of capital stock of the Bahamas Subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries and (B)
except for liens and security interests relating to indebtedness
described in the Final Prospectus, such shares are owned free and
clear of any perfected security interest and, to the knowledge of
such counsel, any other security interest, claim, lien or
encumbrance.
(e) The Company shall have requested and caused Xxxxx & XxXxxxxx and
Brons & Xxxxx, Venezuelan and Argentine counsel for the Company,
respectively, to have furnished to the Representatives their opinion,
dated the Closing Date and addressed to the Representatives, to the effect
that:
(i) Each of Pride International, S.A., Pride International,
C.A. and Pride Drilling, C.A. (the "South American Subsidiaries")
has been duly organized and is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation
and has the corporate power and authority to own and lease its
properties and to conduct is business as described in the Final
Prospectus;
(ii) Each of the South American Subsidiaries is duly qualified
to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and
(iii) All the outstanding shares of capital stock of each
South American Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Final Prospectus, all outstanding shares
of capital stock of the South American Subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries free
and clear of any perfected security interest and, to the knowledge
of such counsel, any other security interest, claim, lien or
encumbrance.
(f) The Company shall have requested and caused Xxxx Xxxx Xxxxxxxxx,
Associate General Counsel of Pride Forasol, S.A., to have furnished to the
Representatives his opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) Each of Pride-Forasol, S.A. and Pride Foramer, S.A. (the
"Forasol Subsidiaries") has been duly organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and
authority to own and lease
13
its properties and to conduct its business as described in the Final
Prospectus;
(ii) Each of the Forasol Subsidiaries is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; and
(iii) All the outstanding shares of capital stock of each
Forasol Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise set
forth in the Final Prospectus, all outstanding shares of capital
stock of the Forasol Subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any
perfected security interest and, to the knowledge of such counsel,
any other security interest, claim, lien or encumbrance.
(g) The Company shall have requested and caused Xxxxx & Xxxxx,
L.L.P., counsel for the Company, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) The Securities conform to the description thereof
contained in the Final Prospectus;
(ii) The Indenture has been duly qualified under the Trust
Indenture Act, and the Indenture (assuming due authorization,
execution and delivery thereof by the Company and the Trustee) is,
and the Securities (assuming due authorization thereof) when issued,
executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Indenture and this Agreement will,
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms,
except to the extent such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general principles
of equity (whether considered in a proceeding in equity or at law)
and to the discretion of the court before which any proceeding
therefor may be brought;
(iii) The Registration Statement has become effective under
the Act; any required filing of any Preliminary Final Prospectus and
the Final Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been instituted or
threatened by the Commission, and the Registration Statement, at the
Effective Time, and the Final Prospectus, as of its issue date and
on the Closing Date (except in each case, the financial
14
statements, the notes thereto and related schedules and other
financial, numerical, statistical or accounting data included or
incorporated by reference therein or omitted therefrom, as to which
such counsel need express no opinion) appear on their face to comply
as to form in all material respects with the applicable requirements
of the Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder;
(iv) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary or their respective property, of a
character required to be disclosed in the Registration Statement
which is not disclosed in the Final Prospectus, and there are no
contracts or agreements to which the Company or any Subsidiary is a
party or by which any of them may be bound that are required to be
described in the Registration Statement or Final Prospectus, or to
be filed as an exhibit thereto other than those described therein or
filed or incorporated by reference as exhibits thereto;
(v) The Company is not, and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus, will not be
an "investment company" as defined in the Investment Company Act of
1940, as amended;
(vi) To the knowledge of such counsel, no consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required to be obtained by the Company in
connection with the sale by the Company of the Securities to the
Underwriters, except as such as have been obtained under the Act and
the Trust Indenture 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 Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and such
other approvals (specified in such opinion) as have been obtained;
and
(vii) Neither the execution and delivery by the Company of the
Indenture, the issue and sale by the Company of the Securities, nor
the performance of the Company's obligations pursuant to this
Agreement and the Indenture will conflict with, result in a breach
or violation of, or constitute a default under (A) the terms of any
indenture or other agreement or instrument to which the Company or
any Subsidiary is a party or by which any of them is bound which is
material to the Company and its Subsidiaries considered as a whole
and which (i) relates to indebtedness of the Company or (ii) is
filed or incorporated by reference as an exhibit to the Company's
Annual Report on Form 10-K for the year ended December 31, 1998, or
the Company's Quarterly Report on Form 10-Q for the quarter ended
Xxxxx 00, 0000, (X) any statute, rule or regulation to which the
Company or any Subsidiary is a party or by which any of them is
bound, or to which any of the properties of the Company or any
Subsidiary is subject, or (c) any order of any court or governmental
agency or body having jurisdiction over the Company or any
Subsidiary or any of their properties of which such counsel has
knowledge.
15
(h) The Company shall have requested and caused Xxxxxx X. Xxxxxxx,
Vice President and General Counsel for the Company, to have furnished to
the Representatives his opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) Each of the Subsidiaries that has been organized under the
laws of a state of the United States (the "U.S. Subsidiaries") has
been duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and has
the corporate power and authority to own and lease its properties
and to conduct is business as described in the Final Prospectus;
(ii) The Company and each of the U.S. Subsidiaries is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified
would not have a Material Adverse Effect;
(iii) All the outstanding shares of capital stock of each U.S.
Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
U.S. Subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest and, to the knowledge of such counsel, any other
security interest, claim, lien or encumbrance;
(iv) Neither the issuance and sale by the Company of the
Securities nor the performance of the Company's obligations pursuant
to this Agreement and the Indenture will violate any of the
provisions of the charter or by-laws of the Company or any U.S.
Subsidiary as in effect on the date of the opinion;
(v) To the knowledge of such counsel, there is no current,
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary or to which any of their respective
property is subject of a character required to be disclosed in the
Registration Statement which is not disclosed in the Prospectus;
(vi) Except as will not have a Material Adverse Effect, to the
knowledge of such counsel, each of the Company and its Subsidiaries
has such permits as are in all material respects necessary to own,
lease and operate its properties and to conduct its business in the
manner described in the Final Prospectus; to the knowledge of such
counsel, each of the Company and its Subsidiaries has fulfilled and
performed all of its material obligations with respect to such
permits and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or
results in any material impairment of the rights of the holder of
any such permit, subject in each case to such qualification as may
be set forth in the Final Prospectus; and
16
(vii) To the knowledge of such counsel, neither the execution
and delivery of the Indenture by the Company, the issue and sale by
the Company of the Securities, nor the performance of the Company's
obligations pursuant to this Agreement and the Indenture will (A)
conflict with, result in a breach or violation of, or constitute a
default under the terms of any material indenture or other material
agreement or instrument to which the Company or any U.S. Subsidiary
is a party or bound, or constitute a default under, any statute,
rule or regulation to which any non-U.S. Subsidiary is a party of by
which any of them is bound, or to which any of the properties of any
non-U.S. Subsidiary is subject, or any order of any court or
governmental agency or body having jurisdiction over any non-U.S.
Subsidiary or any of their properties, except as will not have a
Material Adverse Effect, or (B) violate any of the provisions of the
charter or by-laws of any non-U.S. Subsidiary as in effect on the
date of the opinion.
In addition, each of Xxxxx & Xxxxx, L.L.P. and Xxxxxx X. Xxxxxxx
shall state that such counsel has participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants of the Company, representatives of the
Underwriters and counsel to the Underwriters at which the contents of the
Registration Statement and the Final Prospectus were discussed and,
although such counsel did not independently verify such information and is
not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Final Prospectus, on the basis of the foregoing (relying
as to factual matters upon the statements of officers and other
representatives of the Company and State officials and as to materiality
in part upon statements of officers and other representatives of the
Company) no facts came to such counsel's attention that led such counsel
to believe that the Registration Statement (other than the financial
statements, the notes thereto and the auditor's reports thereon and the
related schedules and the other financial, numerical, statistical and
accounting data included or incorporated by reference therein, or omitted
therefrom, and the exhibits thereto, as to which such counsel need not
comment) as of its effective date contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, or that the Final Prospectus (other than the financial
statements, the notes thereto and the auditor's reports thereon and the
related schedules and the other financial, numerical, statistical and
accounting data included or incorporated by reference therein, or omitted
therefrom, and the exhibits thereto, as to which such counsel need not
comment) as of its issue date or the Closing Date contained an untrue
statement of a material fact or omitted 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.
The opinion of Xxxxx & Xxxxx, L.L.P. shall be limited to the laws of
the United States and the laws of the State of New York and the State of
Texas. The opinion of Xxxx Xxxxxx Xxxxxx Xxxxxxx Xxxxx XxXxxxxxx &
Xxxxxxx, L.L.C. shall be limited to the laws of the State of Louisiana.
The opinion of Xxxxxx X. Xxxxxxx shall be limited to the laws of the
United States, the laws of the State of Texas, and the corporate law of
the State of Delaware. The opinion of each foreign counsel
17
shall be limited to the laws of the jurisdiction in which the foreign
Subsidiary with respect to which such opinion is given is organized.
(i) The Representatives shall have received from Cravath, Swaine &
Xxxxx, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Indenture, the Registration
Statement, the Final Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably require, and
the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(j) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Final
Prospectus, any supplements to the Final Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened by the Commission; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(k) The Company shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representatives, at
the Execution Time and at the Closing Date, letters, (which may refer to
letters previously delivered to one or more of the Representatives), dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder and that they have performed a review of the
unaudited interim financial information of the Company for the three-month
period ended March 31, 1999, and as at March 31,
18
1999, in accordance with Statement on Auditing Standards No. 71, and
stating in effect, except as provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference
in the Registration Statement and the Final Prospectus and reported
on by them comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act
and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review, in accordance with standards
established under Statement on Auditing Standards No. 71, of the
unaudited interim financial information for the three-month period
ended March 31, 1999 and as at March 31, 1999, as indicated in their
report dated May 14, 1999 incorporated by reference in the
Registration Statement and the Final Prospectus; carrying out
certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and audit committees of the
Company and the Subsidiaries; and inquiries of certain officials of
the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and
events subsequent to December 31, 1998, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and
the Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act
and with the related rules and regulations adopted by the
Commission with respect to financial statements included or
incorporated by reference in quarterly reports on Form 10-Q
under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated by reference in the Registration
Statement and the Final Prospectus;
(2) with respect to the period subsequent to March 31,
1999, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
long-term debt of the Company and its subsidiaries or capital
stock of the Company or decreases in the stockholders' equity
of the Company as compared with the amounts shown on the March
31, 1999 consolidated balance sheet included or incorporated
by reference in the Registration Statement and the Final
Prospectus, or for the period from April 1, 1999 to such
specified date there were any decreases, as compared with the
corresponding period in the preceding quarter in revenues,
earnings from operations or earnings before income taxes of
the Company
19
and its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is not deemed
necessary by the Representatives; and
(3) the information included or incorporated by
reference in the Registration Statement and Final Prospectus
in response to Regulation S-K, Item 301 (Selected Financial
Data), Item 302 (Supplementary Financial Information), Item
402 (Executive Compensation) and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including information set
forth under the captions "Summary", "Selected Financial Data",
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and "Description of Business" in the Final
Prospectus, the information included or incorporated by reference in
Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K,
incorporated by reference in the Registration Statement and the
Final Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated by reference in the Company's
Quarterly Reports on Form 10- Q, incorporated by reference in the
Registration Statement and the Final Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding
any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma
financial information included or incorporated by reference in the
Registration Statement and the Final Prospectus (the "pro forma
financial statements"); carrying out certain specified procedures;
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters; and proving the
arithmetic accuracy of the application of the pro forma adjustments
to the historical amounts in the pro forma financial statements,
nothing came to their attention which caused them to believe that
the pro forma financial statements do not comply as to form in all
material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of such statements.
References to the Final Prospectus in this paragraph (k) include any
supplement thereto at the date of the letter.
(l) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment
20
thereof) and the Final Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (k) of this Section 6 (other
than any change or decrease specified in such letter or letters specified
at the Execution Time) or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in the Final Prospectus (exclusive of any supplement thereto) the effect
of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive of
any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(m) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(n) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancelation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Xxxxx & Xxxxx, L.L.P., counsel for the Company at 000
Xxxxxxxxx, Xxxxxxx, XX, xx the Closing Date.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through Xxxxxxx Xxxxx Barney Inc. on demand for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of one underwriters' counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and
21
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have and
(ii) with respect to any untrue statement or omission of a material fact made in
any Preliminary Final Prospectus, the indemnity agreement contained in this
Section 8(a) shall not inure to the benefit of any Underwriter (or any of the
directors, officers, employees, and agents of such Underwriter or any
controlling person of such Underwriter) 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 Underwriter
occurs under the circumstances where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment (with the burden of
proof resting with the Company) that (w) the Company had previously furnished
copies of the Final Prospectus to the Underwriters, (x) delivery of the Final
Prospectus was required by the Act to be made to such person, (y) the untrue
statement or omission of a material fact contained in the Preliminary Final
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) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity, and will reimburse the Company and such other persons for any legal
or other expense reasonably incurred by the Company or such other persons in
connection with investigating or defending any such action or claim as such
expenses are incurred. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph of the cover page regarding
delivery of the Securities and, under the heading "Underwriting" or "Plan of
Distribution", (i) the list of Underwriters and their respective participation
in the sale of the Securities, (ii) the sentences related to concessions and
22
reallowances and (iii) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in any Preliminary Final Prospectus and
the Final Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in any Preliminary Final
Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
An indemnifying party shall not be liable under this Section 8 to any
indemnified party regarding any settlement or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
is consented to by such indemnifying party, which consent shall not be
unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate
23
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and by the Underwriters on the
other from the offering of the Securities; PROVIDED, HOWEVER, that in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto).
24
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney
Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
Xxxxxx X. Xxxxxxx, General Counsel (fax no.: (000) 000-0000) and confirmed to it
at 0000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx, 00000, attention of the Legal
Department.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder. No purchaser of Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
13. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
14. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. HEADINGS. The section headings used herein are for convenience
only and shall not affect the construction hereof.
16. DEFINITIONS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the
rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
25
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A.
" Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Pride International, Inc.
By: /S/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: President and Chief
Executive Officer
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
By: Xxxxxxx Xxxxx Barney Inc.
By:/S/ XXXX XXXXXX
Name: Xxxx Xxxxxx
Title: Managing Director
For themselves and the other several Underwriters, if any, named in Schedule II
to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated May 21, 1999
Registration Statement No. 333-44925
Representative(s): Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Title, Purchase Price and Description of Securities:
Title: 10% Senior Notes due 2009
Principal amount: $200,000,000
Purchase price (include accrued
interest or amortization, if
any): 97.625%
Sinking fund provisions: None
Redemption provisions: Redeemable at the Company's option at the
times and prices specified in the Final Prospectus.
Other provisions: As provided in the Indenture.
Closing Date, Time and Location: May 26, 1999 at 10:00 a.m. at Xxxxx & Xxxxx,
L.L.P., 000 Xxxxxxxxx, Xxxxxxx, XX
Type of Offering: Non-delayed
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s): May 26, 1999
Modification of items to be covered by the letter from
PricewaterhouseCoopers LLP delivered pursuant to
Section 6(e) at the Execution Time: None
SCHEDULE II
PRINCIPAL AMOUNT
OF SECURITIES TO
UNDERWRITERS BE PURCHASED
------------ ----------------
Xxxxxxx Xxxxx Barney Inc. $ 140,000,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation 60,000,000
----------------
Total ......................... $ 200,000,000
================
SCHEDULE III
Pride Offshore, Inc. (Delaware)
Pride International, Ltd. (British Virgin Islands)
Pride International, S.A. (Argentina)
Pride Drilling C.A. (Venezuela)
Pride International C.A. (Venezuela)
Pride Colombia S.A. (British Virgin Islands)
Pride International Holdings, Inc. (Delaware)
Forasub B.V. (Netherlands)
Pride-Forasol S.A. (France)
Al-Jazirah Forasol Drilling Corp. (Liberia)
Pride-Foramer S.A. (France)
Forafels Inc. (Panama)
Hispano Americano de Petroleos SA (Argentina)
Somaser SNC (France)
National Drilling & Services, Inc. (Oman)
Forinter Ltd. (Jersey)
Dupont Maritime Ltd. (Liberia)
Xxxxxx Maritime Ltd. (Liberia)
Xxxxxx Maritime Limited (Bahamas)
Andre Maritime Ltd. (Bahamas)
