EXHIBIT 1.1
5,976,251 SHARES
PRIDE INTERNATIONAL, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
New York, New York
May 18, 2005
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Pride International, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to issue and sell to the several
underwriters named in Schedule II hereto (the "Underwriters"), for whom you
(the "Representatives") are acting as representatives, 5,976,251 shares of
common stock, par value $0.01 per share (the "Common Stock"). The aggregate of
5,976,251 shares to be purchased from the Company are called "Securities." To
the extent there are no additional Underwriters listed on Schedule II other
than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference. Certain terms used herein are
defined in Section 16 hereof.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto) on
Form S-3, including a related basic prospectus, for registration under the
Act and Rule 415 of the offering and sale of various debt and equity
securities, including the Securities. The Company may have filed one or
more amendments
thereto, including a Preliminary Final Prospectus, each of which has
previously been furnished to you. The Company will next file with the
Commission one of the following: (1) after the Effective Date of such
registration statement, a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus supplement)
or (3) a final prospectus in accordance with Rules 415 and 424(b). In the
case of clause (1), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As
filed, such final prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the respective
rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date, the Final Prospectus (together
with any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Final Prospectus, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify does not have a material adverse effect on the
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condition (financial or otherwise), earnings, business, properties or
results of operations of the Company and the Subsidiaries (as hereinafter
defined) taken as a whole whether or not arising from transactions in the
ordinary course of business (a "Material Adverse Effect").
(d) Each "significant subsidiary" (as such term is defined in
Regulation S-X under the Exchange Act) of the Company is listed on Exhibit
21 to the Annual Report on Form 10-K of the Company for the year ended
December 31, 2004 or is described in the Registration Statement or the
Final Prospectus as having been acquired after December 31, 2004. Other
than those subsidiaries listed on Schedule III hereto (the
"Subsidiaries"), no subsidiary of the Company is a "significant
subsidiary" of the Company as defined by Rule 1-02 of Regulation S-X. Each
of the Subsidiaries has been duly organized, is validly existing and is in
good standing in the jurisdiction of its incorporation or formation, as
the case may be, with full corporate or other entity power and authority
to own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Final Prospectus, and is
duly registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its properties
or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not
have a Material Adverse Effect.
(e) All of the issued and outstanding shares of capital stock of each
of the Subsidiaries have been duly authorized and validly issued and are
owned directly or indirectly by the Company, subject to such minimum
minority ownership interests in the non-U.S. Subsidiaries as may be
required under applicable law or as otherwise disclosed in the Final
Prospectus. All such shares are fully paid and nonassessable, and, except
as disclosed in the Final Prospectus, are owned by the Company free and
clear of any security interest, mortgage, pledge, claim, lien, encumbrance
or adverse interest of any nature (each, a "Lien"). Except as disclosed in
the Final Prospectus, there are no outstanding subscriptions, rights,
warrants, options, calls, convertible or exchangeable securities,
commitments of sale, or Liens related to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of, or
other ownership interests in, any Subsidiary.
(f) All of the issued and outstanding shares of Common Stock of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights. The
Securities have been duly authorized and, when delivered against payment
of the purchase price thereof in accordance with this Agreement, will be
validly issued, fully paid and nonassessable and free of any preemptive or
similar rights; and the capital stock of the Company conforms in all
material respects to the description thereof in the Registration Statement
and the Final Prospectus.
(g) Neither the Company nor any Subsidiary is in violation of or in
default under (a) its certificate or articles of incorporation or bylaws,
or other organizational documents, (b) any bond, debenture, note or any
other evidence of indebtedness or any indenture, mortgage, deed of trust
or other contract, lease or other instrument to which it is a party or by
which it is bound, or to which any of its property or assets is subject,
or (c) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any subsidiary of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
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authority having jurisdiction over the Company or any subsidiary or
any of its or their properties, except with respect to clause (b) and (c),
which could not reasonably be expected, singly or in the aggregate, to
have a Material Adverse Effect. No contract or other document of a
character required to be described in the Registration Statement or the
Final Prospectus or to be filed as an exhibit to the Registration
Statement is not so described or filed as required.
(h) This Agreement has been duly and validly authorized, executed and
delivered by the Company.
(i) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement by the Company, nor the
consummation by the Company of the transactions contemplated hereby (i)
requires any consent, approval, authorization or other order of or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official (except such as may
be required for the registration of the Securities under the Act, listing
of the Securities on the New York Stock Exchange, and compliance with the
securities or Blue Sky laws of various jurisdictions, all of which have
been or will be effected in accordance with this Agreement) or conflicts
or will conflict with or constitutes or will constitute a breach of, or a
default under, the certificate or articles of incorporation or bylaws, or
other organizational documents, of the Company or any of the Subsidiaries
or (ii) except as would not have a Material Adverse Effect, conflicts or
will conflict with or constitutes or will constitute a breach of, or a
default under, any agreement, indenture, lease or other instrument to
which the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound, or violates or
will violate any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Company or any of the
Subsidiaries or any of their respective properties, or will result in the
creation or imposition of any Lien upon any property or assets of the
Company or any of the Subsidiaries pursuant to the terms of any agreement
or instrument to which any of them is a party or by which any of them may
be bound or to which any of the property or assets of any of them is
subject.
(j) Except as disclosed in the Final Prospectus, there is no action,
suit or proceeding before or by any court or governmental agency or body
pending against the Company or any of its Subsidiaries that is required to
be disclosed in the Registration Statement or the Final Prospectus, or
which could reasonably be expected to have a Material Adverse Effect, or
materially and adversely affect the performance of the Company's
obligations pursuant to this Agreement and, to the best of the Company's
knowledge, no such proceedings are contemplated or threatened. No action
has been taken with respect to the Company or any Subsidiary, and no
statute, rule or regulation or order has been enacted, adopted or issued
by any governmental agency and no injunction, restraining order or other
order of any court of competent jurisdiction has been issued with respect
to the Company or any Subsidiary that prevents the issuance of the
Securities, suspends the effectiveness of the Registration Statement,
prevents or suspends the use of any Preliminary Final Prospectus or the
Final Prospectus or prevents or suspends the sale of the Securities in any
jurisdiction that you have specified pursuant to Section 5(e) hereof; no
action, suit or proceeding before any court or arbitrator or any
governmental body, agency or official (domestic or foreign), is
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pending against or, to the knowledge of the Company, threatened
against, the Company or any Subsidiary that, if adversely determined,
could reasonably be expected to (a) interfere with or adversely affect the
issuance of the Securities or (b) in any manner invalidate this Agreement;
and every request of the Commission, or any securities authority or agency
of any jurisdiction, for additional information to be included in the
Registration Statement or the Final Prospectus or otherwise has been
complied with in all material respects.
(k) PricewaterhouseCoopers LLP, who have certified or shall certify
certain of the financial statements of the Company and its consolidated
subsidiaries and have delivered their report with respect to the audited
consolidated financial statements and schedules included or incorporated
by reference in the Registration Statement and the Final Prospectus, are
an independent registered public accounting firm within the meaning of the
Act.
(l) The consolidated financial statements, together with related
schedules and notes, in the Company's annual report on Form 10-K for the
year ended December 31, 2004, quarterly report on Form 10-Q for the
quarterly period ended March 31, 2005 and any other reports filed by the
Company with the Commission under the Exchange Act subsequent to the
filing of such quarterly report, included or incorporated by reference in
the Registration Statement and the Final Prospectus (and any amendment or
supplement thereto), present fairly in all material respects the
consolidated financial position, results of operations and cash flows of
the Company and the Subsidiaries on the basis stated in the Registration
Statement at the respective dates or for the respective periods to which
they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data in
the Company's annual report on Form 10-K for the year ended December 31,
2004, quarterly report on Form 10-Q for the quarterly period ended March
31, 2005 and any other reports filed by the Company with the Commission
under the Exchange Act subsequent to the filing of such quarterly report,
included or incorporated by reference in the Registration Statement and
the Final Prospectus (and any amendment or supplement thereto), are in all
material respects accurately presented and prepared on a basis consistent
with the audited financial statements and the books and records of the
Company and the Subsidiaries.
(m) Subsequent to the respective dates as of which such information is
given in the Registration Statement and the Final Prospectus (or any
amendment or supplement thereto), neither the Company nor any of the
Subsidiaries has incurred any liability or obligation, direct or
contingent, that is material to the Company and its Subsidiaries taken as
a whole, or entered into any transaction, not in the ordinary course of
business, that is material to the Company and the Subsidiaries taken as a
whole, and there has not been any material adverse change, or any
development involving or which may reasonably be expected to involve, a
prospective material adverse change, in the condition (financial or
otherwise), earnings, business or results of operations of the Company and
the Subsidiaries taken as a whole.
(n) Except as would not have a Material Adverse Effect, each of the
Company and the Subsidiaries has good and marketable title to all property
(real and personal)
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described in the Final Prospectus as being owned by it, free and clear
of all Liens, except Liens for taxes not yet due and payable and Liens
described in the Registration Statement or the Final Prospectus or in a
document filed as an exhibit to the Registration Statement. All the
property described in the Final Prospectus as being held under lease by
each of the Company and the Subsidiaries is held by it under valid,
subsisting and enforceable leases, except as would not have a Material
Adverse Effect.
(o) The Company has not distributed and, prior to the later to occur
of (i) the Closing Date and (ii) completion of the distribution of the
Securities, will not distribute any offering material in connection with
the offering and sale of the Securities other than the Registration
Statement, any Preliminary Final Prospectus, the Final Prospectus or other
materials, if any, filed pursuant to the Exchange Act.
(p) The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are in all material respects necessary to own
its respective properties and to conduct its business in the manner
described in the Final Prospectus, subject to such qualifications as may
be set forth in the Final Prospectus; the Company and each of the
Subsidiaries has fulfilled and performed all its material obligations with
respect to such permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the holder of
any such permit, subject in each case to such qualification as may be set
forth in the Final Prospectus; and, except as described in the Final
Prospectus, none of such permits contains any restriction that is
materially burdensome to the Company and any of the Subsidiaries
considered as a whole.
(q) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's authorization; (ii) transactions
are recorded as necessary to permit preparation of the Company's
consolidated financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's
authorization; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is
taken with respect to any material differences.
(r) Except as would not, individually or in the aggregate, have a
Material Adverse Effect: (i) neither the Company nor any Subsidiary is in
violation of any foreign, Federal, state or local laws and regulations
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, ground water,
land surface or subsurface strata), including, without limitation, laws
and regulations relating to emissions, discharges, releases or threatened
releases of toxic or hazardous substances, materials or wastes, or
petroleum and petroleum products ("Materials of Environmental Concern"),
or otherwise relating to the storage, disposal, transport or handling of
Materials of Environmental Concern (collectively, "Environmental Laws"),
which violation includes, but is not limited to, noncompliance with any
permits or other governmental authorizations; (ii) neither the Company nor
any Subsidiary has received any communication (written or oral), whether
from a governmental authority or otherwise, alleging any such violation
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or noncompliance, and there are no circumstances, either past, present
or that are reasonably foreseeable, that may lead to such violation in the
future; (iii) there is no pending or, to the Company's knowledge,
threatened claim, action, investigation or notice (written or oral) by any
person or entity alleging potential liability for investigatory, cleanup,
or governmental responses costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Materials of
Environmental Concern at any location owned or operated by the Company or
any Subsidiary, now or in the past, or (y) circumstances forming the basis
of any violation, or alleged violation, of any Environmental Law
(collectively, "Environmental Claims"); and (iv) there are no past or
present actions, activities, circumstances, conditions, events or
incidents, that could form the basis of any Environmental Claim against
the Company or any Subsidiary or against any person or entity whose
liability for any Environmental Claim the Company or any Subsidiary has
retained or assumed either contractually or by operation of law.
(s) The Company and each of the Subsidiaries have filed all material
non-U.S., U.S. federal, state and local tax returns required to be filed,
other than those filings being contested in good faith, and neither the
Company nor any Subsidiary is in default in the payment of any taxes which
were payable pursuant to said returns or any assessments with respect
thereto.
(t) The Company and the Subsidiaries own or possess the right to use
all patents, trademarks, trademark registrations, service marks, service
xxxx registrations, trade names, copyrights, licenses, inventions, trade
secrets and rights described in the Final Prospectus as being owned by
them or any of them or necessary for the conduct of their respective
businesses, and the Company is not aware of any claim to the contrary or
any challenge by any other person to the rights of the Company and the
Subsidiaries with respect to the foregoing.
(u) Neither the Company, nor to the Company's best knowledge, any of
its affiliates (as defined in Rule 144 under the Act), has taken or will
take, directly or indirectly, any action designed to cause or result in,
or which has constituted or which might reasonably be expected to
constitute, the manipulation or unlawful stabilization of the price of any
security of the Company to facilitate the distribution of the Securities.
(v) The Company is in full compliance with all requirements of the
sanctions program implemented and administered by the U.S. Department of
the Treasury's Office of Foreign Assets Control ("OFAC"), including,
without limitation, 31 CFR Parts 500-600 ("OFAC Sanctions Programs"). The
Company will not use, or permit the use by any other person of, any
proceeds from this transaction in any way that would be prohibited by any
OFAC Sanctions Program.
(w) Except as contemplated by Article 5 of the Second Amended and
Restated Shareholders Agreement, dated as of March 4, 2002, among the
Company, First Reserve Fund VII, Limited Partnership, First Reserve Fund
VIII, L.P. and First Reserve Fund IX, L.P., no holder of any security of
the Company has any right to require registration of shares
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of Common Stock or any other security of the Company because of the
filing of the Registration Statement or consummation of the transactions
contemplated by this Agreement.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the Securities set forth opposite such Underwriter's name in
Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made on the date and at the time specified in Schedule I hereto or at such
time on such later date not more than three Business Days after the foregoing
date as the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of the
Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus or
any Preliminary Final Prospectus) to the Basic Prospectus or any Rule
462(b) Registration Statement, excluding documents filed under the
Exchange Act that are incorporated by reference therein, unless the
Company has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration Statement
has become or becomes effective pursuant to Rule 430A, or filing of the
Final Prospectus is otherwise required under Rule 424(b), the Company will
cause the Final Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company
will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
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Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement or
any Rule 462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3)
supply any supplemented Final Prospectus to you in such quantities as you
may reasonably request.
(c) The Company will make generally available to its security holders
and to the Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed or conformed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the expenses
of printing or other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale by the Underwriters under the laws of such
jurisdictions as the Representatives may reasonably designate, will
maintain such qualifications in effect so long as required for the
distribution of the Securities and will pay any fee of the National
Association of Securities Dealers, Inc., in connection with its review of
the offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to the imposition of
any tax or to service
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of process in suits, other than those arising out of the offering or
sale of the Securities, in any jurisdiction where it is not now so
subject.
(f) The Company will not take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, under the Exchange Act or otherwise,
manipulation or unlawful stabilization of the price of any security of the
Company to facilitate the distribution of the Securities.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the Execution Time and the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 p.m., New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 p.m.,
New York City time on such date or (ii) 9:30 a.m. on the Business Day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 p.m., New York City time, on such
date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Xxxxx L.L.P.,
outside counsel for the Company, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the
Representatives, to the effect set forth on Exhibit A.
(c) The Company shall have requested and caused Xxxxx & Xxxxxxx,
Bahamian counsel for the Company, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the
Representatives, to the effect set forth on Exhibit B.
(d) The Company shall have requested and caused Brons & Xxxxx,
Argentine counsel for the Company, to have furnished to the
Representatives its opinion, dated the Closing Date and addressed to the
Representatives, to the effect set forth on Exhibit C.
(e) The Company shall have requested and caused Xxxx Xxxx Xxxxxxxxx,
Director Juridique of Pride Forasol s.a.s., to have furnished to the
Representatives his opinion, dated the Closing Date and addressed to the
Representatives, to the effect set forth on Exhibit D. ---------
(f) The Company shall have requested and caused W. Xxxxxxx Xxxxxx,
Vice President, General Counsel and Secretary for the Company, to have
furnished to the Representatives his opinion, dated the Closing Date and
addressed to the Representatives, to the effect set forth on Exhibit E.
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(g) The Representatives shall have received from Xxxxxx & Xxxxxx
L.L.P., counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Representatives a
certificate of the Company, signed by (x) the Chief Executive Officer or
the President and (y) the Chief Financial Officer or the Chief Accounting
Officer, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Final
Prospectus, any supplements to the Final Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects (except with
respect to representations and warranties that are qualified by
materiality, which shall be true and correct in all respects) on and
as of the Closing Date with the same effect as if made on the Closing
Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date; and
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened by the Commission.
(i) The Company shall have requested and caused PricewaterhouseCoopers
LLP to have furnished to the Representatives, at the Execution Time and at
the Closing Date, letters (which may refer to letters previously delivered
to one or more of the Representatives), dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are an
independent registered public accounting firm within the meaning of the
Act and the Exchange Act and the respective applicable rules and
regulations adopted by the Commission thereunder, and stating in effect,
except as provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference in
the Registration Statement and the Final Prospectus and reported on by
them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 100, of the unaudited interim
financial information for the three-month period ended March 31, 2005
and as at March 31, 2005 incorporated by reference in the
-11-
Registration Statement and the Final Prospectus; carrying out
certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and audit committees of the
Company and the Subsidiaries; and inquiries of certain officials of
the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and
events subsequent to December 31, 2004, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material respects
with applicable accounting requirements of the Act and the
Exchange Act and the related rules and regulations of the
Commission with respect to financial statements included or
incorporated by reference in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial statements are not
in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference
in the Registration Statement and the Final Prospectus; and
(2) with respect to the period subsequent to March 31, 2005,
there were any changes, at a specified date not more than five
days prior to the date of the letter, in the capital stock,
increase in long-term debt or decrease in the consolidated net
current assets (working capital) or stockholders' equity of the
Company and its subsidiaries as compared with the amounts shown on
the March 31, 2005 consolidated balance sheet included or
incorporated by reference in the Registration Statement and the
Final Prospectus, or for the period from April 1, 2005 to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year in total consolidated
net sales, income from operations or net income of the Company and
its subsidiaries, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
included or incorporated by reference in Items 1, 2, 6, 7, 7A and 8 of
the Company's Annual Report on Form 10-K, incorporated by reference in
the Registration Statement and the Final Prospectus, and the
information included in the "Management's Discussion and
-12-
Analysis of Financial Condition and Results of Operations"
included in the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2005, incorporated by reference in the
Registration Statement and the Final Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
References to the Final Prospectus in this paragraph (i) include any
supplement thereto at the date of the letter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (i) of this Section 6
(other than any change or decrease specified in such letter or letters
specified at the Execution Time) or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial
or otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in the Final Prospectus (exclusive of any supplement thereto) the effect
of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive of
any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(l) The Securities shall have been approved for listing, subject to
notice of issuance, on the New York Stock Exchange.
(m) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
-13-
The documents required to be delivered by this Section 6 shall be
delivered at the office of Xxxxx Xxxxx L.L.P., counsel for the Company, at 000
Xxxxxxxxx, Xxxxxxx, XX 00000 on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of one
underwriters' counsel) that shall have been incurred by them in connection with
the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein and (ii) with respect to any
untrue statement or omission of a material fact made in any Preliminary Final
Prospectus, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any Underwriter (or any of the directors, officers,
employees, and agents of such Underwriter or any controlling person of such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities concerned, to the extent that any such loss,
claim, damage, or liability of such Underwriter occurs under the circumstances
where it shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment (with the burden of proof resting with the
Company) that (w) the Company had previously furnished copies of the Final
Prospectus to the Underwriters, (x) delivery of the Final Prospectus was
required by the Act to be made to such person, (y) the untrue statement or
omission of a material fact contained in the Preliminary Final Prospectus was
corrected in the Final Prospectus and (z) there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Securities
to such person, a copy of the Final Prospectus. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
-14-
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity, and will reimburse the Company and
such other persons for any legal or other expense reasonably incurred by
the Company or such other persons in connection with investigating or
defending any such action or claim as such expenses are incurred. This
indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that (i) the
statements set forth in the table regarding the public offering price and
underwriting discounts and commissions and in the fifth paragraph of the
cover page and (ii) under the heading "Underwriting," (A) the third and
fourth paragraphs related to the public offering price, underwriting
discounts and commissions, and selling concessions, (C) the seventh,
eighth and ninth paragraphs related to stabilization, syndicate covering
transactions and penalty bids and (D) the tenth and eleventh paragraphs
related to electronic distribution in any Preliminary Final Prospectus and
the Final Prospectus constitute the only information furnished in writing
by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of
the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b)
above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party;
-15-
provided, however, that it is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties. An indemnifying party will not, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses")
to which the Company and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and by the Underwriters on the
other from the offering of the Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company
on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions received by the Underwriters. Relative fault
shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other,
the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the
Company shall have the
-16-
same rights to contribution as the Company, subject in each case to
the applicable terms and conditions of this paragraph (d).
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended
by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or
materially limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by U.S.
Federal or New York State authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive
of any supplement thereto).
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to (000) 000-0000 and confirmed to it at Xxxxxx Brothers Inc.,
Syndicate Registration Department, 1285 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 or, if sent to the Company, will be mailed, delivered or
telefaxed to (000) 000-0000 and confirmed to it at 0000 Xxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, Attention: W. Xxxxxxx Xxxxxx, Vice President, General
Counsel and Secretary.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
14. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
-17-
15. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean the date and time that the Company's
annual report on Form 10-K for the year ended December 31, 2004 was filed
with the Commission pursuant to Section 13(a) of the Exchange Act and each
date and time thereafter that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case
-18-
may be. Such term shall include any Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A.
"Rule 415," "Rule 424," "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
17. Consent to Representation. The Company and the Underwriters
acknowledge that Xxxxxx & Xxxxxx L.L.P., which is acting as counsel to the
Underwriters in connection with the offer and sale of the Securities, also acts
as counsel from time to time to the Company and certain of its affiliates in
connection with unrelated matters. The Company and the Underwriters consent to
Xxxxxx & Xxxxxx L.L.P. so acting as counsel to the Underwriters.
-19-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
PRIDE INTERNATIONAL, INC.
By /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
-20-
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
XXXXXX BROTHERS INC.
By: /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Managing Director
For themselves and the other several
Underwriters, if any, named in Schedule II
to the foregoing Agreement.
-21-
Schedule I-1
SCHEDULE I
Underwriting Agreement dated May 18, 2005
Registration Statement No. 333-118106
Representative(s): Xxxxxx Brothers Inc.
Description of Securities and Purchase Price:
Securities: Common Stock, par value $0.01 per share
Purchase price: $20.68 per share
Closing Date, Time and Location: May 24, 2005 at 10:00 a.m. at Xxxxx Xxxxx
L.L.P., 000 Xxxxxxxxx, Xxxxxxx, Xxxxx 00000
Modification of items to be covered by the letter from PricewaterhouseCoopers
LLP delivered pursuant to Section 6(e) at the Execution Time: None
Schedule I-1
Schedule II-1
SCHEDULE II
UNDERWRITERS SHARES OF COMMON STOCK
------------------------- ----------------------
Xxxxxx Brothers Inc. 5,976,251
------------
5,976,251
============
Schedule II-1
SCHEDULE III
Significant Subsidiaries
Pride Offshore, Inc. (Delaware)
Pride International, Ltd. (British Virgin Islands)
Pride International, SRL (Argentina)
Forasub B.V. (Netherlands)
Pride Forasol S.A.S. (France)
Pride Foramer S.A.S. (France)
Twin Oaks Financial Ltd. (British Virgin Islands)
Servicios Especiales San Antonio S.A. (Argentina)
Pride Central America LLC (Delaware)
Pride Offshore International, LLC (Delaware)
Pride South America, Ltd. (British Virgin Islands)
Mexico Drilling Limited LLC (Delaware)
Amethyst Financial Company Ltd. (British Virgin Islands)
Westville Management Corporation (British Virgin Islands)
Schedule III-1
EXHIBIT A
OPINION OF COUNSEL FOR THE COMPANY
The opinion of the counsel for the Company, to be delivered pursuant
to Section 6(b) of the Underwriting Agreement, shall be 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 and has
the corporate power and authority to own and lease its properties and to
conduct its business as described in the Final Prospectus;
(ii) the Company has the corporate power and authority to enter into
and perform this Agreement and to issue, sell and deliver the Securities; this
Agreement has been duly authorized by all necessary corporate action on the
part of the Company and has been duly executed and delivered by the Company;
(iii) the authorized capital stock of the Company conforms as to legal
matters in all material respects to the description thereof contained in the
Final Prospectus.
(iv) the Securities have been duly authorized and, when issued and
delivered against payment of the purchase price therefor in accordance with
this Agreement, will be validly issued, fully paid and nonassessable and will
not be subject to preemptive or similar rights pursuant to Delaware law or the
Company's Certificate of Incorporation or Bylaws;
(v) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
Subsidiary or its property of a character required to be disclosed in the
Registration Statement which is not disclosed in the Final Prospectus;
(vi) the Registration Statement has become effective under the Act;
any required filing of any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that purpose have
been instituted or threatened by the Commission, and the Registration
Statement, at the Effective Time, and the Final Prospectus, as of its issue
date and on the Closing Date (except in each case, the financial statements,
the notes thereto and related schedules and other financial, numerical,
statistical or accounting data included or incorporated by reference therein or
omitted therefrom, as to which such counsel need express no opinion) appear on
their face to comply as to form in all material respects with the applicable
requirements of the Act, the Exchange Act and the respective rules thereunder;
(vii) the section of the Final Prospectus entitled "Stock Purchase
Agreement and Related Matters," insofar as it purports to constitute a summary
of agreements, fairly summarizes, in all material respects, the matters
referred to therein;
(viii) the Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds therefrom as
described in the Final Prospectus, will not be an "investment company" as
defined in the Investment Company Act;
Exhibit A-1
(ix) to the knowledge of such counsel, no consent, approval,
authorization, filing with or order of any court or governmental agency or body
is required to be obtained by the Company in connection with the sale by the
Company of the Securities to the Underwriters, except as may be required under
the Act or under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and such other
approvals (specified in such opinion) as have been obtained; and
(x) neither the issuance and sale by the Company of the Securities,
nor the performance of the Company's obligations pursuant to this Agreement,
will conflict with, result in a breach or violation of, or constitute a default
under (A) the Certificate of Incorporation and Bylaws of the Company, (B) the
terms of any indenture or other agreement or instrument to which the Company is
a party or by which it is bound that is material to the Company and its
subsidiaries considered as a whole and that (i) relates to indebtedness of the
Company or (ii) is filed or incorporated by reference as an exhibit to the
Company's Annual Report on Form 10-K for the year ended December 31, 2004, or
the Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
2005, (C) any statute, rule or regulation to which the Company or any
Subsidiary is a party or by which any of them is bound, or to which any of the
properties of the Company or any Subsidiary is subject, or (D) any order of any
court or governmental agency or body having jurisdiction over the Company or
any Subsidiary or any of its properties of which such counsel has knowledge;
provided that such counsel need express no opinion as to the application of any
state securities or Blue Sky laws or any anti-fraud law, rule or regulation.
In addition, counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent registered public accounting firm of the
Company, representatives of the Underwriters and counsel to the Underwriters at
which the contents of the Registration Statement and Final Prospectus were
discussed and, although such counsel did not independently verify such
information and is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and Final Prospectus (except to the extent set forth in
paragraphs (iii) and (vii) above), on the basis of the foregoing (relying as to
factual matters upon the statements of officers and other representatives of
the Company and state officials) no facts came to such counsel's attention that
led such counsel to believe that the Registration Statement (other than the
financial statements, the notes thereto and the auditor's reports thereon and
the related schedules and the other financial, numerical, statistical and
accounting data included or incorporated by reference therein, or omitted
therefrom, and the exhibits thereto, as to which such counsel need not comment)
as of its Effective Date contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Final Prospectus (other
than the financial statements, the notes thereto and the auditor's reports
thereon and the related schedules and the other financial, numerical,
statistical and accounting data included or incorporated by reference therein,
or omitted therefrom, and the exhibits thereto, as to which such counsel need
not comment) as of its issue date or on the Closing Date contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
Exhibit A-2
The opinion shall be limited to the federal laws of the United States
of America, the contract laws of the State of New York, the laws of the State
of Texas and the General Corporation Law of the State of Delaware.
Exhibit A-3
EXHIBIT B
OPINION OF XXXXX & XXXXXXX
The opinion of the counsel for the Company, to be delivered pursuant
to Section 6(d) of the Underwriters Agreement, shall be to the effect that:
(i) each of Xxxxxx Maritime Limited and Andre Maritime Ltd. (the
"Bahamian Subsidiaries") is duly incorporated, validly existing and in good
standing under the laws of The Bahamas and has full corporate power and
authority to own and lease its properties and to conduct its business as
described in the Final Prospectus; and
(ii) all the outstanding shares of capital of each Bahamian Subsidiary
have been duly and validly authorized and issued and are fully paid and
nonassessable and (A) all of the outstanding shares of the capital of Andre
Maritime Ltd. are beneficially owned by Sonamer Angola Ltd. and of Xxxxxx
Maritime Ltd. are beneficially owned by Sonamer Ltd. and (B) except for liens
and security interests relating to indebtedness described in the Final
Prospectus, such shares are not the subject to any recorded security interests,
claims, liens or encumbrances in The Bahamas.
The opinion shall be limited to the laws of The Bahamas.
Exhibit B-1
EXHIBIT C
OPINION OF BRONS & XXXXX
The opinion of the counsel for the Company, to be delivered pursuant
to Section 6(e) of the Underwriting Agreement, shall be to the effect that:
(i) each of Pride International S.R.L. and Servicios Especiales San
Antonio S.A. (the "South American Subsidiaries") has been duly organized and is
validly existing as a company in good standing under the laws of Argentina and
has the corporate power and authority to own and lease its properties and to
conduct its business in Argentina;
(ii) the South American Subsidiaries are duly qualified to do business
as foreign corporations and are in good standing under the laws of each
jurisdiction which requires such qualification except to the extent that the
failure to be so qualified or be in good standing would not have a Material
Adverse Effect; and
(iii) all the outstanding quotas of capital stock of the South
American Subsidiaries have been duly and validly authorized and are fully paid
and nonassessable, and, except as otherwise set forth in the Final Prospectus,
all outstanding quotas of capital stock of the South American Subsidiaries are
owned by the Company either directly or through nominees free and clear of any
perfected security interest and, to the knowledge of such counsel, any other
Lien.
The opinion shall be limited to the laws of the Republic of Argentina.
Exhibit C-1
EXHIBIT D
OPINION OF XXXX XXXX XXXXXXXXX
The opinion of the counsel for the Company, to be delivered pursuant
to Section 6(f) of the Underwriting Agreement, shall be to the effect that:
(i) each of Pride Forasol s.a.s. and Pride Foramer s.a.s. (the
"Forasol Subsidiaries") is a French societe par actions simplifiee duly
incorporated at the Registre du Commerce et des societes de Versailles France
and each Forasol Subsidiary is in good standing and validly existing under the
laws of the French Republic and each Forasol Subsidiary has full corporate
power and authority and currently benefits fully from its "personalite morale"
to own or lease its property and conduct its business as a legal person as
described in the Final Prospectus;
(ii) to such counsel's knowledge, each of the Forasol Subsidiaries is
duly qualified to do business directly or indirectly as a foreign corporation
or entity under the laws of each jurisdiction where it carries out its
business, and each of the Forasol Subsidiaries is currently in good standing in
the said jurisdiction under the said laws with all relevant permits and
authorization in force except where the absence of such permits or
authorizations would not have a Material Adverse Effect; and
(iii) all the outstanding shares of the capital stock of each Forasol
Subsidiary have been duly and are validly authorized and issued and are fully
paid up and nonassessable and, except as otherwise set forth in the Final
Prospectus, all such shares of capital stock of the Forasol Subsidiaries are at
the date of such opinion owned by the Company indirectly through wholly owned
subsidiaries free and clear of any perfected security interest, claim, lien or
encumbrance.
The opinion shall be limited to the laws of France.
Exhibit D-1
EXHIBIT E
OPINION OF W. XXXXXXX XXXXXX
The opinion of the counsel for the Company, to be delivered pursuant
to Section 6(g) of the Underwriting Agreement, shall be to the effect that:
(i) each of the Subsidiaries that has been organized under the laws of
a state of the United States (the "U.S. Subsidiaries") has been duly
incorporated or formed and is validly existing as a corporation or limited
liability company in good standing under the laws of its jurisdiction of
incorporation or formation and has the corporate or limited liability company
power and authority to own and lease its properties and to conduct its business
as described in the Final Prospectus;
(ii) each of the Company and the U.S. Subsidiaries is duly qualified
and is in good standing as a foreign corporation or limited liability company
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a Material Adverse
Effect;
(iii) all the outstanding shares of capital stock of each U.S.
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of each U.S. Subsidiary are owned by the
Company either directly or through wholly owned subsidiaries free and clear of
any perfected security interest and, to the knowledge of such counsel, any
other Lien;
(iv) neither the issuance and sale by the Company of the Securities,
nor the performance of the Company's obligations pursuant to this Agreement
will violate any of the provisions of the charter or by-laws (or similar
organizational documents) of the Company or any U.S. Subsidiary as in effect on
the date of the opinion;
(v) there is no current, pending or, to the knowledge of such counsel,
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any Subsidiary or
to which any of their respective property is subject, of a character required
to be disclosed in the Registration Statement which is not disclosed in the
Final Prospectus;
(vi) except as will not have a Material Adverse Effect, to the
knowledge of such counsel, each of the Company and its Subsidiaries has such
permits as are necessary to own, lease and operate its properties and to
conduct its business in the manner described in the Final Prospectus; to the
knowledge of such counsel, each of the Company and its Subsidiaries has
fulfilled and performed all of its material obligations with respect to such
permits and no event has occurred that allows, or after notice or lapse of time
would allow, revocation or termination thereof or results in any material
impairment of the rights of the holder of any such permit, subject in each case
to such qualifications as may be set forth in the Final Prospectus;
(vii) neither the issuance and sale by the Company of the Securities,
nor the performance of the Company's obligations pursuant to this Agreement
will (A) conflict with, result in a breach or violation of, or constitute a
default under the terms of any material indenture or other material agreement
or instrument known to such counsel to which the Company or any U.S. Subsidiary
is a
Exhibit E-1
party or bound, or constitute a default under, any statute, rule or regulation
known to such counsel to which any non-U.S. Subsidiary is a party or by which
any of them is bound, or to which any of the properties of any non-U.S.
Subsidiary is subject, or any order known to such counsel of any court or
governmental agency or body having jurisdiction over any non-U.S. Subsidiary or
any of its properties, except as will not have a Material Adverse Effect, or
(B) violate any of the provisions of the charter or bylaws of any non-U.S.
Subsidiary as in effect on the date of the opinion; and
(viii) to the knowledge of such counsel, no holder of any security of
the Company has the right to require registration of shares of Common Stock or
any other security of the Company as part of or under the Registration
Statement.
In addition, counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent registered public accounting firm of the
Company, representatives of the Underwriters and counsel to the Underwriters at
which the contents of the Registration Statement and Final Prospectus were
discussed and, although such counsel did not independently verify such
information and is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and Final Prospectus, on the basis of the foregoing
(relying as to factual matters upon the statements of officers and other
representatives of the Company and state officials) no facts came to such
counsel's attention that led such counsel to believe that the Registration
Statement (other than the financial statements, the notes thereto and the
auditor's reports thereon and the related schedules and the other financial,
numerical, statistical and accounting data included or incorporated by
reference therein, or omitted therefrom, and the exhibits thereto, as to which
such counsel need not comment) as of its Effective Date contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Final Prospectus (other than the financial statements, the notes
thereto and the auditor's reports thereon and the related schedules and the
other financial, numerical, statistical and accounting data included or
incorporated by reference therein, or omitted therefrom, and the exhibits
thereto, as to which such counsel need not comment) as of its issue date or on
the Closing Date contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
The opinion of W. Xxxxxxx Xxxxxx shall be limited to the laws of the
United States, the laws of the State of Texas, and the corporate and limited
liability company law of the State of Delaware. In rendering the opinions set
forth in paragraphs (i) and (ii) above, W. Xxxxxxx Xxxxxx may rely on the
opinion of other counsel of good standing whom he believes is reliable and who
is satisfactory to counsel for the Underwriters.
Exhibit E-2
