EXHIBIT 1.1
7,000,000 SHARES
OIL STATES INTERNATIONAL, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
February 13, 2003
CREDIT SUISSE FIRST BOSTON LLC
XXXXXXX, XXXXX & CO.,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. SCF-III, L.P., a Delaware limited partnership
("SCF-III"), and SCF-IV, L.P., a Delaware limited partnership ("SCF-IV," and
together with SCF-III, the "SELLING STOCKHOLDERS"), propose to sell 7,000,000
shares ("FIRM SECURITIES") of the common stock, par value $.01 per share
("SECURITIES"), of Oil States International, Inc., a Delaware corporation
("COMPANY"), and also propose to sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 1,050,000 additional shares
("OPTIONAL SECURITIES") of Securities as set forth below. The Firm Securities
and the Optional Securities are herein collectively called the "OFFERED
SECURITIES". Each of the Selling Stockholders and the Company hereby agrees with
the several Underwriters named in Schedule A hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders.
(a) Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(i) A registration statement (No. 333-88674), including a
prospectus, relating to the Offered Securities ("INITIAL REGISTRATION
STATEMENT") has been filed with the Securities and Exchange Commission
("COMMISSION") and has become effective under the Securities Act of
1933 ("ACT"). An additional registration statement ("ADDITIONAL
REGISTRATION STATEMENT") relating to the Offered Securities (a) may
have been filed with the 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) 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. 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 the date and time as of which
such registration statement was declared effective by the Commission or
has become effective upon filing pursuant to Rule 462(b). 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 the time of
this Agreement, including all material incorporated by reference
therein and 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, 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, is hereinafter referred to
as the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration
Statement and the Additional Registration Statement are herein referred
to collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION STATEMENT". The prospectus included in the Initial
Registration Statement, as supplemented to reflect the terms of the
offering of the Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under
the Act, including all material incorporated by reference therein, 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) On the Effective Date of the Initial Registration
Statement, the Initial Registration Statement conformed in all material
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. On the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed,
or will conform, in all material 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. On the date
of this Agreement, the Initial Registration Statement conforms and, if
the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b), each Registration Statement and the
Prospectus will conform, in all material 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,
except that the foregoing does not apply to statements in or omissions
from a Registration Statement or the Prospectus based upon written
information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by or on
behalf of any Underwriter consists of the information described as such
in Section 7(c) hereof. The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects with
the requirements of the Act or the Securities Exchange Act of 1934
("EXCHANGE ACT"), as applicable, and the Rules and Regulations.
(iii) Each firm of accountants who certified financial
statements and supporting schedules included in each Registration
Statement and the Prospectus is (or, in the case of Xxxxxx Xxxxxxxx
LLP, was at the date of the issuance of their report thereon included
in each Registration Statement and the Prospectus) an independent
public accountant as required by the Act and the Rules and Regulations.
(iv) The historical financial statements of the Company and
its subsidiaries included in each Registration Statement and the
Prospectus, together with the related schedules and notes, present
fairly the financial position of the Company and its subsidiaries, at
the dates indicated, and the statements of operations, stockholders'
equity and cash flows of the Company and its subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States ("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in each
Registration Statement and the Prospectus present fairly in accordance
with GAAP the information required to be stated therein. The pro forma
financial statements and the related notes thereto included in each
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
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therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. The
selected historical and pro forma financial information and the summary
historical and pro forma financial information included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited and pro forma
financial statements included in each Registration Statement and the
Prospectus.
(v) Since the respective dates as of which information is
given in each Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "MATERIAL ADVERSE EFFECT"), (B) there have been
no transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(vi) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing could not,
singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(vii) Each of the Company's subsidiaries has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or to be in
good standing could not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect; except as otherwise
disclosed in each Registration Statement and the Prospectus, all of the
issued and outstanding capital stock of each subsidiary of the Company
has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any subsidiary of the Company was issued in
violation of the preemptive or similar rights of any securityholder of
such subsidiary.
(viii) The authorized capital stock and outstanding preferred
stock of the Company are as set forth in the Prospectus under the
caption "Description of Capital Stock" and the outstanding common stock
of the Company is as set forth in the Prospectus under the caption
"Prospectus Supplement Summary - The Offering" (except for subsequent
issuances, if any, pursuant to employee benefit plans referred to in
the Prospectus or pursuant to the exercise of exchangeable securities
or options referred to in the Prospectus). The shares of issued and
outstanding capital stock of the Company, including the Offered
Securities, have been duly authorized and validly issued by the Company
and are fully paid and non-assessable; none of the outstanding shares
of capital stock of the Company, including the Offered Securities, was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company that have not been irrevocably waived by
valid, binding and enforceable waivers.
(ix) This Agreement has been duly authorized, executed and
delivered by the Company.
(x) The Securities conform to all statements relating thereto
contained in the Prospectus and such description conforms to the rights
set forth in the instruments defining the same; no holder of the
Offered Securities will be subject to personal liability by reason of
being such a holder; and the sale by the
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Selling Stockholders of the Offered Securities is not subject to the
preemptive or, to the knowledge of the Company, other similar rights of
any securityholder of the Company.
(xi) Neither the Company nor any of its subsidiaries is (1) in
violation of its charter, by-laws or other organizational instrument or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject
(collectively, "AGREEMENTS AND INSTRUMENTS"), except for such defaults
that could not, singly or in the aggregate, reasonably be expected to
result in a Material Adverse Effect or (2) in violation of any law,
ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject or has failed to obtain any
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or
assets or to the conduct of its business, except for such violations or
failures that could not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated in this Agreement and in the Registration
Statements and the Prospectus (including the sale of the Offered
Securities by the Selling Stockholders) and compliance by the Company
with its obligations under this Agreement have been duly authorized by
all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to the Agreements and Instruments (except
for such conflicts, breaches, defaults, Repayment Events or liens,
charges or encumbrances that could not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect), nor
will such action result in any violation of (A) the provisions of the
charter, by-laws or other organizational instrument of the Company or
any of its subsidiaries or (B) any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations, except, in the case of clause
(B), for violations that could not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. As used
herein, a "REPAYMENT EVENT" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(xii) No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of the principal suppliers,
manufacturers, customers or contractors of the Company or any of its
subsidiaries, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xiii) There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body now pending or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its subsidiaries, which is
required to be disclosed in each Registration Statement and the
Prospectus (other than as disclosed therein), or which might reasonably
be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder; the aggregate
of all pending legal or governmental proceedings to which the Company
or its subsidiaries is a party or of which property or assets is the
subject which are not described in the Registration Statements and the
Prospectus, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiv) There are no contracts or documents which are required
to be described in a Registration Statement, the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
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(xv) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, trademark registrations, service
marks, service xxxx registrations, trade names or other intellectual
property (collectively, "INTELLECTUAL PROPERTY") necessary to carry on
the business now operated by them, except where the failure so to own
or possess could not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, and neither the
Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company and its subsidiaries
therein, and which infringement or conflict or invalidity or inadequacy
could, singly or in the aggregate, reasonably be expected to result in
a Material Adverse Effect.
(xvi) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority, agency or body is necessary or required for the
performance by the Company of its obligations hereunder, in connection
with the offering or sale of the Offered Securities under this
Agreement or the consummation of the transactions contemplated by this
Agreement, except such as have been already obtained or as may be
required under the Act or the Rules and Regulations and foreign or
state securities or blue sky laws.
(xvii) The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"GOVERNMENTAL LICENSES") issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, and the Company and its subsidiaries are
in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to possess or to comply could
not, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect; all of the Governmental Licenses held by the
Company or any of its subsidiaries are valid and in full force and
effect, except where the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and
effect could not, singly or in the aggregate, reasonably be expected to
have a Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) The Company and its subsidiaries have good and
marketable title to all material real property owned by them and good
title to all other material properties owned by them, in each case free
and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are
described in the Prospectus or (b) do not 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 where such effect
or interference, singly or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect; and all of the leases
and subleases to which the Company or any of its subsidiaries is a
party and under which the Company or any of its subsidiaries hold
properties described in the Prospectus are in full force and effect,
and neither the Company nor any of its subsidiaries has received any
notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or its subsidiaries under
any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or any such subsidiary to the
continued possession of the leased or subleased premises under any such
lease or sublease, except where the failure to be in such full force or
effect, or where such claim, could not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(xix) Neither the Company nor any of its subsidiaries is, and
upon the sale of the Offered Securities as herein contemplated, none of
them will be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "1940 ACT").
(xx) Except as described in each Registration Statement and
the Prospectus and except as could not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, (A)
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neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "HAZARDOUS MATERIALS") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "ENVIRONMENTAL
LAWS"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its subsidiaries, and (D) there are
no events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(xxi) Except as disclosed in each Registration Statement and
the Prospectus, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to either
Registration Statement or otherwise registered by the Company under the
Act. With respect to each Registration Statement and offering of
Offered Securities contemplated thereby, all such registration and
similar rights have been irrevocably waived by the holders thereof and
any such waivers are valid, binding and enforceable against such
holders. The Selling Stockholders are entitled to offer and sell all
the Offered Securities pursuant to each Registration Statement and the
Prospectus.
(xxii) No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the
directors, officers, shareholders, customers or suppliers of the
Company or any of its subsidiaries, on the other hand, which is
required to be described in the Prospectus which is not so described.
(xxiii) The Company and its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
industries in which the Company and its subsidiaries operate; the
Company has no reason to believe that it or any of its subsidiaries
will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its operations, except where
the failure to renew or maintain such coverage could not, singly or in
the aggregate, reasonably be expected to result in a Material Adverse
Effect. The officers and directors of the Company are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as the Company believes are prudent and
customary for officers' and directors' liability insurance of a public
company and as the Company believes could cover any claims which could
reasonably be expected to be made in connection with the offering and
sale of the Offered Securities; and the Company has no reason to
believe that it will not be able to renew its existing directors' and
officers' liability insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to cover its officers and directors.
(xxiv) The Company and each of its subsidiaries has timely
filed all federal, state, local and foreign tax returns that are
required to be filed or has duly requested extensions thereof and all
such tax returns are true, correct and complete, except to the extent
that any failure to file or request an extension or any failure to be
correct and complete could not, singly or in the aggregate, reasonably
be expected to result in a Material Adverse Effect. The Company and
each of its subsidiaries has timely paid all taxes shown as due on such
filed tax returns (including any related assessments, fines or
penalties), except to the extent that any such taxes are being
contested in good faith and by appropriate proceedings, or to the
extent that any failure to pay could not reasonably be expected to
result in a Material Adverse Effect.
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(xxv) The statistical and market-related data included in the
Prospectus are derived from sources which the Company reasonably and in
good faith believes to be accurate, reasonable and reliable, and the
Company agrees, or has no reason to disagree, with the sources from
which such data were derived.
(xxvi) The Company and each of its subsidiaries have
established a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions were, are and will
be executed in accordance with management's general or specific
authorization; (ii) transactions were, are and will be recorded as
necessary to permit preparation of financial statements in conformity
with GAAP and to maintain accountability for assets; (iii) access to
assets was, is and will be permitted only in accordance with
management's general or specific authorizations; and (iv) the recorded
accountability for assets was, is and will be compared with existing
assets at reasonable intervals and appropriate action was, is and will
be taken with respect to any differences.
(xxvii) The Offered Securities have been listed on the New
York Stock Exchange.
(xxviii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the offering of the Offered Securities.
(xxix) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Exchange Act and files
reports with the Commission on the Electronic Data Gathering, Analysis,
and Retrieval (XXXXX) system.
(b) Representations and Warranties of the Selling Stockholders. Each
Selling Stockholder represents and warrants to, and agrees with, the several
Underwriters that:
(i) Such Selling Stockholder has reviewed and is familiar with
each Registration Statement and the Prospectus and, with respect to
information furnished in writing by or on behalf of such Selling
Stockholder for use therein (it being understood and agreed that the
only such information furnished by or on behalf of any Selling
Stockholder consists of the information described as such in Section
7(b) hereof), at the time of the filing the Prospectus pursuant to Rule
424(b), neither any Registration Statement nor the Prospectus contains
or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary in order to make the
statements therein not misleading.
(ii) Such Selling Stockholder has the full legal right, power
and authority to enter into this Agreement and a Custody Agreement
("CUSTODY AGREEMENT") appointing Mellon Investor Services LLC, as
custodian (the "CUSTODIAN"), and to sell, transfer and deliver the
Offered Securities to be sold by such Selling Stockholder hereunder.
The execution and delivery of this Agreement and the Custody Agreement,
the sale and delivery of the Offered Securities to be sold by such
Selling Stockholder and the consummation of the transactions
contemplated herein and therein and compliance by such Selling
Stockholder with its obligations hereunder and thereunder have been
duly authorized by such Selling Stockholder and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Offered Securities to be sold by such Selling
Stockholder or any property or assets of such Selling Stockholder
pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, license, lease or other agreement or instrument
to which such Selling Stockholder is a party or by which such Selling
Stockholder may be bound, or to which any of the property or assets of
such Selling Stockholder is subject (but only to the extent that any
such conflict, breach, default, tax, lien, charge or encumbrance
adversely affects the ability of such Selling Stockholder to deliver
good and marketable title to the Offered Securities to be sold by the
Selling Stockholder hereunder), nor will such action result in any
violation of the provisions of the charter or by-laws or other
organizational instrument of such Selling Stockholder, if applicable,
or any applicable treaty, law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court having jurisdiction over such Selling Stockholder or any of its
properties.
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(iii) Such Selling Stockholder has, and immediately prior to
each Closing Date (as defined in Section 3) will have, good and
marketable title to the Offered Securities to be sold by such Selling
Stockholder hereunder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind, other than pursuant to this Agreement; and upon delivery of such
Offered Securities and payment of the purchase price therefor as herein
contemplated, assuming the Underwriters have no notice of any adverse
claim, each of the several Underwriters will receive good and
marketable title to the Offered Securities purchased by it from such
Selling Stockholder, free and clear of any security interest, mortgage,
pledge, lien, charge, claim, equity or encumbrance of any kind.
(iv) Such Selling Stockholder has duly executed and delivered
the Custody Agreement in the form heretofore furnished to the
Underwriters, and the Custodian is authorized to deliver the Offered
Securities to be sold by such Selling Stockholder hereunder.
(v) Such Selling Stockholder has not taken, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Offered Securities.
(vi) No filing with, or consent, approval, authorization,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or
required for the performance by such Selling Stockholder of its
obligations hereunder or in the Custody Agreement, or in connection
with the offer, sale and delivery of the Offered Securities by such
Selling Stockholder hereunder or the consummation by such Selling
Stockholder of the transactions contemplated by this Agreement, except
such as may have previously been made or obtained or as may be required
under the Act, Section 16 of the Exchange Act or the Rules and
Regulations or state securities laws.
(vii) Such Selling Stockholder has irrevocably placed in
custody with the Custodian certificates, in suitable form for transfer
by delivery or accompanied by duly executed instruments of transfer or
assignment in blank with signatures guaranteed, for all of the Offered
Securities to be sold by such Selling Stockholder pursuant to this
Agreement, with irrevocable conditional instructions to deliver such
Offered Securities to the Underwriters pursuant to this Agreement.
(viii) Except as set forth in an annex to the Custody
Agreement, neither such Selling Stockholder nor any of its affiliates
directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, Section (ee) of the
By-laws of the National Association of Securities Dealers, Inc. (the
"NASD")), any member firm of the NASD.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to the Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from each Selling Stockholder, at
a purchase price of $10.422 per share, the number of Firm Securities set forth
below the name of such Selling Stockholder and opposite the name of such
Underwriter in Schedule A hereto.
Certificates in negotiable form for the Offered Securities have been
placed in custody, for delivery under this Agreement, under Custody Agreements
made with the Custodian. Each Selling Stockholder agrees that the shares
represented by the certificates held in custody for the Selling Stockholders
under such Custody Agreements are subject to the interests of the Underwriters
hereunder, that the arrangements made by the Selling Stockholders for such
custody are to that extent irrevocable, and that the obligations of the Selling
Stockholders hereunder shall not be terminated by operation of law.
The Custodian will deliver the Firm Securities to the Representatives
for the accounts of the Underwriters, at the office of Xxxxx Xxxxx L.L.P., 000
Xxxxxxxxx, Xxxxxxx, Xxxxx 00000, 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 CSFB drawn to the order of the appropriate
Selling Stockholder at the office of Xxxxx Xxxxx L.L.P., at 9:00 A.M.,
8
New York time, on February 20, 2003, or at such other time not later than seven
full business days thereafter as CSFB, the Company and the Selling Stockholders
determine, such time being herein referred to as the "FIRST CLOSING DATE". The
certificates for the Firm Securities so to be delivered will be in definitive
form, in such denominations and registered in such names as CSFB requests and
will be made available for checking and packaging at the above office of Xxxxx
Xxxxx L.L.P. at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFB given to the Company and the
Selling Stockholders 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 Securities at the purchase price per Security to be paid for the
Firm Securities. The Selling Stockholders agree, severally and not jointly, to
sell to the Underwriters the respective numbers of Optional Securities obtained
by multiplying the number of Optional Securities specified in such notice by a
fraction the numerator of which is 5,013,952 and 1,986,048 in the case of
SCF-III and SCF-IV, respectively, and the denominator of which is the total
number of Optional Securities (subject to adjustment by CSFB to eliminate
fractions). Such Optional Securities shall be purchased from each Selling
Stockholder 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 CSFB 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 Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities 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 CSFB to the Company and
the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
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 CSFB
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Custodian will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, at the offices of
Xxxxx Xxxxx L.L.P., 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, or such other
place as shall be agreed upon by the Representatives, the Company and the
Selling Stockholders, 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 CSFB drawn to the order of the appropriate Selling
Stockholder, at the above office of Xxxxx Xxxxx L.L.P. The certificates for the
Optional Securities being purchased on each Optional Closing Date will be in
definitive form, in such denominations and registered in such names as CSFB
requests upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the above office of the Custodian
at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders.
(a) The Company agrees with the several Underwriters and the Selling
Stockholders that:
(i) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by CSFB, subparagraph (5)) not later than the
second business day following the execution and delivery of this
Agreement. The Company will advise CSFB promptly of any such filing
pursuant to Rule 424(b). If an additional registration statement is
necessary to register a portion of the Offered Securities under the Act
but the Effective Time thereof has not occurred as of the execution and
delivery of this Agreement, the Company will file the additional
registration statement 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
CSFB.
9
(ii) The Company will advise CSFB 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 afford CSFB a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company
will also advise CSFB promptly of the effectiveness of any Additional
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of a Registration Statement or of any
part thereof 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.
(iii) If, at any time when a prospectus relating to the
Offered Securities 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 promptly will notify CSFB 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 CSFB'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 hereof.
(iv) As soon as practicable, but not later than 16 months,
after the date of this Agreement, the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (A) the
Effective Date of the Initial Registration Statement, (B) the Effective
Date of any Additional Registration Statement and (C) the date of the
Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of this Agreement, which will satisfy the
provisions of Section 11(a) of the Act.
(v) The Company will furnish to the Representatives copies of
each Registration Statement in the form it became effective (three of
which will be signed and will include all exhibits) and of all
amendments thereto, any related preliminary prospectus, any related
preliminary prospectus supplement, and, so long as a prospectus
relating to the Offered Securities 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 CSFB requests. The Prospectus shall be
so furnished on or prior to 3:00 P.M., New York time, on the business
day following the execution and delivery of this Agreement. All other
documents shall be so furnished as soon as available.
(vi) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFB designates and will continue such qualifications in effect so long
as required for the distribution.
(vii) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, for any filing
fees and other expenses (including fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as CSFB designates and the
printing of memoranda relating thereto, for the filing fee incident to
the review by the NASD of the Offered Securities, for any food and
lodging 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 Offered Securities and for
expenses incurred in distributing preliminary prospectuses, preliminary
prospectus supplements and the Prospectus (including any amendments and
supplements thereto) to the Underwriters.
10
(viii) For a period of 90 days after the date of the initial
public offering of the Offered Securities, 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 Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFB, except for (i) issuances of any Securities or
grants of options to purchase Securities or other Securities-based
awards pursuant to the 2001 Equity Participation Plan or Deferred
Compensation Plan referred to in the Prospectus or (ii) issuances of
Securities upon the retraction or other exchange of the exchangeable
shares issued by PTI Holdco Inc., a Canadian subsidiary of the Company,
outstanding on the date hereof.
(b) Each Selling Stockholder agrees with the several Underwriters and
the Company that:
(i) Such Selling Stockholder will pay all expenses incident to
the performance of its obligations under this Agreement, including (A)
any stock or other transfer taxes and any stamp or other duties payable
upon the sale of the Offered Securities sold by such Selling
Stockholder to the Underwriters and (B) the fees and disbursements of
its counsel and advisors, if any (except to the extent that the Company
has agreed to pay such fees and disbursements).
(ii) Such Selling Stockholder will not take, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Offered Securities.
(iii) For a period of 90 days after the date hereof, such
Selling Stockholder will not (A) offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, any Securities or
securities convertible into or exchangeable or exercisable for any
Securities, 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
Securities, whether any such aforementioned transaction is to be
settled by delivery of the Securities or such other securities, in cash
or otherwise, or publicly disclose the intention to make any such
offer, sale, pledge or disposition, or to enter into any such
transaction, swap, hedge or other arrangement or (B) make any demand
for, or exercise any right with respect to, the registration of any
Securities or any security convertible into or exercisable or
exchangeable for the Securities, without, in each case, the prior
written consent of CSFB. The foregoing sentence shall not apply to the
Offered Securities to be sold hereunder.
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 Securities 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 Stockholders 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
Stockholders of their respective obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the date of this Agreement, the Representatives
shall have received a letter, dated the date of delivery thereof, of Ernst &
Young 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 and any
schedules and any summary of earnings examined by them and included in
the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
Rules and Regulations;
11
(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 any 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 Prospectus 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 the
such letter, there was any change in the capital stock or any
increase in long-term debt, including capital leases and the
current maturities thereof, or short-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 current assets or
stockholders' equity, 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 accountants there were any decreases, as compared with
the corresponding period of the previous year and with the
period of corresponding length ended the date of the latest
income statement included in the Prospectus, in consolidated
revenues or operating income, or in the total or per share
amount of consolidated income from continuing operations
before extraordinary items or 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;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Prospectus (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) the pro forma financial statements, together with related
notes, included in the Registration Statements and the Prospectus have
been prepared consistent with the historical statements, except for the
pro forma adjustments specified therein, and give effect to assumptions
made on a reasonable basis and present fairly the historical
transactions disclosed therein, and nothing came to their attention
that caused them to believe that the pro forma financial information
included in the Registration Statements and the Prospectus does not
comply as to form in all material respects with the accounting
requirements of the Act and the related published Rules and Regulations
or has not been properly compiled and that the pro forma adjustments
have not been properly applied to the historical amounts in the
compilation of those statements.
12
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(b) On or prior to the date of this Agreement, the Representatives
shall have received a letter, dated the date of delivery thereof, of
PricewaterhouseCoopers 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 audited by them
included in the Prospectus comply as to form in all material respects
with the published accounting requirements of the Act and the related
Rules and Regulations; and
(ii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Prospectus (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.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(c) 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 CSFB. The Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section 5(a) of
this Agreement. No stop order suspending the effectiveness of a Registration
Statement or of any part thereof shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the Company, any
Selling Stockholder or any Underwriter, shall be contemplated by the Commission.
(d) 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 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 change in U.S.
or international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of a majority in
interest of the Underwriters including the Representatives, be likely to
prejudice materially the success of the proposed issue, sale or distribution of
the Offered Securities, whether in the primary market or in respect of dealings
in the secondary market; (iv) 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;
(v) any banking moratorium declared by U.S. Federal or New York authorities;
(vi) any major disruption of settlements of securities or clearance services in
the United States or (vii) any attack on, outbreak or escalation of hostilities
or act of terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency if, in the
13
judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such attack, outbreak, escalation, act,
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.
(e) 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) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware;
(ii) The Company has all requisite corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement;
(iii) The Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction set
forth on Annex B to such opinion;
(iv) The authorized capital stock and outstanding preferred
stock of the Company are as described in the Prospectus in the first
paragraph under the caption "Description of Capital Stock" and the
outstanding common stock of the Company is as set forth in the
Prospectus under the caption "Prospectus Supplement Summary - The
Offering" (except for subsequent issuances, if any, pursuant to
employee benefit plans referred to in the Prospectus or pursuant to the
exercise of exchangeable securities or options referred to in the
Prospectus). The shares of issued and outstanding capital stock of the
Company, including the Offered Securities to be purchased by the
Underwriters from the Selling Stockholders, have been duly authorized
and validly issued and are fully paid and non-assessable; and none of
such shares of capital stock of the Company was issued in violation of
the statutory preemptive rights or, to such counsel's knowledge,
contractual preemptive rights or other similar rights of any
securityholder of the Company that have not been waived. The Offered
Securities conform in all material respects to the description thereof
contained under the caption "Description of Capital Stock - Common
Stock" in the Prospectus.
(v) The sale of the Offered Securities by the Selling
Stockholders is not subject to the statutory preemptive rights or, to
such counsel's knowledge, contractual preemptive rights or other
similar rights of any securityholder of the Company;
(vi) Each U.S. subsidiary of the Company set forth on Annex A
to such opinion (individually, a "U.S. SUBSIDIARY" and, collectively,
the "U.S. SUBSIDIARIES") has been duly incorporated or formed and is
validly existing as a corporation, limited liability company or limited
partnership in good standing under the laws of the jurisdiction of its
incorporation or formation, has all requisite corporate, limited
liability company or limited partnership power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation, limited liability company or limited partnership to
transact business and is in good standing in each jurisdiction set
forth on Annex C to such opinion; except as otherwise disclosed in the
Registration Statements and the Prospectus (A) all of the issued and
outstanding capital stock or ownership interests of each such U.S.
Subsidiary has been duly authorized and validly issued and is fully
paid and non-assessable and (B) to such counsel's knowledge, all of the
issued and outstanding capital stock or ownership interests of each
U.S. Subsidiary is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim, except as described in the
Prospectus;
(vii) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
14
(viii) The Initial Registration Statement and any Additional
Registration Statement has been declared or become effective under the
Act; the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein; and, to such counsel's knowledge, no stop order
suspending the effectiveness of a Registration Statement has been
issued under the Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission;
(ix) Each Registration Statement and the Prospectus and each
amendment or supplement to a Registration Statement and the Prospectus,
excluding in each case the documents incorporated by reference therein,
as of their respective effective or issue dates (other than the
financial statements and supporting schedules included therein or
omitted therefrom, as to which such counsel need express no opinion)
appeared on their face to comply as to form in all material respects
with the requirements of the Act and the Rules and Regulations;
(x) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules included
therein or omitted therefrom, as to which such counsel need express no
opinion), when they were filed with the Commission, appeared on their
face to comply as to form in all material respects with the
requirements of the Exchange Act and the Rules and Regulations;
(xi) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the Company or
any of the U.S. Subsidiaries is a party or to which any of their
respective property is subject that are required to be described in any
Registration Statement or the Prospectus and are not so described;
(xii) The information in the Prospectus under "Registration
Rights," "Material United States Federal Tax Consequences to Non-United
States Holders of Common Stock" and "Description of Capital Stock," in
the Company's Proxy Statement on Schedule 14A for the 2002 annual
stockholders meeting under "Executive Compensation - Indemnification
Agreements," "Executive Compensation - Executive Agreements,"
"Executive Compensation - Change of Control Severance Plan," "Related
Party Transactions - Registration Rights" and "Approval of the 2001
Equity Participation Plan," and in the Initial Registration Statement
under Item 15, to the extent that it constitutes matters of law, legal
conclusions or summaries of legal matters, the Company's charter or
bylaws or contracts and agreements to which the Company or any U.S.
Subsidiary is a party, has been reviewed by such counsel and is correct
in all material respects;
(xiii) To such counsel's knowledge, there are no contracts or
other agreements required to be described or referred to in a
Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed as exhibits thereto;
(xiv) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency of the United States or of the States
of Delaware, Texas or New York (other than (1) under the Act, the
Exchange Act and the Rules and Regulations, which have been obtained or
made, or (2) as may be required under the securities or blue sky laws
of the various states in connection with the offering made by the
Prospectus, as to which such counsel need express no opinion) is
necessary or required in connection with the due authorization,
execution and delivery of the Underwriting Agreement or for the
offering, sale or delivery of the Offered Securities;
(xv) The execution, delivery and performance of the
Underwriting Agreement and the consummation of the transactions
contemplated in the Underwriting Agreement and in the Registration
Statements and the Prospectus (including the sale of the Offered
Securities by the Selling Stockholders) and compliance by the Company
with its obligations under the Underwriting Agreement have been duly
authorized by all necessary corporate action and proceedings on their
part, and do not and will not, whether with or without the giving of
notice or lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event under
15
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument which is listed on Annex D to such opinion (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
could not, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect), nor will such action result in any violation
of the provisions of the charter, by-laws or other organizational
instrument of the Company or any of the U.S. Subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to such counsel (excluding any securities or blue sky
laws and the rules and regulations of the NASD), of any governmental
agency, body or court having jurisdiction over the Company or any of
the U.S. Subsidiaries or any of its properties, assets or operations;
(xvi) To such counsel's knowledge, except as disclosed in the
Prospectus under the caption "Registration Rights," there are no
persons with registration rights or other similar rights to have any
securities of the Company registered pursuant to a Registration
Statement or otherwise registered by the Company under the Act, except
for any persons with such rights that have been waived;
(xvii) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the 1940 Act; and
(xviii) Nothing has come to such counsel's attention that
would lead such counsel to believe that a Registration Statement or any
amendment thereto (except for financial statements and schedules and
other financial data included therein or omitted therefrom, as to which
we need make no statement), at the time such Registration Statement or
any such amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; or
that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included
therein or omitted therefrom, as to which we need make no statement),
at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or on the Closing Date, included 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.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of Fraser Xxxxxx Casgrain, special Canadian counsel for the
Company, to the effect that:
(i) PTI Group Inc. ("PTI") has been duly amalgamated and is
validly subsisting under the laws of the Province of Alberta;
(ii) PTI has the requisite corporate power and authority to
own, lease and operate its properties and conduct its business as
described in the Prospectus;
(iii) PTI is duly registered as an extra-provincial
corporation to transact business in each jurisdiction in which such
registration is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
register would not result in a Material Adverse Effect;
(iv) Each wholly owned Canadian subsidiary of PTI organized
under the laws of Alberta (each, a "Canadian Subsidiary") has been duly
incorporated or amalgamated, as the case may be, and is validly
subsisting under the laws of the jurisdiction of its incorporation or
amalgamation, as the case may be, and has all requisite corporate power
and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly registered as
an extra-provincial corporation to transact business in each
jurisdiction in which such registration is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so register would not result in a Material
Adverse
16
Effect. Except as otherwise disclosed in the Registration Statements
and the Prospectus, all of the issued and outstanding shares in the
capital of each Canadian Subsidiary and of PTI have been duly
authorized and validly issued, and are fully paid up and
non-assessable. To such counsel's knowledge, all of the issued and
outstanding shares in the capital of each Canadian Subsidiary are owned
by PTI free and clear of any registered security interest, mortgage,
pledge, lien, encumbrance, claim or equity other than in favour of Bank
of Montreal, The Toronto-Dominion Bank, Royal Bank of Canada and Credit
Suisse First Boston Canada. None of the outstanding shares in the
capital of any Canadian Subsidiary or of PTI was issued in violation of
the preemptive or similar rights of any securityholder contained in the
articles, by-laws or other organizational documents of such Canadian
Subsidiary or PTI or that arise under the laws of the Province of
Alberta;
(v) To such counsel's knowledge, neither PTI nor any Canadian
Subsidiary is in violation of its articles, by-laws or other
organizational documents and no default by any of them exists in the
due performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument that is
described or referred to in any Registration Statement or the
Prospectus or filed as an exhibit to a Registration Statement or the
Company's most recent Annual Report on Form 10-K or Quarterly Report in
Form 10-Q; and
(vi) To such counsel's knowledge, except as disclosed in the
Prospectus, there are no outstanding options to purchase, or any
preemptive rights or other rights to subscribe for or to purchase, any
securities or obligations convertible into, or any contracts or
commitments to issue or sell, shares in the capital of PTI or any
Canadian Subsidiary or any such options, rights, convertible securities
or obligations.
(g) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxx & Xxxxxx L.L.P., special counsel for the Selling
Stockholders, to the effect that:
(i) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than as
have been obtained or made and as may be necessary under United States
state securities laws, as to which we need express no opinion) is
necessary or required to be obtained by the Selling Stockholders for
the performance by the Selling Stockholders of their obligations under
this Agreement or the Custody Agreements or in connection with the
offer, sale or delivery of the Offered Securities;
(ii) Each of the Custody Agreements has been duly authorized,
executed and delivered by the Selling Stockholder named therein and
constitutes the legal, valid and binding agreement of such Selling
Stockholder, except such counsel may express no opinion as to the
effect of applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles
(regardless of whether such enforceability is considered in a
proceeding at law or in equity). This Agreement has been duly
authorized, executed and delivered by or on behalf of each of the
Selling Stockholders;
(iii) The execution, delivery and performance of this
Agreement and the respective Custody Agreement of each Selling
Stockholder and the sale and delivery of the Offered Securities and the
consummation of the transactions contemplated in this Agreement and in
each Registration Statement and the Prospectus and compliance by such
Selling Stockholder with its obligations under this Agreement and such
Custody Agreement have been duly authorized by all necessary action on
the part of such Selling Stockholder and do not and will not, whether
with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default under or result in
the creation or imposition of any lien, charge or encumbrance upon the
Offered Securities or any property or assets of such Selling
Stockholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other
17
instrument or agreement to which such Selling Stockholder is a party or
by which it may be bound or to which any of the property or assets of
such Selling Stockholder may be subject and which is material to such
Selling Stockholder, nor will such action result in any violation of
the provisions of the limited partnership agreement of such Selling
Stockholder or any law, administrative regulation, judgment, order or
decree, known to such counsel (excluding any securities or blue sky
laws and the rules and regulations of the NASD), of any governmental
agency, body or court having jurisdiction over such Selling Stockholder
or any of its properties;
(iv) Immediately prior to the sale of the Offered Securities
to be sold by each Selling Stockholder under this Agreement, such
Selling Stockholder was the record owner of the Offered Securities to
be sold on such Closing Date by such Selling Stockholder; and
(v) Upon the payment of the purchase price for the Offered
Securities to be purchased by the Underwriters from the Selling
Stockholders pursuant to the Underwriting Agreement and the indication
by book entry by The Depository Trust Company that the Offered
Securities have been credited to the securities accounts of the
Underwriters, (1) the Underwriters will acquire a valid security
entitlement (within the meaning of Section 8-501 of the Uniform
Commercial Code as in effect in the State of New York on the date of
such opinion (the "NYUCC")) in respect of such Offered Securities, and
(2) an action based on an adverse claim to the Offered Securities
(whether framed in conversion, replevin, constructive trust, equitable
lien or other theory) may not be asserted (within the meaning of
Section 8-502 of the NYUCC) against the Underwriters.
(h) The Representatives shall have received from Xxxxx 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 Offered
Securities delivered on such Closing Date, the Registration Statements, the
Prospectus and other related matters as the Representatives may require, and the
Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(i) The Representatives shall have received a certificate, dated such
Closing Date:
(i) of the President or any Vice President and the principal
financial or principal 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, that 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, that no stop order suspending the effectiveness of any
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission, that 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 that, subsequent to the date of 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; and
(ii) of each Selling Stockholder to the effect that the
representations and warranties of such Selling Stockholder in this
Agreement are true and correct and that such Selling Stockholder 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.
(j) The Representatives shall have received a letter, dated such
Closing Date, of each of Ernst & Young LLP and PricewaterhouseCoopers LLP which
meets the requirements of subsections (a)
18
and (b), respectively, 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.
(k) On or prior to the date of this Agreement, the Representatives
shall have received lockup letters from each of the executive officers and
directors of the Company.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CSFB 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 preliminary
prospectus supplement, 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 or on behalf of any Underwriter through
the Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in subsection (c) below; and
provided, further, that with respect to any untrue statement or alleged untrue
statement in or omission or alleged omission from any preliminary prospectus or
preliminary prospectus supplement 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
Offered Securities concerned, to the extent that a prospectus supplement
relating to such Offered Securities 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 Offered Securities to such person, a copy of the Prospectus
(exclusive of material incorporated by reference) if the Company had previously
furnished copies thereof to such Underwriter.
(b) The Selling Stockholders, severally and not jointly, 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 Selling Stockholders 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 or on behalf of any Underwriter through
the Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in subsection (c) below; provided,
further, that with respect to any untrue statement or alleged untrue statement
in or omission or alleged omission from any preliminary
19
prospectus or preliminary prospectus supplement the indemnity agreement
contained in this subsection (b) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus supplement relating to such Offered Securities 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 Offered Securities to such person, a copy of
the Prospectus (exclusive of material incorporated by reference) if the Company
had previously furnished copies thereof to such Underwriter; provided, further,
that each Selling Stockholder 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 in writing by or on behalf
of such Selling Stockholder specifically for use therein, it being understood
and agreed that the only such information provided by or on behalf of the
Selling Stockholders consists of the information under the caption "Selling
Stockholders" in the Prospectus (other than percentages of beneficial
ownership); and provided, further, that the liability under this subsection of
each Selling Stockholder shall be limited to an amount equal to the aggregate
gross proceeds after underwriting commissions and discounts, but before
expenses, to such Selling Stockholder from the sale of Offered Securities sold
by such Selling Stockholder hereunder.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and each Selling Stockholder, their respective partners,
directors and officers and each person, if any, who controls the Company or such
Selling Stockholder within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company or such Selling
Stockholder 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
preliminary prospectus supplement, 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 or
on behalf of 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 Stockholder 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 the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in, and the last sentence of, the fourth paragraph
and the 11th and 12th paragraphs 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 the indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a), (b) or (c)
above except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an 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 the 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 settlement (i) 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.
20
(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 Stockholders 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 Stockholders 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 Stockholders 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
Selling Stockholders 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 Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or 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 Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter 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 and to each person, if any, who controls the Company
within the meaning of the Act.
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 shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFB may
make arrangements satisfactory to the Selling Stockholders 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 shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFB and the Selling Stockholders 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 Stockholders, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities 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.
21
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers, of the Selling Stockholders 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, the Selling
Stockholders, 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, each of the Company and the Selling
Stockholders shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 5 and the respective obligations of the Company, the
Selling Stockholders 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), (v), (vi) or (vii) of Section 6(d), the
Company will 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 Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or faxed and confirmed to
the Representatives, c/o Credit Suisse First Boston LLC, Eleven Madison Avenue,
New York, N.Y. 10010-3629, Attention: Transactions Advisory Group (fax:
000-000-0000); if sent to the Company, will be mailed, delivered or faxed and
confirmed to it at Three Xxxxx Center, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxx 00000, Attention: Xxxxx X. Xxxxxx (fax: 000-000-0000); or if sent to any
Selling Stockholder, will be mailed, delivered or faxed and confirmed to it at
000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxxxx XxXxxx (fax:
000-000-0000); provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or faxed 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 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 of Underwriters. 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 CSFB will be binding upon all the Underwriters.
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.
Each of the Company and the Selling Stockholders hereby submits 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.
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
Company, the Selling Stockholders and the several Underwriters in accordance
with its terms.
Very truly yours,
OIL STATES INTERNATIONAL, INC.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: V.P. Finance and Accounting
SCF-III, L.P.
By: SCF-II, L.P.,
its general partner
By: X.X. XXXXXXX & ASSOCIATES INCORPORATED,
its general partner
By: /s/ XXXXXXX X. XxXXXX
-----------------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Managing Director
SCF-IV, L.P.
By: SCF-IV G.P., LIMITED PARTNERSHIP,
its general partner
By: X.X. XXXXXXX & ASSOCIATES INCORPORATED,
its general partner
By: /s/ XXXXXXX X. XxXXXX
-----------------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Managing Director
23
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON LLC
XXXXXXX, XXXXX & CO.
Acting on behalf of themselves and as the
Representatives of the several Underwriters
By: CREDIT SUISSE FIRST BOSTON LLC
By: /s/ XXXXX XXXX
---------------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
24
SCHEDULE A
NUMBER OF FIRM SECURITIES TO BE SOLD BY:
----------------------------------------
TOTAL NUMBER OF
FIRM SECURITIES
UNDERWRITERS SCF-III, L.P. SCF-IV, L.P. TO BE PURCHASED
------------ ------------- ------------ ---------------
Credit Suisse First Boston LLC.................... 1,754,883 695,117 2,450,000
Xxxxxxx, Sachs & Co............................... 1,754,883 695,117 2,450,000
Xxxxxxx & Company International................... 752,093 297,907 1,050,000
CIBC World Markets Corp........................... 250,698 99,302 350,000
Xxxxxxxxx & Company, Inc.......................... 250,698 99,302 350,000
RBC Xxxx Xxxxxxxx Inc............................. 250,697 99,303 350,000
------------------- -------------------- ------------------
Total ........................ 5,013,952 1,986,048 7,000,000
=================== ==================== ==================
