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EXHIBIT 1.1
Draft of 6/5/01
6,500,000 SHARES
W-H ENERGY SERVICES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
[June __],2001
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK ALEX. XXXXX
UBS WARBURG
XXXXXXX & COMPANY INTERNATIONAL,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. W-H Energy Services, Inc., a Texas corporation
("COMPANY") proposes to issue and sell 1,750,000 shares ("COMPANY SHARES") of
its common stock ("COMMON STOCK"), par value $.0001 per share, and the
shareholders listed in Schedule A hereto ("SELLING SHAREHOLDERS") propose
severally to sell an aggregate of 2,752,188 outstanding shares ("FIRM SECONDARY
SHARES") of Common Stock and warrants ("WARRANTS") immediately exercisable for
1,997,812 shares of Common Stock ("WARRANT SHARES"). The Company Shares and the
Firm Secondary Shares are hereinafter collectively referred to as the "FIRM
SHARES", and the Firm Shares and the Warrants are hereinafter collectively
referred to as the "FIRM SECURITIES".
The Selling Shareholders listed on Schedule A as selling shares of
common stock upon any exercise of the over-allotment option ("OPTION SELLING
SHAREHOLDERS") also propose severally to sell to the Underwriters, at the option
of the Underwriters, an aggregate of not more than 975,000 additional
outstanding shares ("OPTIONAL SHARES") of Common Stock, as set forth below. The
Firm Securities and the Optional Shares are hereinafter collectively called the
"OFFERED SECURITIES".
The Firm Secondary Shares and the Optional Shares are hereinafter
collectively referred to as the "SECONDARY SHARES". The Company Shares, the
Secondary Shares and the Warrant Shares are hereinafter collectively called the
"SHARES". The Company and the Selling Shareholders hereby agree with the several
Underwriters named in Schedule B hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Shareholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-62140) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A)
has been declared effective under the Securities Act of 1933 ("Act")
and is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
(the "INITIAL REGISTRATION STATEMENT") has been declared effective,
either (A) an additional registration statement (the "ADDITIONAL
REGISTRATION STATEMENT") relating to the Offered Securities may have
been filed with the
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Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional
registration statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing pursuant
to such Rule and upon such filing the Offered Securities will all have
been duly registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Company
does not propose to amend the initial registration statement or if an
additional registration statement has been filed and the Company does
not propose to amend it, and if any post-effective amendment to either
such registration statement has been filed with the Commission prior to
the execution and delivery of this Agreement, the most recent amendment
(if any) to each such registration statement has been declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) ("RULE 462(c)") under the Act or, in the case
of the additional registration statement, Rule 462(b). For purposes of
this Agreement, "EFFECTIVE TIME" with respect to the initial
registration statement or, if filed prior to the execution and delivery
of this Agreement, the additional registration statement means (A) if
the Company has advised the Representatives that it does not propose to
amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company
has advised the Representatives that it proposes to file an amendment
or post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement
has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives that it
proposes to file one, "EFFECTIVE TIME" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof. The initial registration statement,
as amended at its Effective Time, including all information contained
in the additional registration statement (if any) and deemed to be a
part of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter
referred to as the "Prospectus". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act and the rules and regulations of the Commission ("RULES AND
REGULATIONS") and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, (B) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed or will conform, in all respects to
the requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each conforms, and at
the time of filing of the Prospectus pursuant to Rule 424(b) or (if no
such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is
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included, each Registration Statement and the Prospectus will conform,
in all respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading. If the Effective Time of
the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act
and the Rules and Regulations, neither of such documents will include
any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do not
apply to statements in or omissions from a Registration Statement or
the Prospectus based upon written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
is that described as such in Section 7(c) hereof.
(iii) Each of the Company and its subsidiaries listed on Schedule C
hereto, which constitute all of the subsidiaries of the Company (the
"SUBSIDIARIES"), has been duly incorporated, 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 carry on its
business as described in the Prospectus and to own, lease and operate
its properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction set
forth opposite its name on Schedule C hereto, and such jurisdictions
constitute all of the jurisdictions, with respect to each of the
Company and its Subsidiaries, in which the nature of their business or
their ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a material
adverse effect on the business, prospects, financial condition or
results of operations of the Company and its Subsidiaries, taken as a
whole.
(iv) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or
issued by the Company or any of its Subsidiaries relating to or
entitling any person to purchase or otherwise to acquire any shares of
the capital stock of the Company or any of its Subsidiaries, except as
otherwise disclosed in the Prospectus.
(v) All of the outstanding shares of capital stock of the Company
(including the Secondary Shares) have been duly authorized and validly
issued and are fully paid, non-assessable and not subject to any
preemptive or similar rights; and the Company Shares to be issued and
sold by the Company have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor as provided by
this Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of such Company Shares will not be subject to any
preemptive or similar rights.
(vi) All of the Warrants have been duly authorized and validly issued
and are not subject to any preemptive or similar rights; and all of the
Warrant Shares have been duly authorized and reserved for issuance, and
when issued and delivered to the Underwriters against payment therefor
as provided by this Agreement, the Warrant Shares will be validly
issued, fully paid and nonassessable, and the issuance of such Warrant
Shares will not be subject to any preemptive or similar rights.
(vii) All of the outstanding shares of capital stock of each of the
Company's Subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable, and are owned by the Company,
directly or indirectly through one or more Subsidiaries, free and clear
of any security interest, claim, lien, encumbrance or adverse interest
of any nature, except as disclosed in the Registration Statement.
(viii) The authorized capital stock of the Company conform as to legal
matters to the description thereof contained in the Prospectus.
(ix) Neither the Company nor any of its Subsidiaries is in violation of
its respective charter or by-laws or in default in the performance of
any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company
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and its Subsidiaries, taken as a whole, to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or their respective property is bound.
(x) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof
and the consummation of the transactions contemplated hereby
(including, without limitation, the purchase and exercise by the
Underwriters of the Warrants) will not (i) require any consent,
approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required
under the securities or Blue Sky laws of the various states), (ii)
conflict with or constitute a breach of any of the terms or provisions
of, or a default under, the charter or by-laws of the Company or any of
its Subsidiaries or any indenture, loan agreement, mortgage, lease or
other agreement or instrument (including, without limitation, the
Warrants) that is material to the Company and its Subsidiaries, taken
as a whole, to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries or their respective
property is bound, (iii) violate or conflict with any applicable law or
any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any
of its Subsidiaries or their respective property or (iv) result in the
suspension, termination or revocation of any Authorization (as defined
below) of the Company or any of its Subsidiaries or any other
impairment of the rights of the holder of any such Authorization.
(xi) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its Subsidiaries is or, to
the Company's knowledge, could be a party or to which any of their
respective property is or, to the Company's knowledge, could be subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described; nor are there any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not so
described or filed as required.
(xii) Neither the Company nor any of its Subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"), any provisions of the Employee Retirement Income Security Act
of 1974, as amended, or any provisions of the Foreign Corrupt Practices
Act or the rules and regulations promulgated thereunder, except for
such violations which, individually or in the aggregate, would not have
a material adverse effect on the business, prospects, financial
condition or results of operation of the Company and its Subsidiaries,
taken as a whole.
(xiii) Each of the Company and its Subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "AUTHORIZATION") of, and has made all filings with
and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals,
including, without limitation, under any applicable Environmental Laws,
as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would
not, individually or in the aggregate, have a material adverse effect
on the business, prospects, financial condition or results of
operations of the Company and its Subsidiaries, taken as a whole. Each
such Authorization is valid and in full force and effect and each of
the Company and its Subsidiaries is in compliance with all the terms
and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which
allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any
other impairment of the rights of the holder of any such Authorization;
and such Authorizations contain no restrictions that are materially
burdensome to the Company or any of its Subsidiaries; except where such
failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any
such restriction would not, individually or in the aggregate, have a
material adverse effect on the business, prospects, financial condition
or results of operations of the Company and its Subsidiaries, taken as
a whole.
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(xiv) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any Authorization, any related constraints
on operating activities and any potential liabilities to third parties)
which would, individually or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company and its Subsidiaries, taken as a whole.
(xv) This Agreement has been duly authorized, executed and delivered by
the Company.
(xvi) Xxxxxx Xxxxxxxx LLP are independent public accountants with
respect to the Company and its Subsidiaries as required by the Act.
(xvii) The consolidated financial statements included in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), together with related schedules and notes, present
fairly the consolidated financial position, results of operations and
changes in financial position of the Company and its Subsidiaries on
the basis stated therein 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; the supporting schedules, if
any, included in the Registration Statement present fairly in
accordance with generally accepted accounting principles the
information required to be stated therein; and the other financial and
statistical information and data set forth in the Registration
Statement and the 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.
(xviii) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be, an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(xix) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to
any securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement, except for those contracts, agreements or understandings
that are disclosed in the Prospectus and the registration rights under
which have been waived in connection with the offering of the Shares.
(xx) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), (i) there has not occurred any material adverse change or
any development involving a prospective material adverse change in the
business, prospects, financial condition or results of operation of the
Company and its Subsidiaries, taken as a whole, (ii) there has not been
any material adverse change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt
of the Company or any of its Subsidiaries and (iii) neither the Company
nor any of its Subsidiaries has incurred any material liability or
obligation, direct or contingent.
(xxi) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters pursuant
to this Agreement shall be deemed to be a representation and warranty
by the Company to the Underwriters as to the matters covered thereby.
(xxii) The Company and its Subsidiaries have good and indefeasible
title to all real property and good and marketable title to all
personal property owned by them which is material to the business of
the Company and its Subsidiaries, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company and its Subsidiaries; and any real
property and buildings held under lease by the Company and its
Subsidiaries are held by them
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under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its
Subsidiaries, in each case except as described in the Prospectus.
(xxiii) The Company and its Subsidiaries own or possess, or can acquire
on reasonable terms, all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names ("INTELLECTUAL
PROPERTY") currently employed by them in connection with the business
now operated by them except where the failure to own or possess or
otherwise be able to acquire such intellectual property would not,
individually or in the aggregate, have a material adverse effect on the
business, prospects, financial condition or results of operation of the
Company and its Subsidiaries, taken as a whole; and except as disclosed
in the Prospectus, neither the Company nor any of its Subsidiaries has
received any notice of infringement of or conflict with asserted rights
of others with respect to any of such intellectual property which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the business, prospects, financial condition or results of operations
of the Company and its Subsidiaries, taken as a whole.
(xxiv) The pro forma financial statements of the Company and its
Subsidiaries and the related notes thereto set forth in the
Registration Statement and the Prospectus (and any supplement or
amendment thereto) have been prepared on a basis consistent with the
historical financial statements of the Company and its Subsidiaries,
give effect to the assumptions used in the preparation thereof on a
reasonable basis and in good faith and present fairly the historical
and proposed transactions contemplated by the Registration Statement
and the Prospectus. Such pro forma financial statements have been
prepared in accordance with the applicable requirements of Rule 11-02
of Regulation S-X promulgated by the Commission. The other pro forma
financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any supplement or
amendment thereto) are, in all material respects, accurately presented
and prepared on a basis consistent with the pro forma financial
statements.
(xxv) There is no (i) significant unfair labor practice complaint,
grievance or arbitration proceeding pending or threatened against the
Company or any of its Subsidiaries before the National Labor Relations
Board or any state or local labor relations board, (ii) strike, labor
dispute, slowdown or stoppage pending or threatened against the Company
or any of its Subsidiaries or (iii) union representation question
existing with respect to the employees of the Company and its
Subsidiaries, except for such actions specified in clause (i), (ii) or
(iii) above, which, individually or in the aggregate, would not have a
material adverse effect on the business, prospects, financial condition
or results of operations of the Company and its Subsidiaries, taken as
a whole. To the Company's knowledge, no collective bargaining
organizing activities are taking place with respect to the Company or
any of its Subsidiaries.
(xxvi) All material tax returns required to be filed by the Company and
each of its Subsidiaries in any jurisdiction have been filed, other
than those filings being contested in good faith, and all material
taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any of its
Subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(xxvii) The Warrants were duly authorized, executed and delivered by
the Company and constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws now or hereinafter in
effect relating to or affecting creditors' rights generally and to
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law). The sale of the
Warrants to the Underwriters pursuant to the terms of this Agreement
does not violate any provision thereof and upon such sale the Warrants
will be fully immediately exercisable by the Underwriters as
contemplated herein.
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(xxviii) Upon the Underwriters' purchase of the Warrants and payment to
the Company of the Warrant Exercise Price (as hereinafter defined) in
respect of each Warrant pursuant to this Agreement, all of the
requirements (whether under the Warrants or otherwise) with respect to
the Underwriters' exercise of such Warrants for Warrant Shares will be
satisfied, and the Company will be unconditionally obligated to
immediately issue duly authorized and validly issued, fully paid and
nonassessable shares of Common Stock in respect thereof.
(b) Each Selling Shareholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Shareholder is the lawful owner of the Secondary
Shares to be sold by such Selling Shareholder pursuant to this
Agreement and has, and on any Closing Date will have, good and clear
title to such Securities, free of all restrictions on transfer, liens,
encumbrances, security interests, equities and claims, except pursuant
to the Power of Attorney and Custody Agreement (each as defined below);
and upon delivery of and payment for the Secondary Shares to be sold by
such Selling Shareholder pursuant to this Agreement, good and clear
title to such Secondary Shares will pass to the Underwriters, free of
all restrictions on transfer, liens, encumbrances, security interests,
equities and claims whatsoever.
(ii) In the case of Selling Shareholders selling Warrants, such Selling
Shareholder is the lawful owner of the Warrants to be sold by such
Selling Shareholder pursuant to this Agreement and has, and on any
Closing Date will have, good and clear title to such Warrants free of
all restrictions on transfer, liens, encumbrances, security interests,
equities and claims, except pursuant to the Power of Attorney and
Custody Agreement; the sale of the Warrants to the Underwriters
pursuant to the terms of this Agreement does not violate any provision
thereof and upon such sale the Warrants will be fully immediately
exercisable by the Underwriters as contemplated herein; and upon
delivery of, and payment for, the Warrants, as provided herein, the
Underwriters will receive good and clear title to such Warrants and,
upon exercise of the Warrants in accordance with their terms, the
Warrant Shares, free of all restrictions on transfer, liens,
encumbrances, security interests, equities and claims whatsoever.
(iii) Such Selling Shareholder has, and on any Closing Date will have,
full legal right, power and authority, and all authorization and
approval required by law, to enter into this Agreement, the Custody
Agreement (the "CUSTODY AGREEMENT") signed by such Selling Shareholder
and Computershare Trust Company, Inc., as Custodian (the "CUSTODIAN"),
relating to the deposit of the Secondary Shares or Warrants, as the
case may be, to be sold by such Selling Shareholder and the Power of
Attorney ("POWER OF ATTORNEY") appointing certain individuals as such
Selling Shareholder's attorneys-in-fact (the "ATTORNEYS-IN-FACT") to
the extent set forth therein and relating to the transactions
contemplated hereby; and to sell, assign, transfer and deliver the
Secondary Shares or Warrants, as the case may be, to be sold by such
Selling Shareholder in the manner provided herein and therein.
(iv) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Shareholder.
(v) The Custody Agreement and the Power of Attorney of such Selling
Shareholder have been duly authorized, executed and delivered by such
Selling Shareholder and are valid and binding agreements of such
Selling Shareholder, enforceable in accordance with their terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws now or hereinafter in
effect relating to or affecting creditors' rights generally and to
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(vi) The execution, delivery and performance of this Agreement and the
Custody Agreement and the Power of Attorney of such Selling Shareholder
by or on behalf of such Selling Shareholder, the compliance by such
Selling Shareholder with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will
not (i) require any consent, approval, authorization or other order of,
or qualification with, any court or governmental body or agency (except
such as may be
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required under the securities or Blue Sky laws of the various states),
(ii) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the organizational documents of such
Selling Shareholder, if such Selling Shareholder is not an individual,
or any indenture, loan agreement, mortgage, lease or other material
agreement or instrument to which such Selling Shareholder is a party or
by which such Selling Shareholder or any property of such Selling
Shareholder is bound or (iii) violate or conflict with any applicable
law or any rule, regulation, judgment, order or decree of any court or
any governmental body or agency having jurisdiction over such Selling
Shareholder or any property of such Selling Shareholder.
(vii) The information in the Registration Statement and the
Prospectus under the caption "Principal and Selling Shareholders"
which specifically relates to such Selling Shareholders does not, and
will not on the Closing Date, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statement therein, in light of the
circumstances under which they were made, not misleading.
(viii) At any time during the period described in Section 5(c), if
there is any change in the information referred to in Section
2(b)(vii), such Selling Shareholder will immediately notify you of such
change.
(ix) Each certificate signed by or on behalf of such Selling
Shareholder and delivered to the Underwriters or counsel for the
Underwriters pursuant to this Agreement shall be deemed to be a
representation and warranty by such Selling Shareholder to the
Underwriters as to the matters covered thereby.
(x) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between such Selling Shareholder and any
person that would give rise to a valid claim against such Selling
Shareholder or any Underwriter for a brokerage commission, finder's fee
or other like payment in connection with this offering.
The reference in this Section 2(b) to a Power of Attorney shall not
apply to the following Selling Shareholders: W-H Investment, L.P. and W-H
Investment II, G.P. (collectively, the "JORDAN FUNDS")
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and
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agreements herein contained, but subject to the terms and conditions herein set
forth, the Company and each Selling Shareholder agree, severally and not
jointly, to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company and each Selling Shareholder, (i) at a
purchase price of $ per share ("SHARE PURCHASE PRICE") the number of Firm
Shares and (ii) at a purchase price per Warrant equal to the Share Purchase
Price less the warrant exercise price listed opposite the name of such Selling
Shareholder in Schedule A hereto ("WARRANT EXERCISE PRICE") the number of
Warrants, in each case rounded up or down, as determined by Credit Suisse First
Boston Corporation ("CSFBC") in its discretion, in order to avoid fractions,
obtained by multiplying 1,750,000 Company Shares, in the case of the Company,
and the number of Firm Secondary Shares or Warrants, as the case may be, set
forth opposite the name of such Selling Shareholder in Schedule A hereto, in the
case of such Selling Shareholder, in each case by a fraction the numerator of
which is the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule B hereto and the denominator of which is the total
number of Firm Securities.
Certificates in negotiable form for the Secondary Shares and the
Warrants, as the case may be, to be sold by the Selling Shareholders hereunder
have been placed in custody, for delivery under this Agreement, under Custody
Agreements made with the Custodian. Each Selling Shareholder agrees that the
Secondary Shares or Warrants, as the case may be, represented by the
certificates held in custody for the Selling Shareholders under such Custody
Agreements are subject to the interests of the Underwriters hereunder, that the
arrangements made by the Selling Shareholders for such custody are to that
extent irrevocable, and that the obligations of the Selling Shareholders
hereunder shall not be terminated by operation of law, whether by the death of
any individual Selling Shareholder or the occurrence of any other event, or in
the case of a trust, by the death of any trustee or trustees or the termination
of such trust. If any individual Selling Shareholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Secondary Shares and the
Warrants hereunder, certificates for such Secondary Shares and the Warrants
shall be delivered by the Custodian in accordance with the terms and conditions
of this Agreement as if such death or other event or termination had not
occurred, regardless of whether or not the Custodian shall have received notice
of such death or other event or termination.
The Company and the Custodian will deliver the Firm Shares and the
Warrants to the Representatives for the accounts of the Underwriters, against
payment of the purchase price in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of the Company in the case of 1,750,000 Firm Company Shares and [the
aggregate Warrant Exercise Price in respect of the Warrants] and the Selling
Shareholders in the case of an aggregate of 1,997,812 shares of Firm Secondary
Shares and an aggregate of 2,752,188 Warrants, at the office of Xxxxxxx & Xxxxx
L.L.P., at 9:30 A.M., New York time, on [June] ___ , 2001, or at such other time
not later than seven full business days thereafter as CSFBC and the Company
determine, such time being herein referred to as the "FIRST CLOSING DATE". For
purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the First
Closing Date (if later than the otherwise applicable settlement date) shall be
the settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering. The certificates for the Firm
Shares and Warrant Shares so to be delivered will be in definitive form, in such
denominations and registered in such names as CSFBC requests and will be made
available for checking and packaging at the office of CSFBC at least 24 hours
prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and
the Option Selling Shareholders from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may purchase all or
less than all of the Optional Shares at the Share Purchase Price. The Option
Selling Shareholders agree, severally and not jointly, to sell to the
Underwriters the respective numbers of Optional Shares obtained by multiplying
the number of Optional Shares specified in such notice by a fraction the
numerator of which is the number of Optional Shares set forth opposite the names
of such Option Selling Shareholders in Schedule A hereto under the caption
"Number of Optional Shares to be Sold" and the denominator of which is the total
number of Optional Shares (subject to adjustment by CSFBC to eliminate
fractions). Such Optional Shares shall be purchased from each Option Selling
Shareholder for the account of each Underwriter in the same proportion as the
number of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Shares shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Shares or any portion thereof may be exercised
from time to time and to the extent not previously exercised may be surrendered
and terminated at any time upon notice by CSFBC to the Company and the Option
Selling Shareholders.
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Each time for the delivery of and payment for the Optional Shares,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Shares is given. The Custodian will deliver the
Optional Shares being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of the Option Selling Shareholders, at the above office of Xxxxxxx &
Xxxxx L.L.P. The certificates for the Optional Shares being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as CSFBC requests upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at
the above office of CSFBC at a reasonable time in advance of such Optional
Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to exercise the Warrants purchased from certain of the
Selling Shareholders and offer the Shares for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company and the Selling Shareholders. The
Company agrees with the several Underwriters and the Selling Shareholders that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance
with subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date of
the Initial Registration Statement. The Company will advise CSFBC
promptly of any such filing pursuant to Rule 424(b). If the Effective
Time of the Initial Registration Statement is prior to the execution
and delivery of this Agreement and an additional registration statement
is necessary to register a portion of the Shares under the Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's consent; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an 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 is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will
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make generally available to its securityholders an earnings statement
covering a period of at least 12 months beginning after the Effective
Date of the Initial Registration Statement (or, if later, the Effective
Date of the Additional Registration Statement) which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "AVAILABILITY DATE" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year, "AVAILABILITY
DATE" means the 90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (five of which will be signed and will include
all exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Shares is required to be delivered under the
Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in
each case in such quantities as CSFBC requests. The Prospectus shall be
so furnished on or prior to 3:00 P.M., New York time, on the business
day following the later of the execution and delivery of this Agreement
or the Effective Time of the Initial Registration Statement. All other
such documents shall be so furnished as soon as available. The Company
and the Selling Shareholders will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Shares
for sale under the laws of such jurisdictions as CSFBC designates and
will continue such qualifications in effect so long as required for the
distribution.
(g) During the period of three years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year,
a copy of its annual report to shareholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Securities Exchange Act of 1934 or
mailed to shareholders, and (ii) from time to time, such other
information concerning the Company as CSFBC may reasonably request.
(h) For a period of 90 days after the date of the initial public
offering of the Shares, the Company will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, or file
with the Commission a registration statement under the Act relating to,
any additional shares of its Common Stock or securities convertible
into or exchangeable or exercisable for any shares of its Common Stock,
or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of
CSFBC, except grants of employee stock options pursuant to the terms of
a plan in effect on the date hereof and issuances of Common Stock
pursuant to the exercise of such options.
(i) The Company and each Selling Shareholder agree with the
several Underwriters that the Company and such Selling Shareholder will
pay all expenses incident to the performance of the obligations of the
Company and such Selling Shareholder, as the case may be, under this
Agreement, for any filing fees and other expenses (including fees and
disbursements of counsel) in connection with qualification of the
Shares for sale under the laws of such jurisdictions as CSFBC
designates and the printing of memoranda relating thereto, for the
filing fee incident to the review by the National Association of
Securities Dealers, Inc. of the offering and sale of the Shares, for
any travel expenses of the Company's officers and employees and any
other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Shares, for any transfer
taxes on the sale by the Selling Shareholders of the Secondary Shares
and Warrants to the Underwriters and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(j) The Custodian will agree to deliver to CSFBC, attention:
Transactions Advisory Group on the Closing Date a letter stating that
they will deliver to each Selling Shareholder a United States Treasury
Department Form 1099 (or other applicable form or statement specified
by the United States Treasury Department regulations in lieu thereof)
on or before January 31 of the year following the date of this
Agreement.
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(k) Each Selling Shareholder agrees, for a period of 90 days after
the date of the initial public offering of the Shares, not to offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Common Stock of the Company or
securities convertible into or exchangeable or exercisable for any
shares of Common Stock, enter into a transaction which would have the
same effect, or enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such aforementioned
transaction is to be settled by delivery of the Common Stock or such
other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or enter
into any such transaction, swap, hedge or other arrangement, without,
in each case, the prior written consent of CSFBC.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Shares to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Shareholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Shareholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of Xxxxxx
Xxxxxxxx LLP confirming that they are independent public accountants
within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements
examined by them and included in the Registration Statements
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements
included in the Registration Statements do not comply
as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts
shown on the latest balance sheet included in the
Prospectus; or
(C) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such
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accountants there were any decreases, as compared
with the corresponding period of the previous year,
in consolidated net sales or net operating income in
the total or per share amounts of consolidated net
income;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter; and
(v) on the basis of a reading of the unaudited pro
forma financial statements included in the Registration
Statement and the Prospectus (the "pro forma financial
statements"); carrying out certain specified procedures;
inquiries of certain officials of the Company [and Coil Tubing
Services, L.L.C.] 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.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "PROSPECTUS" shall mean the prospectus
included in the Registration Statements.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFBC. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Shareholder, the Company
or the Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters including the
Representatives, is material and
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adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating); (iii) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters including the Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(d) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxx & Xxxxxx L.L.P., counsel for the Company,
to the effect that:
(i) each of the Company and its Subsidiaries has been
duly incorporated, 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
carry on its business as described in the Prospectus and to
own, lease and operate its properties;
(ii) each of the Subsidiaries is duly qualified and
is in good standing as a foreign corporation authorized to do
business in each jurisdiction set forth opposite its name on
Schedule C hereto;
(iii) all the outstanding shares of capital stock of
the Company (including all of the Secondary Shares) have been
duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar
rights;
(iv) all of the Warrants have been duly authorized
and validly issued and not subject to any preemptive or
similar rights; and all of the Warrant Shares have been duly
authorized and reserved for issuance, and when issued and
delivered to the Underwriters against payment therefor as
provided by this Agreement, will be validly issued, fully paid
and nonassessable, and the issuance of such Warrant Shares
will not be subject to any preemptive or similar rights.
(v) the Firm Shares to be issued and sold by the
Company hereunder have been duly authorized and reserved for
issuance, and when issued and delivered to the Underwriters
against payment therefor as provided by this Agreement, will
be validly issued, fully paid and non-assessable, and the
issuance of such Firm Shares will not be subject to any
preemptive or similar rights;
(vi) all of the outstanding shares of capital stock
of each of the Company's Subsidiaries have been duly
authorized and validly issued and are fully paid and
non-assessable, and except as described in the Prospectus, are
owned by the Company, directly or indirectly through one or
more Subsidiaries, free and clear of any security interest,
claim, lien, encumbrance or adverse interest of any nature;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
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(vii) the Registration Statement has become effective
under the Act, no stop order suspending its effectiveness has
been issued and no proceedings for that purpose are, to the
knowledge of such counsel, pending before or contemplated by
the Commission;
(viii) the statements under the captions
"Business--Government Regulation",
"Management--Indemnification", "Management--Employment
Agreements", "Management--Stock Option Plan" and "Description
of Capital Stock" in the Prospectus and Item 14 of Part II of
the Registration Statement, insofar as such statements
constitute a summary of the legal matters, documents or
proceedings referred to therein, are accurate in all material
respects;
(ix) the execution, delivery and performance of this
Agreement by the Company, the compliance by the Company with
all the provisions hereof and the consummation of the
transactions contemplated hereby will not (A) require any
consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency
(except such as may be required under the securities or Blue
Sky laws of the various states), (B) constitute a breach of
any of the terms or provisions of, or a default under, the
charter or by-laws of the Company or any of its Subsidiaries
or any indenture, loan agreement, mortgage, lease or other
agreement or instrument filed as an Exhibit to the
Registration Statement, (C) violate any applicable law or any
rule, regulation, judgment, order or decree of any court or
any governmental body or agency having jurisdiction over the
Company, any of its Subsidiaries or their respective property;
provided, however, that no opinion is given in this paragraph
as to the securities laws of any state or (D) result in the
suspension, termination or revocation of any Authorization of
the Company or any of its Subsidiaries or any other impairment
of the rights of the holder of any such Authorization;
(x) to such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened to which the
Company or any of its Subsidiaries is or could be a party or
to which any of their respective property is or could be
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described, or of
any contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement that are
not so described or filed as required;
(xi) the Company is not and, after giving effect to
the offering and sale of the Warrants and Shares and the
application of the proceeds thereof as described in the
Prospectus, will not be, an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended;
(xii) to such counsel's knowledge, there are no
contracts or agreements between the Company and any person
granting such person the right to require the Company to file
a registration statement under the Act with respect to any
securities of the Company or to require the Company to include
such securities with the Shares registered pursuant to the
Registration Statement, except those disclosed in the
Prospectus and as to which the Company has received waivers;
(xiii) the offer, sale and issuance of the equity
securities of the Company described in Item 15 of Part II of
the Registration Statement occurring within one year of the
date of this Agreement constitute transactions exempt from the
registration requirements of the Act; and
(xiv) the Warrants were duly authorized, executed and
delivered by the Company and constitute valid and legally
binding obligations of the Company enforceable in accordance
with their terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium and
other similar laws now or hereinafter in effect relating to or
affecting creditors' rights generally and to general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law). The sale of the Warrants to the Underwriters pursuant to
the terms of this Agreement does not violate any provision
thereof and
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upon such sale the Warrants will be fully immediately
exercisable by the Underwriters as contemplated herein.
In addition, such counsel shall state that in the course of
the preparation by the Company of the Registration Statement and the
Prospectus such counsel participated in conferences with officers and
other representatives of the Company and the Underwriters, with
representatives of counsel for the Underwriters and with
representatives of the auditors of the Company, at which conferences
the contents of the Registration Statement and the Prospectus and
related matters were discussed. Such counsel shall also state that,
although they have not undertaken to determine independently, and do
not assume any responsibility for, or express any opinion regarding,
the accuracy, completeness or fairness of the statements contained in
the Registration Statement and the Prospectus (except to the extent
specified in the foregoing opinions), based on the participation
described above (relying as to factual matters in respect of the
determination of materiality to a significant extent upon statements of
fact made to such counsel by representatives of the Company), and
subject to the next succeeding sentence, no information has come to
such counsel's attention that causes such counsel to believe that (a)
the Registration Statement, at the time it became effective, and the
Prospectus as of its date and the Closing Date, did not comply as to
form in all material respects with the Act, (b) the Registration
Statement, at the time it became effective and on the date of this
Agreement, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
therein not misleading and (c) the Prospectus, as of its Date and 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. In making the foregoing statement, such
counsel may state that they do not express any comment or belief with
respect to the financial statements, the notes thereto or the other
financial and related statistical data contained in the Registration
Statement or the Prospectus.
Because not all of the United States legal concepts to be
addressed in the opinions set forth in paragraphs 6(d)(i), 6(d)(ii),
6(d)(vi), 6(d)(ix) and 6(d)(x) above are not identical to those of the
United Kingdom and the Kingdom of Norway, certain parts of such opinion
may be qualified with respect the Pathfinder Energy Services Limited
and Pathfinder Energy Services AS.
The opinion of Xxxxxx & Xxxxxx L.L.P. described in Section
6(d) above shall be rendered to you at the request of the Company and
shall so state therein.
(e) The Representatives shall have received an opinion from
each Selling Shareholder who executes and delivers a Power of Attorney,
as contemplated therein.
(f) The Representatives and received an opinion, dated such
Closing Date, of Xxxxx Xxxxx & Xxxxx on behalf of the Jordan Funds, [of
internal counsel] on behalf of DLJ Merchant Banking Partners II, L.P.
and its affiliated funds listed on Schedule A hereto (the "DLJMB
Funds") and [Xxxxxx & Xxxxxx L.L.P.] on behalf of each of the other
Selling Shareholders, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered or on behalf of each Selling Shareholder;
(ii) such Selling Shareholder is the record owner of the
Secondary Shares to be sold by such Selling Shareholder
pursuant to this Agreement and has good and indefeasible title
to such Secondary Shares, free of all restrictions on
transfer, liens, encumbrances, security interests, equities
and claims whatsoever;
(iii) in the case of each Selling Shareholder selling
Warrants, such Selling Shareholder is the record owner of the
Warrants to be sold by such Selling Shareholder pursuant to
this Agreement and has good and indefeasible title to such
Warrants, free of all restrictions on transfer, liens,
encumbrances, security interests, equities and claims
whatsoever;
16
17
(iii) such Selling Shareholder has full legal right, power and
authority, and all authorization and approval required by law,
to enter into this Agreement, the Power of Attorney and the
Custody Agreement and to sell, assign, transfer and deliver
the Secondary Shares or Warrants, as the case may be, to be
sold by such Selling Shareholder in the manner provided herein
and therein;
(iv) each of the Power of Attorney and Custody Agreement of
such Selling Shareholder has been duly authorized, executed
and delivered by such Selling Shareholder and is a valid and
binding agreements of such Selling Shareholder, enforceable in
accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws mow or hereinafter in effect
relating to or affecting creditors' rights generally and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and except as to the enforceability of the
indemnification provisions contained therein to the extent
they conflict with applicable law;
(v) upon delivery of and payment for the Secondary Shares or
Warrants, as the case may be, to be sold by each Selling
Shareholder pursuant to this Agreement, each of the
Underwriters shall acquire a security entitlement (as that
term is defined in the Uniform Commercial Code in effect in
the State of New York (the "NYUCC")), with respect to such
Secondary Shares or Warrants, as the case may be, free of any
adverse claim (as that term is defined under the NYUCC),
provided that each of the Underwriters does not have notice of
any adverse claim (within the meaning of Section 8-105 of the
NYUCC); and
(vi) the execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement of
such Selling Shareholder by such Selling Shareholder, the
compliance by such Selling Shareholder with all the provisions
hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (A) require any
consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency
(except such as may be required under the securities or Blue
Sky laws of the various states), (B) conflict with or
constitute a breach of any of the terms or provisions of, or a
default under, the organizational documents of such Selling
Shareholder, (C) conflict with or constitute a breach of any
of the terms or provisions of, or a default under, any
indenture, loan agreement, mortgage, lease or other agreement
or instrument (including, without limitation, the Warrants) to
which such Selling Shareholder is a party or by which any
property of such Selling Shareholder is bound or (D) violate
or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental
body or agency having jurisdiction over such Selling
Shareholder or any property of such Selling Shareholder,
except with respect to clauses (A), (C) and (D) above as would
not have a material adverse effect on such Selling
Shareholder's performance of its obligations hereunder.
The opinions of counsel for the Selling Shareholders described
in Section 6(e) above shall be rendered to you at the request of the
Company and the Selling Shareholders and shall so state therein.
(g) The Representatives shall have received from Xxxxxxx &
Xxxxx L.L.P., counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Shares delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as
the Representatives may require, and the Selling Shareholders 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.
(h) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no
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proceedings for that purpose have been instituted or are contemplated
by the Commission; the Additional Registration Statement (if any)
satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b)
was filed pursuant to Rule 462(b), including payment of the applicable
filing fee in accordance with Rule 111(a) or (b) under the Act, prior
to the time the Prospectus was printed and distributed to any
Underwriter; and, subsequent to the dateof the most recent financial
statements in the Prospectus, there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(i) The Representatives shall have received a letter, dated
such Closing Date, of Xxxxxx Xxxxxxxx LLP which meets the requirements
of subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three days
prior to such Closing Date for the purposes of this subsection.
(j) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters from each of
executive officers and directors of the Company who are not Selling
Shareholders and each of the individuals or entities, as the case may
be, listed on Schedule D hereto.
The Selling Shareholders and the Company will furnish the
Representatives with such conformed copies of such opinions, certificates,
letters and documents as the Representatives reasonably request. CSFBC may in
its sole discretion waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters hereunder, whether in respect
of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act 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 any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, 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 will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that 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 an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (c) below; provided, however that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary prospectus the indemnity agreement contained in this subsection
(a) shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased the Shares
concerned, to the extent that a prospectus relating to such Shares was required
to be delivered by such Underwriter under the Act in connection with such
purchase and any such loss, claim, damage or liability of such Underwriter
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Shares to such person, a
copy of the Prospectus if the Company had previously furnished copies thereof to
such Underwriter.
(b) The Selling Shareholders, jointly and severally, will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person who controls such Underwriter within the meaning of Section 15 of the
Act, to the same extent as the foregoing indemnity in paragraph (a) above,
provided, however, that, the Selling Shareholders shall only be subject to such
liability to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission is based upon information provided by such Selling
Shareholder or contained in a representation or warranty given by such Selling
Stockholder in this Agreement or the Custody Agreement. Notwithstanding the
foregoing, the aggregate liability of each of the Selling Shareholders pursuant
to this Section 7 shall be limited to an amount equal to the total proceeds
(before deducting
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underwriting discounts and commissions and expenses) received by such Selling
Shareholder from the Underwriters for the sale of the Secondary Shares or
Warrants, as the case may be, sold by such Selling Shareholder hereunder.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Shareholder and each person, if any, who controls such Selling
Shareholder within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities to which the Company or such Selling Shareholder
may become subject, under the Act 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 any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Shareholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of (i) the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the paragraph under the caption
"Underwriting" and the information contained in the [and ] paragraph[s] under
the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such (i) settlement includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Shareholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Shareholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Shareholders bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Shareholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or
19
20
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (e). Notwithstanding
the provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Shareholders under
this Section shall be in addition to any liability which the Company and the
Selling Shareholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter (as
hereinafter defined) within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed a Registration Statement, to each person, if any, who controls
the Company within the meaning of the Act, to each Selling Shareholder and to
each person, if any, who controls such Selling Shareholder.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date, CSFBC may make
arrangements satisfactory to the Company and the Selling Shareholders for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total number of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC, the
Company and the Selling Shareholders for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Shareholders, except as provided in Section 9
(provided that if such default occurs with respect to Optional Shares after the
First Closing Date, this Agreement will not terminate as to the Firm Securities
or any Optional Shares purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Shareholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Shareholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Shareholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Shareholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv) or (v) of Section 6(c), the Company and the Selling
Shareholders will, jointly and severally, reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Shares.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed,
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delivered or telegraphed and confirmed to the Representatives c/o Credit Suisse
First Boston Corporation, Eleven Madison Avenue, New York, N.Y. 10010-3629,
Attention: Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at W-H Energy Services,
Inc., 00000 Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxxxx X.
Xxxxxx, or, if sent to the Selling Shareholders or any of them, will be mailed,
delivered or telegraphed and confirmed to the address listed above such Selling
Shareholder's name on Schedule A hereto; provided, however, that any notice to
an Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters. The Jordan Funds will act in
their own behalf. The Attorneys-in-Fact for the other Selling Shareholders will
act in connection with such transactions, and any action under or in respect of
this Agreement taken by either of the Attorneys-in-Fact will be binding upon all
such other Selling Shareholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company and each of the Selling Shareholders hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
21
22
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Shareholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
W-H ENERGY SERVICES, INC.
By
-------------------------------------------
W-H INVESTMENT, L.P.
W-H INVESTMENT II, G.P.
By
-------------------------------------------
DLJ Merchant Banking Partners II, L.P.
DLJ Merchant Banking Partners II-A, L.P.
DLJ Offshore Partners II, C.V.
DLJ Diversified Partners, L.P.
DLJ Diversified Partners-A, L.P.
DLJMB Funding II, Inc.
DLJ Millennium Partners, L.P.
DLJ Millennium Partners-A, L.P.
DLJ EAB Partners, L.P.
UK Investment Plan 1997 Partners
DLJ ESC II L.P.
DLJ First ESC L.P.
Xxxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxxx, III
Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxx, Xx.
[Xxxxxx Family Trust]
Xxxxx Xxxxxx Xxxx
Xxxx Xxxxxx Xxxx
Xxxxxx X. Xxxx, Xx.
Xxxxxxx X. Xxxxx
Xxxxxx Xxxxx
X. Xxxxxxx Xxxxx
By: [XXXXXXX X. XXXXX, XX./XXXXXXX X. XXXXXX]
as Attorney-in-Fact
By:
-------------------------------------------
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The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK ALEX. XXXXX
UBS WARBURG
XXXXXXX & COMPANY INTERNATIONAL,
Acting on behalf of themselves and as theRepresentatives
of the several Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
--------------------------------------
[Insert title]
23
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SCHEDULE A
EXERCISE
NUMBER OF FIRM NUMBER OF PRICE OF NUMBER OF
SECONDARY SHARES WARRANTS WARRANTS TO OPTIONAL SHARES
SELLING SHAREHOLDER TO BE SOLD TO BE SOLD BE SOLD TO BE SOLD
------------------- ---------- ---------- ------- ----------
Jordan Funds
c/o The Jordan Company LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx
1. W-H Investment, L.P. 858,001 623,906 361,215
2. W-H Investment II, G.P. 858,001 623,906 361,215
DLJMB Funds
c/o [W-H Energy Services, Inc.
00000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx]
3. DLJ Merchant Banking Partners II, L.P. [1,036,186] -- [252,570]
4. DLJ Merchant Banking Partners II-A, L.P.
5. DLJ Offshore Partners II, C.V.
6. DLJ Diversified Partners, L.P.
7. DLJ Diversified Partners-A, L.P.
8. DLJMB Funding II, Inc.
9. DLJ Millennium Partners, L.P.
10. DLJ Millennium Partners-A, X.X.
00. XXX EAB Partners, L.P.
12. UK Investment Plan 1997 Partners
13. DLJ ESC II X.X.
00. XXX First ESC L.P.
Other Selling Shareholders
c/o [W-H Energy Services, Inc.
00000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx]
15. Xxxxxxx X. Xxxxx, Xx. -- 155,718 --
16. Xxxxxxx X. Xxxxxx, III -- 74,250 --
17. Xxxxxx X. Xxxxxxx, Xx. -- 24,750
18. Xxxxxx X. Xxxxxxx -- 57,750 --
19. Xxxx X. Xxxxxx, Xx. -- 41,250 --
20. [Xxxxxx Family Trust] -- 113,003 --
21. Xxxxx Xxxxxx Xxxx -- 85,333 --
22. Xxxx Xxxxxx Bull -- 85,333 --
23. Xxxxxx X. Xxxx, Xx. -- 49,500 --
24. Xxxxxxx X. Xxxxx -- 45,788 --
25. Xxxxxx Xxxxx -- 14,850 --
26. X. Xxxxxxx Xxxxx -- 2,475 --
---------- --------- -------
[2,752,188] 1,997,812 975,000
========== ========= =======
X-0
00
XXXXXXXX X
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston Corporation.......................................
Deutsche Bank Alex. Xxxxx Inc................................................
UBS Warburg LLC..............................................................
Xxxxxxx & Company International..............................................
---------
6,500,000
=========
B-1
26
SCHEDULE C
W-H ENERGY SERVICES, INC.
AND ITS SUBSIDIARIES
JURISDICTION OF FOREIGN JURISDICTIONS IN
NAME INCORPORATION WHICH QUALIFIED
---- ------------- ---------------
1. W-H Energy Services, Inc. Texas none
2. Agri-Empresa, Inc. Texas New Mexico
3. Agri-Empresa Transportation, Inc. Texas none
4. Xxxxxxx Xxxxxxx, Inc. Louisiana none
5. Coil Tubing Services LLC [ ] [ ]
6. Diamond Wireline Services, Inc. Texas None
7. Drill Motor Services, Inc. Louisiana Oklahoma
8. Dyna Drill Technologies, Inc. Texas None
9. Grinding and Sizing Company, Inc. Texas None
10. Integrity Industries, Inc. Texas Louisiana
11. Pathfinder Energy Services, Inc. Louisiana Texas
12. Pathfinder Energy Services Limited England None
13. Pathfinder Energy Services AS Xxxxxx Xxxx
00. Perf-O-Log, Inc. Texas Louisiana
15. STG Transportation, Inc. Texas None
16. Xxxxxx Energy Services, Inc. Louisiana Texas
Alabama;
17. Well Safe, Inc. Texas Louisiana
18. W-H Drilling Solutions, Inc. Texas None
C-1
27
SCHEDULE D
Individuals
Xxxxxxxx, Xxxx
Xxxxxx, Jr.,Xxxxxxx Xxx
Xxxxxxx Xxxxxxx
Xxxxx, Xxxxx X.
Xxxxxxx, Xxxxx
Xxxxxxxx, Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx X.
Xxxxxxx, Xxxx
Xxxxxxxx, Xxxx X.
Xxxxxxx, Xxxxxx Xxxxxxx
Entities
[Invesco English and International Trust]
North Atlantic Smaller Companies Trust
PSD Operating L.P.
RBSI Custody Bank Limited
Xxxxxx Management Corporation
D-2
