EXHIBIT 1.1
CAL DIVE INTERNATIONAL, INC.
__________ Shares
Common Stock
(No Par Value Per Share)
---------------
UNDERWRITING AGREEMENT
New York, New York
__________ ___, 1997
XXXXXXXX XXXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXXX & COMPANY INTERNATIONAL
As Representatives of the several
Underwriters named in Schedule I hereto
c/x Xxxxxxxx Xxxxxxxx & Co. Incorporated
Equitable Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Cal Dive International, Inc., a Minnesota corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell,
and certain shareholders of the Company (named in Schedule II attached hereto
the "Selling Shareholders") propose to sell, to the Underwriters named in
Schedule I hereto (the "Underwriters"), an aggregate of _______ shares of Common
Stock, no par value per share (the "Common Stock"). The ________ shares of
Common Stock to be sold by the Company and the ________ shares to be sold by the
Selling Shareholders are herein referred to as the "Firm Securities." In
addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional ________ shares of Common Stock (the "Option
Securities"), on the terms and for the purposes set forth in Section 2 hereof.
The Firm Securities and the Option Securities are herein collectively referred
to as the "Securities." Except as may be expressly set forth below, any
reference to you in this Agreement shall be solely in your capacity as the
Representatives of the several Underwriters (the "Representatives").
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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i. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) A registration statement on Form S-l (File No. 333-_____)
as amended by Amendment No.___ filed (the "Initial Registration
_____________________________Statement") in respect of the Shares
has been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each
of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if
any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto
or the Rule 462(b) Registration Statement, if any, has been issued
and no proceeding for that purpose has been initiated or threatened
by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant
to Rule 424(a) of the Rules and Regulations of the Commission under
the Act (the "Rules and Regulations"), is hereinafter called a
"Preliminary Prospectus;" the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof and deemed by virtue of Rule 430A under the Act to be
part of the Initial Registration Statement at the time it was
declared effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, each as
amended at the time such part of the registration statement became
effective, is hereinafter collectively called the "Registration
Statement"; such final prospectus, in the form first filed pursuant
to
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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Rule 424(b) under the Act, is hereinafter called the "Prospectus");
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the Rules
and Regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Xxxxxxxx Xxxxxxxx &
Co. Incorporated ("Xxxxxxxx Wertheim") expressly for use therein;
(iii) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration
Statement or Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations of the
Commission thereunder, and did not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto, and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; PROVIDED, HOWEVER, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Xxxxxxxx Xxxxxxxx
expressly for use therein;
(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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under the laws of the state of Minnesota, with power and authority
(corporate and other) to own its properties and to conduct its
business as described in the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases property, or conducts any business, so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction, except where the failure to so qualify would not have
a material adverse effect on the condition, financial or otherwise,
or the business affairs or prospects of the Company and its
subsidiaries taken as a whole, (such adverse effect to be
hereinafter referred to as a "Material Adverse Effect"); and each of
the Company's subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and to conduct its business as
described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases property, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such
jurisdiction, (except where the failure to so qualify would not have
a Material Adverse Effect);
(v) All of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non- assessable and are owned by the
Company free and clear of all liens, encumbrances, equities,
security interests, or claims; and there are no outstanding options,
warrants or other rights calling for the issuance of, and there are
no commitments, plans or arrangements to issue, any shares of
capital stock of any subsidiary or any security convertible or
exchangeable or exercisable for capital stock of any
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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subsidiary; except for the shares of stock of each subsidiary owned
by the Company, neither the Company nor any subsidiary owns,
directly or indirectly, any shares of capital stock of any
corporation or has any equity interest in any firm, partnership,
joint venture or other entity;
(vi) The Company has all corporate power and authority to
execute, deliver and perform its obligations under this Agreement;
the execution, delivery and performance by the Company of its
obligations under this Agreement have been duly and validly
authorized by all requisite corporate action of the Company; and
this Agreement constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with
its terms except as enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or
affecting the rights of creditors generally;
(vii) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, which loss or interference is
material to the Company and its subsidiaries, taken as a whole; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been, and
prior to the Time of Delivery (as defined in Section 4 hereof) there
will not be, any change in the capital stock (other than shares
issued pursuant to the exercise of employee stock options that the
Prospectus indicates are outstanding (the "Employee Option
Shares")), or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(viii) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except
such as are described or contemplated by the Prospectus, or such as
do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries, and any real property and
buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with
such exceptions as are not material and do not interfere with the
use made and proposed to be made of such real property and buildings
by the Company and its subsidiaries;
(ix) The Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement, and all
of the issued shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and non-
assessable, are free of any preemptive rights, rights of first
refusal or similar rights, were issued and sold in compliance with
the applicable Federal and state securities laws and conform in all
material respects to the description in the Prospectus; except as
described in the Prospectus, there are no outstanding options
warrants or other rights calling for the issuance of, and there are
no commitments, plans or arrangements to issue, any shares of
capital stock of the Company or any security convertible or
exchangeable or exercisable for capital stock of the Company;
(x) The Securities to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued, fully paid and
non-assessable, and will conform in all material respects to
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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the description thereof in the Prospectus and will be quoted on the
Nasdaq National Market as of the Effective Date;
(xi) The performance of this Agreement, the consummation of
the transactions herein contemplated and the issue and sale of the
Securities and the compliance by the Company with all the provisions
of this Agreement will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge, claim, or encumbrance upon, any of the property or assets of
the Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any
violation of the provisions of the Amended and Restated Articles of
Incorporation (the "Articles of Incorporation") or the By-Laws, in
each case as amended to the date hereof, of the Company or any of
its subsidiaries or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties;
and no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Securities or the
consummation of the other transactions contemplated by this
Agreement, except the registration under the Act of the Securities,
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities
or Blue Sky laws in connection with the purchase and distribution of
the Securities by the Underwriters;
(xii) There are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries or any of their
respective officers or
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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directors is a party or of which any property of the Company or any
of its subsidiaries is the subject, other than litigation or
proceedings incident to the business conducted by the Company and
its subsidiaries which will not individually or in the aggregate
have a Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened or contemplated by others;
(xiii) The Company and its subsidiaries have such licenses,
permits and other approvals or authorizations of and from
governmental or regulatory authorities ("Permits") as are necessary
under applicable law to own their respective properties and to
conduct their respective businesses in the manner now being
conducted and as described in the Prospectus; and the Company and
its subsidiaries have fulfilled and performed all of their
respective obligations with respect to such Permits, and no event
has occurred which allows, or after notice or lapse of time or both
would allow, revocation or termination thereof or result in any
other impairment of the rights of the holder of any such permits
where such revocation, termination or impairment would have a
Material Adverse Effect;
(xiv) Xxxxxx Xxxxxxxx LLP who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Registration
Statement and the Prospectus, are independent public accountants as
required by the Act and the Rules and Regulations of the Commission
thereunder;
(xv) The historical information underlying the estimates of
the reserves of the Company supplied by the Company to Xxxxxx &
Xxxxx, Ltd. ("Xxxxxx & Xxxxx"), independent petroleum engineers, for
the purposes of preparing the reserve reports of the Company
referenced in the Prospectus (the "Reserve
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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Report"), including, without limitation, production volumes, sales
prices for production, contractual pricing provisions under oil or
gas sales or marketing contracts or under hedging arrangements,
costs of operations and development, and working interest and net
revenue information relating to the Company's ownership interests in
properties, was true and correct in all material respects on the
date of such Reserve Report; the estimates of future capital
expenditures and other future exploration and development costs
supplied to Xxxxxx & Xxxxx were prepared in good faith and with a
reasonable basis; the information provided by Xxxxxx & Xxxxx for
purposes of preparing the Reserve Report was prepared in accordance
with customary industry practices; to the best of the Company's
knowledge, Xxxxxx & Xxxxx was, as of the date of the Reserve Report
prepared by it, and are, as of the date hereof, independent
petroleum engineers with respect to the Company; other than normal
production of reserves and intervening spot market product price
fluctuations, and except as disclosed in the Registration Statement
and the Prospectus, the Company is not aware of any facts or
circumstances that would result in a materially adverse change in
the reserves in the aggregate, or the aggregate present value of
future net cash flows therefrom, as described in the Prospectus and
as reflected in the Reserve Report; estimates of such reserves and
the present value of the future net cash flows therefrom as
described in the Prospectus and reflected in the Reserve Report
comply in all material respects to the applicable requirements of
the Rules and Regulations;
(xvi) The Company (A) is in compliance with any and all
applicable federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or waste, pollutants or contaminants
("Environmental Laws"), (B) has received all permits, licenses or
other approvals required of it under applicable Environmental Laws
to conduct its business and (C) is in compliance with all terms and
conditions of any such permit, license or approval,
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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except for such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals that would not, singularly or in the aggregate, have a
Material Adverse Effect. There has been no storage, disposal,
generation, transportation, handling or treatment of hazardous
substances or solid wastes by the Company (or to the knowledge of
the Company, any of its predecessors in interest) at, upon or from
any of the property now or previously owned or leased by the Company
in violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require remedial
action by the Company under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any
violation or remedial action which would not result in, or which
would not be reasonably likely to result in, singularly or in the
aggregate with all such violations and remedial actions, a Material
Adverse Effect; there has been no spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property
or into the environment surrounding such property of any solid
wastes or hazardous substances due to or caused by the Company,
except for any such spill, discharge, leak, emission, injection,
escape, dumping or release which would not result in or would not be
reasonably likely to result in, singularly or in the aggregate with
all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a Material Adverse Effect; and the terms
"hazardous substances" and "solid wastes" shall have the meanings
specified in any applicable local, state and federal laws or
regulations with respect to environmental protection;
(xvii) The consolidated financial statements and schedules of
the Company and its subsidiaries included in the Registration
Statement and the Prospectus present fairly the financial condition,
the results of operations and the cash flows of the Company and its
subsidiaries as of the dates and for the periods therein specified
in conformity with
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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generally accepted accounting principles consistently applied
throughout the periods involved, except as otherwise stated therein;
and the other financial and statistical information and data set
forth in the Registration Statement and the Prospectus is accurately
presented and, to the extent such information and data is derived
from the financial statements and books and records of the Company
and its subsidiaries, is prepared on a basis consistent with such
financial statements and the books and records of the Company and
its subsidiaries; no other financial statements or schedules are
required to be included in the Registration Statement and the
Prospectus;
(xviii) There are no statutes or governmental regulations, or
any contracts or other documents that are required to be described
in or filed as exhibits to the Registration Statement which are not
described therein or filed as exhibits thereto; and all such
contracts to which the Company or any subsidiary is a party have
been duly authorized, executed and delivered by the Company or such
subsidiary, constitute valid and binding agreements of the Company
or such subsidiary and are enforceable against the Company or such
subsidiary in accordance with the terms thereof;
(xix) The Company and its subsidiaries own or possess adequate
patent rights or licenses or other rights to use patent rights,
inventions, trademarks, service marks, trade names, copyrights,
technology and know-how necessary to conduct the general business
now or proposed to be operated by them as described in the
Prospectus; neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted
rights of others with respect to any patent, patent rights,
inventions, trademarks, service marks, trade names, copyrights,
technology or know-how which, singularly or in the aggregate, would
have a Material Adverse Effect;
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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(xx) Neither the Company nor any of its subsidiaries are in
violation of any term or provision of its Articles of Incorporation
or By-Laws (or similar corporate constituent documents), in each
case as amended to the date hereof; nor are the Company or any of
its subsidiaries in violation of any law, ordinance, administrative
or governmental rule or regulation applicable to the Company or any
of its subsidiaries, or of any decree of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries where such violation would have a Material Adverse
Effect;
(xxi) No default exists, and no event has occurred which with
notice or lapse of time, or both, would constitute a default in the
due performance and observance of any term, covenant or condition of
any indenture, mortgage, deed of trust, bank loan or credit
agreement, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which any of
them or their respective properties is bound or may be affected
where such default would have a Material Adverse Effect;
(xxii) The Company and its subsidiaries have timely filed all
necessary tax returns and notices and have paid all federal, state,
county, local and foreign taxes of any nature whatsoever for all tax
years through December 31, 1995, to the extent such taxes have
become due. The Company has no knowledge, or any reasonable grounds
to know, of any tax deficiencies which would have a Material Adverse
Effect; the Company and its subsidiaries have paid all taxes which
have become due, whether pursuant to any assessments, or otherwise,
and there is no further liability (whether or not disclosed on such
returns) or assessments for any such taxes, and no interest or
penalties accrued or accruing with respect thereto, except as may be
set forth or adequately reserved for in the financial statements
included in the Registration Statement; the amounts currently set up
as provisions for taxes or otherwise by the Company and its
subsidiaries on their books and records are sufficient
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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for the payment of all their unpaid federal, foreign, state, county
and local taxes accrued through the dates as of which they speak,
and for which the Company and its subsidiaries may be liable in
their own right, or as a transferee of the assets of, or as
successor to any other corporation, association, partnership, joint
venture or other entity;
(xxiii) The Company will not, during the period of 180 days
after the date hereof except pursuant to this Agreement, offer,
sell, contract to sell or otherwise dispose of any capital stock of
the Company (or securities convertible into, or exchangeable for,
capital stock of the Company), directly or indirectly, without the
prior written consent of the Representatives of the Underwriters
except for grants under the Company's stock option plan and the
issuance of stock upon the exercise of any options granted
thereunder;
(xxiv) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions
are recorded as necessary to permit preparation of 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 general
or specific 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 differences;
(xxv) Neither the Company nor any of its subsidiaries is in
violation of any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants, nor any federal or state law relating to
discrimination in the hiring, promotion or paying of employees nor
any applicable
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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federal or state wages and hours laws, nor any provisions of the
Employee Retirement Income Security Act of 1974, as amended, or the
Rules and Regulations promulgated thereunder, where such violation
would have a Material Adverse Effect;
(xxvi) None of the Company or its subsidiaries, or its
officers, directors, employees or agents has used any corporate
funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity, or made any
unlawful payment of funds of the Company or any subsidiary or
received or retained any funds in violation of any law, rule or
regulation;
(xxvii) The Company is not and, after giving effect to the
offering and sale of the Securities, will not 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;
(xxviii) Neither the Company nor any of its subsidiaries is
party to any union or collective bargaining agreements, and no labor
disturbance, strike or slowdown exists, or, to the Company's
knowledge, is threatened, by or involving any employees of the
Company or its subsidiaries, in any such case that is or would be
reasonably likely to have a Material Adverse Effect;
(xxix) The statements set forth in the Prospectus under the
caption "Description of Capital Stock," insofar as they purport to
constitute a summary of the terms of the Common Stock, are, in all
material respects, accurate and complete;
(xxx) The Company and any of its subsidiaries that owns the
marine vessels described in the Prospectus (the "Vessels"), which
operate in United States coastwise trade, are and at all times have
been citizens of the United States within the meaning of Section 2
of the Shipping Act of 1916, as amended,
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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46 U.S.C. ss.802 (the "Shipping Act"), and qualified to engage in
coastwise trade. At no time during the Company or any subsidiary's
ownership of the Vessels have any of the Vessels been sold,
chartered or otherwise transferred to any person or entity in
violation of any applicable laws, rules or regulations. Except as
set forth of Schedule III, each Vessel has a clean certificate of
inspection from the United States Coast Guard and an American Bureau
of Shipping load line certificate where applicable, in each case
free of reported or reportable exceptions or notations of record;
(xxxi) The Company and each of 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
businesses in which they are engaged; neither the Company nor any
such subsidiary has been refused any insurance coverage sought or
applied for; and except as described in the Prospectus neither the
Company nor any such subsidiary has any reason to believe that it
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 business at a
cost that would not have a Material Adverse Effect;
(xxxii) There are no holders of securities of the Company,
who, by reason of the filing of the Registration Statement, have the
right (and have not waived such right) to require the Company to
register under the Act, or to include in the Registration Statement,
securities held by them; and
(xxxiii) The Company has not distributed and, prior to the
later of (i) any Option Securities Delivery Date and (ii) the
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 or any
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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amendment thereto, any Preliminary Prospectus or the Prospectus or
any amendment or supplement thereto, or other materials, if any,
permitted by the Act.
1.A. Each of the Selling Shareholders severally and not jointly represents
and warrants to, and agrees with, each of the Underwriters that:
(a) Such Selling Shareholder has all requisite power, authority,
authorizations, approvals, orders and consents to enter into this
Agreement and to carry out the provisions and conditions hereof and in the
event that such Selling Shareholder is a corporation, such Selling
Shareholder has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation; in the event that such Selling Shareholder is a limited
partnership, such Selling Shareholder has been duly formed and is validly
existing as a limited partnership in good standing under the laws of the
jurisdiction of its formation;
(b) Each of this Agreement, the Custody Agreement (a form of which
is attached hereto as Exhibit A) and the Power of Attorney (a form of
which is attached hereto as Exhibit B) has been duly authorized, executed
and delivered by or on behalf of such Selling Shareholder and constitutes
a legal, valid and binding agreement of such Selling Shareholder and is
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization or other similar
laws relating to or affecting the rights of creditors generally;
(c) On the closing date for the Securities, all stock transfer or
other taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Securities to be sold by such
Selling Shareholder to the Underwriters will have been fully paid or
provided for by such Selling Shareholder and all laws imposing such taxes
will have been fully complied with;
(d) The performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of
such Selling Shareholder pursuant to the terms or provisions of, or result
in a breach of any of the terms or provisions of, or constitute a default
under, or result in the acceleration of any obligation under the articles
of association or charter or By-laws of such Selling Shareholder, if
applicable, or any contract or other agreement to which such Selling
Shareholder is a party or bound, or under any law, order, statute,
regulation, consent or memorandum of understanding applicable to such
Selling Shareholder of any court, regulatory body, administrative agency,
governmental body or arbitrator having
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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jurisdiction over such Selling Shareholder or the property of such Selling
Shareholder;
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Selling Shareholder of the transactions on its part contemplated hereby,
except such as have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution by the Underwriters of the Shares to be sold
by the Selling Shareholder or such as may be required by the National
Association of Securities Dealers, Inc. (the "NASD");
(f) To the best of such Selling Shareholder's knowledge, as of the
date hereof, and as of each of the Time of Delivery and the Option
Securities Delivery Date (as defined in Section 4 hereof), the
Registration Statement and the Prospectus did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading;
(g) The Selling Shareholder has not distributed and, prior to the
later to occur of (i) the Time of Delivery, (ii) the Option Securities
Delivery Date or (iii) completion of the distribution of the Securities,
will not distribute without your prior written consent any offering
material in connection with the offering and sale of the Securities other
than as permitted by the Act; and
(h) The Selling Shareholder now has, and at each of the Time of
Delivery and the Option Securities Delivery Date will have, good and valid
title to the Securities to be sold by such Selling Shareholder hereto,
free and clear of all security interests, liens, encumbrances, equities or
other claims, and, upon delivery of and payment for such Securities, the
Selling Shareholder will deliver to the Underwriter, good and valid title
to such Securities, free and clear of all security interests, liens,
encumbrances, equities or other claims.
ii. Subject to the terms and conditions herein set forth,
the Company agrees to issue and sell, and the Selling
Shareholders agree to sell, to the several Underwriters an
aggregate of ______ Firm Securities (_______ shares of such
Firm Securities will be sold by the Company and ________
shares of such Firm Securities will be sold by the Selling
Shareholders), and each of the Underwriters agrees to purchase
from the Company and the Selling Shareholders, at a purchase
price of $_____ per share, the respective aggregate number of
Firm Securities determined in the manner set forth below. The
obligation of each Underwriter to the Company and the Selling
Shareholders shall be to purchase that portion of the number
of shares of Common Stock to be sold by the Company and the
Selling Shareholders pursuant to this Agreement as the number
of Firm Securities set forth
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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opposite the name of such Underwriter on Schedule I bears to
the total number of Firm Securities to be purchased by the
Underwriters pursuant to this Agreement, in each case adjusted
by you such that no Underwriter shall be obligated to purchase
Firm Securities other than in 100 share amounts. In making
this Agreement, each Underwriter is contracting severally and
not jointly.
In addition, subject to the terms and conditions herein set forth, the
Company and the Selling Shareholders agree to issue and sell to the
Underwriters, as required (for the sole purpose of covering over-allotments in
the sale of the Firm Securities), up to ________ Option Securities at the
purchase price per share of the Firm Securities being sold by the Company and
Selling Shareholders as stated in the preceding paragraph (with any Option
Securities sold to the Underwriters pursuant to this paragraph being sold on a
pro rata basis by the Company, on the one hand, and the Selling Shareholders
collectively, on the other based on the number of shares of Firm Securities sold
by the Company and the Selling Shareholders, respectively). The right to
purchase the Option Securities may be exercised by your giving 48 hours' prior
written or telephonic notice (subsequently confirmed in writing) to the Company
of your determination to purchase all or a portion of the Option Securities.
Such notice may be given at any time within a period of 30 days following the
date of this Agreement. Option Securities shall be purchased severally for the
account of each Underwriter in proportion to the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule I hereto. No Option
Securities shall be delivered to or for the accounts of the Underwriters unless
the Firm Securities shall be simultaneously delivered or shall theretofore have
been delivered as herein provided. The respective purchase obligations of each
Underwriter shall be adjusted by you so that no Underwriter shall be obligated
to purchase Option Securities other than in 100 share amounts. The Underwriters
may cancel any purchase of Option Securities at any time prior to the Option
Securities Delivery Date by giving written notice of such cancellation to the
Company.
iii. Upon the authorization by you to release the Firm
Shares, the several Underwriters propose to offer the Firm
Securities for sale upon the terms and conditions set forth in
the Prospectus.
iv. Certificates in definitive form for the Firm Securities
to be purchased by each Underwriter hereunder shall be
delivered by or on behalf of the Company and the Selling
Shareholders to you for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer, payable in same-day
funds to the order of the Company and the Selling
Shareholders, as appropriate, for the purchase price of the
Firm Securities being sold by the Company and the Selling
Shareholders at the office of Xxxxxxxx Xxxxxxxx & Co.
Incorporated, Equitable Center, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, at 9:30 a.m., New York City time, on __________ ___,
1997, or at such other time, date and place as you and the
Company may agree upon in writing, such time and date being
herein called the "Time of Delivery."
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-18-
Certificates in definitive form for the Option Securities to be purchased
by each Underwriter hereunder shall be delivered by or on behalf of the Company
and the Selling Shareholders to you for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price thereof by
certified or official bank check or checks, payable in New York Clearing House
funds, to the order of the Company, for the purchase price of the Option
Securities, in New York, New York, at such time and on such date (not earlier
than the Time of Delivery nor later than ten business days after giving of the
notice delivered by you to the Company with reference thereto) and in such
denominations and registered in such names as shall be specified in the notice
delivered by you to the Company with respect to the purchase of such Option
Securities. The date and time of such delivery and payment are herein sometimes
referred to as the "Option Securities Delivery Date." The obligations of the
Underwriters shall be subject, in their discretion, to the condition that there
shall be delivered to the Underwriters on the Option Securities Delivery Date
opinions and certificates, dated such Option Securities Delivery Date, referring
to the Option Securities, instead of the Firm Securities, but otherwise to the
same effect as those required to be delivered at the Time of Delivery pursuant
to Sections 7(d), 7(e), 7(f), 7(g), 7(h) and 7(k).
Certificates for the Firm Securities and the Option Securities so to be
delivered will be in good delivery form, and in such denominations and
registered in such names as you may request not less than 48 hours prior to the
Time of Delivery and the Option Securities Delivery Date, respectively. Such
certificates will be made available for checking and packaging in New York, New
York, at least 24 hours prior to the Time of Delivery and the Option Securities
Delivery Date.
v. The Company covenants and agrees with each of the
Underwriters:
(i) To prepare the Prospectus in a form approved by you
and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the
second business day following the execution and delivery of
this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish you with copies thereof; to advise
you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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preventing or suspending the use of any Preliminary Prospectus
or prospectus, of the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus
or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action as you
may request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution, PROVIDED that in connection therewith the
Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process
in any jurisdiction;
(iii) Prior to 10:00 a.m., New York City time, on the
New York Business Day next succeeding the date of this
Agreement and from time to time, to furnish the Underwriters
with copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery
of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the
Shares and if at such time any event shall have occurred 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 in order to make the
statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-20-
necessary during such period to amend or supplement the
Prospectus in order to comply with the Act to notify you and
upon your request to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many
copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver
a prospectus in connection with sales of any of the Shares at
any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as
many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(iv) That it has caused the Securities to be included
for quotation on the Nasdaq National Market as of the
Effective Date; and
(v) To file with the Commission such reports on Form SR
as may be required pursuant to Rule 463 under the Act.
5.A. Each of the Selling Shareholders covenants with each of the
Underwriters as follows:
(a) Such Selling Shareholder will not at any time, directly or
indirectly, take any action intended, or which might reasonably be
expected, to cause or result in, or which will cause, stabilization of the
price of the shares of Common Stock to facilitate the sale or resale of
any of the Securities in connection with the Offering.
(b) As soon as such Selling Shareholder is advised thereof, such
Selling Shareholder will advise the Underwriters and confirm such advice
in writing, (1) of receipt by such Selling Shareholder, or by any
representative of the Selling Shareholder, of any communication from the
Commission relating to the Registration Statement, the Prospectus or any
Preliminary Prospectus, or any notice or order of the Commission relating
to the Company or such Selling Shareholder in connection with the
transactions contemplated by this Agreement and (2) of the happening of
any event during the period from and after the Effective Date that in the
judgment of such Selling Shareholder makes any statement made in the
Registration Statement or the Prospectus untrue or that requires the
making of any changes in the Registration
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-21-
Statement or the Prospectus in order to make the statements therein, in
light of the circumstances in which they were made, not misleading.
(c) Such Selling Shareholder will not, for a period of 180 days
following the date of the Prospectus, without prior written consent of the
Underwriters, offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, any other shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock.
vi. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid:
the fees, disbursements and expenses of counsel and
accountants for the Company, and all other expenses, in
connection with the preparation, printing and filing of the
Registration Statement and the Prospectus and amendments and
supplements thereto and the furnishing of copies thereof,
including charges for mailing, air freight and delivery and
counting and packaging thereof and of any Preliminary
Prospectus and related offering documents to the Underwriters
and dealers; the cost of copying and distributing this
Agreement, the Agreement Among Underwriters, the Selling
Agreement, communications with the Underwriters and selling
group and the Preliminary and Supplemental Blue Sky Memoranda
and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; all expenses in
connection with the qualification of the Securities for
offering and sale under securities laws as provided in Section
5(b) hereof, including filing and registration fees and the
fees, reasonable disbursements and expenses for counsel for
the Underwriters in connection with such qualification and in
connection with Blue Sky surveys or similar advice with
respect to sales; the filing fees incident to securing any
required review by the NASD of the terms of the sale of the
Securities; all fees and expenses in connection with quotation
of the Securities on the Nasdaq National Market; and all other
costs and expenses incident to the performance of their
obligations hereunder which are not otherwise specifically
provided for in this Section 6, including the fees of the
Company's Transfer Agent and Registrar, the cost of any stock
issue or transfer taxes on the sale of the Securities to the
Underwriters, the cost of the Company's personnel and other
internal costs, the cost of printing and engraving the
certificates representing the Securities and all expenses and
taxes incident to the sale and delivery of the Securities to
be sold by the Company to the Underwriters hereunder. It is
understood, however, that, except as provided in this Section
6, Section 8 and Section 11 hereof, the Underwriters will pay
all their own costs and expenses, including the fees of their
counsel, stock transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected
with any offers they may make.
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-22-
vii. The obligations of the Underwriters hereunder shall be
subject, in their discretion, to the condition that all
representations and warranties and other statements of the
Company and the Selling Shareholders herein are, at and as of
the Time of Delivery, true and correct, the condition that the
Company and the Selling Shareholders shall have performed all
their obligations hereunder theretofore to be performed, and
the following additional conditions:
(i) The Registration Statement shall have become
effective, and you shall have received notice thereof not
later than 10:00 p.m., New York City time, on the date of
execution of this Agreement, or at such other time as you and
the Company may agree; if required, the Prospectus shall have
been filed with the Commission in the manner and within the
time period required by Rule 424(b); no stop order suspending
the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall
have been complied with to your reasonable satisfaction;
(ii) All corporate proceedings and related legal and
other matters in connection with the organization of the
Company and the registration, authorization, issue, sale and
delivery of the Securities shall have been reasonably
satisfactory to Xxxxxx & Xxxxxx L.L.P., counsel to the
Underwriters, and Xxxxxx & Xxxxxx L.L.P. shall have been
timely furnished with such papers and information as they may
reasonably have requested to enable them to pass upon the
matters referred to in this subsection;
(iii) You shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact or
omits to state a fact which in your judgment is in either case
material and in the case of an omission is required to be
stated therein or is necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading;
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-23-
(iv) Robins Xxxxxx Xxxxxx & Xxxxxx L.L.P. ("Robins
Xxxxxx"), counsel to the Company, shall have furnished to you
their written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
1) The Company has been duly and validly incorporated
and is validly existing as a corporation in good standing
under the laws of the state of Minnesota, and is qualified to
do business and is in good standing in each jurisdiction in
which its ownership or leasing of properties requires such
qualification or the conduct of its business requires such
qualification (except where the failure to so qualify would
not have a Material Adverse Effect); and the Company has all
necessary corporate power and all material governmental
authorizations, permits and approvals required to own, lease
and operate its properties and conduct its business as
described in the Prospectus;
2) Each of the Company's subsidiaries has been duly and
validly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, and is qualified to do business and is in good
standing in each jurisdiction in which its ownership or
leasing of properties requires such qualification or the
conduct of its business requires such qualification (except
where the failure to so qualify would not have a Material
Adverse Effect); and each such subsidiary has all necessary
corporate power and all material governmental authorizations,
permits and approvals required to own, lease and operate its
properties and to conduct its business as described in the
Prospectus;
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-24-
3) All the outstanding shares of capital stock of each
of the Company's subsidiaries have been duly authorized and
are validly issued and outstanding, are fully paid and
non-assessable, are owned by the Company of record and to the
best knowledge of such counsel, (A) beneficially and (B) free
and clear of all liens, encumbrances, equities, security
interests or claims of any nature whatsoever; and neither the
Company nor any of its subsidiaries has granted any
outstanding options, warrants or commitments with respect to
any shares of its capital stock, whether issued or unissued,
except as otherwise described in the Prospectus;
4) The Company has an authorized capitalization as set
forth in the Registration Statement and all of the issued
shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and
non-assessable; are free of any preemptive rights, and were
issued and sold in compliance with all applicable Federal and
state securities laws; except as described in the Prospectus,
to the knowledge of such counsel, there are no outstanding
options, warrants or other rights calling for the issuance of,
and there are no commitments, plans or arrangements to issue,
any shares of capital stock of the Company; the Securities
being sold by the Company have been duly and validly
authorized and, when duly countersigned by the Company's
Transfer Agent and Registrar and issued, delivered and paid
for in accordance with the provisions of the Registration
Statement and this Agreement, will be duly and validly issued,
fully paid and non-assessable; the Securities conform to the
description thereof in the Prospectus; the Securities have
been duly authorized for quotation on the Nasdaq National
Market, as of the Effective Date; and
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-25-
the certificates for the Securities are in valid and
sufficient form and comply with all applicable statutory
requirements, all applicable requirements of the Articles of
Incorporation and By-laws of the Company and the requirements
of the Nasdaq National Market;
5) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries or any of their
respective officers or directors is a party or of which any
property of the Company or any of its subsidiaries is the
subject which, if resolved against the Company or any of its
subsidiaries or any of their respective officers or directors,
individually, or to the extent involving related claims or
issues, in the aggregate, is of a character required to be
disclosed in the Prospectus;
6) This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the rights of creditors generally and
by general principles of equity and, with respect to Section 8
of this Agreement, by public policy under federal and state
securities laws;
7) The Company has full corporate power and authority to
execute, deliver and perform this Agreement, and the
execution, delivery and performance of this Agreement, the
consummation of the transactions herein contemplated and the
issue and sale of the Securities and the compliance by the
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-26-
Company with all the provisions of this Agreement will not
conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge, claim or
encumbrance upon, any of the property or assets of the Company
or any of its subsidiaries pursuant to, the terms of any
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in
any violation of the provisions of the Articles of
Incorporation or the By-Laws, in each case as amended, of the
Company or any of its subsidiaries, or any statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
8) No consent, approval, authorization, order,
registration or qualification of or with any court or any
regulatory authority or other governmental body is required
for the issue and sale of the Securities or the consummation
of the other transactions contemplated by this Agreement,
except such as have been obtained under the Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign
securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
9) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is currently in violation
of its Articles of Incorporation or By-Laws or in
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-27-
default under, any indenture, mortgage, deed of trust, lease,
bank loan or credit agreement or any other agreement or
instrument of which such counsel has knowledge to which the
Company or any of its subsidiaries is a party or by which any
of them or any of their property may be bound or affected (in
any respect that is material in light of the financial
condition of the Company and its subsidiaries, taken as a
whole);
10) There are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or
transfer of, any Securities pursuant to the Company's Articles
of Incorporation or By-Laws (except as provided in the
Company's Articles of Incorporation with respect to ownership
of Common Stock by non-U.S. citizens), in each case as amended
to the date hereof, or any agreement or other instrument known
to such counsel; and no holders of securities of the Company
have rights to the registration thereof under the Registration
Statement or, if any such holders have such rights, such
holders have waived such rights;
11) To the extent summarized therein, all contracts and
agreements summarized in the Registration Statement and the
Prospectus are fairly summarized therein, conform in all
material respects to the descriptions thereof contained
therein, and, to the extent such contracts or agreements or
any other material agreements are required under the Act or
the Rules and Regulations thereunder to be filed, as exhibits
to the Registration Statement, they are so filed; and such
counsel does not know of any contracts or other documents
required to be summarized or disclosed in the Prospectus or to
be so filed as an exhibit to the Registration Statement, which
have not been so summarized or disclosed, or so filed;
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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12) All descriptions in the Prospectus of statutes,
regulations or legal or governmental proceedings are fair
summaries thereof and fairly present the information required
to be shown with respect to such matters; and
13) The Registration Statement has become effective
under the Act, the Prospectus has been filed in accordance
with Rule 424(b) of the Rules and Regulations of the
Commission under the Act, including the applicable time
periods set forth therein, or such filing is not required and,
to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been
instituted or are pending or threatened under the Act, and the
Registration Statement, the Prospectus and each amendment or
supplement thereto, as of their respective effective or issue
dates, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations
thereunder; it being understood that such counsel need express
no opinion as to the financial statements and schedules or
other financial data contained in the Registration Statement
or the Prospectus.
Such counsel shall also state that nothing has come to such
counsel's attention that would lead such counsel to believe that
either the Registration Statement or any amendment or supplement
thereto, at the time such Registration Statement or amendment or
supplement became effective, or the Prospectus or any amendment or
supplement thereto, as of its date and as of the Time of Delivery,
contains or contained any untrue statement of material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering their opinions set forth in Section 7(d) above,
such counsel may rely, to the extent deemed advisable by such
counsel, (a) as to factual matters, upon certificates of public
officials and officers of the Company, and (b) as to the laws of
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-29-
any jurisdiction other than the United States, the state of New York
and the state of Minnesota, on opinions of counsel (PROVIDED,
HOWEVER, that you shall have received a copy of each of such
opinions which shall be dated the Time of Delivery, addressed to you
or otherwise authorizing you to rely thereon, and Robins Xxxxxx in
its opinion to you delivered pursuant to this subsection, shall
state that such counsel are satisfactory to them and Robins Xxxxxx
has no reason to believe that the Underwriters and they are not
justified to so rely);
(v) Robins Xxxxxx (or other law firm acceptable to the
Underwriters), shall have furnished to you their written opinion,
dated the Time of Delivery, in form and substance satisfactory to
you, to the effect that:
1) Each of this Agreement, the Power of Attorney and the
Custody Agreement has been duly authorized, executed and
delivered by or on behalf of each of the Selling
Shareholders and constitutes a legal, valid and binding
agreement of each Selling Shareholder.
2) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation by any Selling Shareholder of the
transactions on its part contemplated by this Agreement
in connection with the Securities to be sold by any
Selling Shareholder hereunder, except such as have been
obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with
the purchase and distribution of such Securities by the
Underwriters; and
3) Upon purchase of the Securities to be sold by the
Selling Shareholders as provided in this Agreement, each
of the Underwriters (assuming that it is a bona fide
purchaser within the meaning of the Uniform Commercial
Code) will acquire good and valid title to such
Securities, free and clear of all security interests,
liens, encumbrances, equities or other claims.
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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Such counsel may rely upon certificates of the Selling
Shareholders. The opinions of such counsel relate solely
to, are based solely upon and are limited exclusively to
the laws of the state of Minnesota and the state of New
York and the laws of the United States of America, to
the extent applicable.
(vi) Xxxxxx & Xxxxx, such firm constituting independent
petroleum engineering consultants (the "Engineering
Consultants"), shall have delivered to you on the date of this
Agreement a letter (the "Reserve Letter") and also on the
Closing Date a letter dated the Closing Date, in each case in
form and substance reasonably satisfactory to you and
substantially in the form attached hereto as Annex III,
stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective
dates as of which specified information with respect to the
oil and gas reserves is given or incorporated in the
Prospectus as of the date not more than five days prior to the
date of such letter), the conclusions and findings of such
firm with respect to the oil and gas reserves of the Company;
(vii) Xxxxxx & Xxxxxx L.L.P., counsel to the Underwriters,
shall have furnished to you their written opinion or opinions,
dated the Time of Delivery, in form and substance satisfactory
to you, with respect to the incorporation of the Company, the
validity of the Securities, the Registration Statement, the
Prospectus and other related matters as you may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to
pass upon such matters;
(viii) At the time this Agreement is executed and also at
the Time of Delivery, Xxxxxx Xxxxxxxx LLP shall have
furnished to you a letter or letters, dated the date of this
Agreement and the Time of Delivery, in form and substance
satisfactory to you, to the effect, that:
1) They are independent accountants with respect to the
Company and its subsidiaries within the meaning of the
Act and the
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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applicable published Rules and Regulations thereunder;
2) In their opinion the consolidated financial statements
of the Company and its subsidiaries (including the
related schedules and notes) included in the
Registration Statement and Prospectus and covered by
their reports included therein comply as to form in all
material respects with the applicable accounting
requirements of the Act and the published Rules and
Regulations thereunder;
3) On the basis of specified procedures as of a specified
date not more than five days prior to the date of their
letter (which procedures do not constitute an
examination made in accordance with generally accepted
auditing standards), consisting of a reading of the
latest available unaudited interim consolidated
financial statements of the Company and its
subsidiaries, a reading of the latest available minutes
of any meeting of the Board of Directors and
stockholders of the Company and its subsidiaries since
the date of the latest audited financial statements
included in the Prospectus, inquiries of officials of
the Company and its subsidiaries who have responsibility
for financial and accounting matters, and such other
procedures or inquiries as are specified in such letter,
nothing came to their attention that caused them to
believe that:
(A) The unaudited consolidated condensed financial
statements of the Company and its subsidiaries included in the
Prospectus do not comply in form in all material respects with
the applicable accounting requirements of the Act and the
Rules and Regulations promulgated thereunder or are not
presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with
that of the audited consolidated financial statements included
in the Registration Statement and the Prospectus;
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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(B) as of a specified date not more than five days prior
to the date of their letter, there was any change in the
capital stock, or the long-term debt or subordinated debt of
the Company and its subsidiaries on a consolidated basis, or
any decrease in total assets, total current assets or
stockholders' equity or other items specified by the
Representatives, of the Company and its subsidiaries on a
consolidated basis, each as compared with the amounts shown on
the __________ ___, 1997 balance sheet included in the
Registration Statement and the Prospectus, except in each case
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or such other changes,
decreases or increases which are described in their letter and
which do not, in the sole judgment of the Representatives,
make it impractical or inadvisable to proceed with the
purchase and delivery of the Securities as contemplated by the
Registration Statement; and
(C) for the period from ___________ ___, 1997 to a
specified date not more than five days prior to the date of
such letter, there was any decrease, as compared with the
corresponding period of the preceding fiscal year, in the
following consolidated amounts: total revenues, revenues less
direct operating expenses, income (loss) before income taxes,
net income (loss) or net income (loss) per average common
share outstanding, except in all instances for decreases which
the Registration Statement discloses have occurred or may
occur; or such other decreases which are described in their
letter and which do not, in the sole judgment of the
Representatives, make it impractical or inadvisable to proceed
with the purchase and delivery of the Securities as
contemplated by the Registration Statement; and
4) in addition to the examination referred to in their
reports included in the Registration Statement and the
Prospectus and the limited procedures referred to in
clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial
information specified by the Representatives, which are
derived from the general accounting records of the
Company and its subsidiaries which appear in the
Prospectus, or in Part II of, or in exhibits and
schedules to, the Registration Statement, and have
compared such amounts and financial information with the
accounting records of the Company and its subsidiaries,
and have found them to be in agreement and have proved
the
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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mathematical accuracy of certain specified percentages.
(ix) Neither the Company nor any of its sub
sidiaries shall have sustained since the date of the
latest audited financial statements included in the
Prospectus, any loss or interference with its business
from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree; and
since the respective dates as of which information is
given in the Prospectus, there shall not have been any
change in the capital stock (other than shares issued
pursuant to the exercise of Employee Option Shares) or
short-term debt or long-term debt (excluding changes in
the amount of indebtedness outstanding under the
Company's Revolving Credit Agreement (as defined in the
Registration Statement) incurred for working capital
purposes) of the Company or any of its subsidiaries nor
any change or any development involving a prospective
change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case is in
your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus;
(x) Between the date hereof and the Time of
Delivery there shall have been no declaration of war by
the Government of the United States; at the Time of
Delivery there shall not have occurred any material
adverse change in the financial or securities markets in
the United States or in political, financial or economic
conditions in the United States or any outbreak or
material escalation of hostilities or other calamity or
crisis, the effect of which is such as to make it, in
the judgment of the Representatives, impracticable to
market the Securities or to enforce contracts for the
resale of Securities and no event shall
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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have occurred resulting in (i) trading in securities
generally on the New York Stock Exchange or in the
Common Stock on the principal securities exchange or
market in which the Common Stock is listed or quoted
being suspended or limited or minimum or maximum prices
being generally established on such exchanges or market,
or (ii) additional material governmental restrictions,
not in force on the date of this Agreement, being
imposed upon trading in securities generally by the New
York Stock Exchange or in the Common Stock on the
principal securities exchange or market in which the
Common Stock is listed or quoted or by order of the
Commission or any court or other governmental authority,
or (iii) a general banking moratorium being declared by
either Federal or New York authorities;
(xi) The Company shall have furnished or caused to
be furnished to you at the Time of Delivery certificates
signed by the chief executive officer and the chief
financial officer, on behalf of the Company,
satisfactory to you as to such matters as you may
reasonably request and as to (i) the accuracy of the
Company's representations and warranties herein at and
as of the Time of Delivery and (ii) the performance by
the Company of all its obligations hereunder to be
performed at or prior to the Time of Delivery; (iii) the
fact that they have carefully examined the Registration
Statement and Prospectus and, (a) as of the Effective
Date, the statements contained in the Registration
Statement and the Prospectus were true and correct and
neither the Registration Statement nor the Prospectus
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading and (b) since the Effective Date, no event
has occurred that is required by the Act or the Rules
and Regulations of the Commission thereunder to be set
forth in an amendment of, or a supplement to, the
Prospectus that has not been set forth in such an
amendment or supplement; and (iv) the matters set forth
in subsection (a) of this Section 7;
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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(xii)Each director, officer and five percent
stockholder of the Company shall have delivered to you
an agreement not to sell, offer or agree to sell or
otherwise dispose of any capital stock of the Company
(or securities convertible into, or exchangeable for,
capital stock of the Company), directly or indirectly,
for a period of 180 days after the date hereof (other
than pursuant to this Agreement), without the prior
written consent of the Representatives, PROVIDED that
the foregoing restrictions shall not apply to grants
under the Company's stock option plan and the exercise
of options granted thereunder or to any gift of Common
Stock or any private sale of Common Stock not made on
the open market to a donee or purchaser, respectively,
that agrees in writing for the benefit of the
Representative to be bound by the same restrictions with
respect to such shares; and
(xiii)The Company shall have delivered to you
evidence that the Securities have been authorized for
quotation on the Nasdaq National Market as of the
Effective Date.
viii. The Company will indemnify and hold harmless each
Underwriter 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 (i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, or in any Blue Sky application or other document
executed by the Company specifically for that purpose or based upon
written information furnished by the Company filed in any state or
other jurisdiction in order to qualify any or all the Securities
under the security laws thereof or filed with the Commission or any
securities association or securities exchange (each, an
"Application"), or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements made therein not misleading, or (ii) any untrue
statement or alleged untrue statement made by the Company in Section
1 of this Agreement, or (iii) the employment by the Company of any
device, scheme or artifice to defraud, or the engaging by the
Company in any act, practice or course of business which operates or
would operate as a fraud or deceit, or any conspiracy with respect
thereto, in which the Company shall participate, in connection with
the issuance and sale of
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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any of the Securities, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating, preparing to defend, defending or
appearing as a third-party witness in connection with any such
action or claim; PROVIDED, HOWEVER, that the Company shall 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 or omission or alleged
omission relating to an Underwriter made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or such
amendment or supplement or any Application in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through you expressly for use therein.
(i) In addition to any obligations of the Company under
Section 8(a), the Company agrees that it shall perform its
indemnification obligations under Section 8(a) (as modified by
the last paragraph of this Section 8(b)) with respect to
counsel fees and expenses and other expenses reasonably
incurred by making payments within 45 days to the Underwriter
in the amount of the statements of the Underwriter's counsel
or other statements which shall be forwarded by the
Underwriter, and that they shall make such payments
notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the obligation to
reimburse the Underwriters for such expenses and the
possibility that such payments might later be held to have
been improper by a court and a court orders return of such
payments.
The indemnity agreement in Section 8(a) shall be in addition to any
liability which the Company 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 or the Exchange Act.
(ii) Each Selling Shareholder will indemnify and hold
harmless each Underwriter or the Company, as the case may be,
against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter or the Company, as the case
may be, 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
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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(i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, or in any Blue Sky application or other
document executed by the Company specifically for that purpose
or based upon written information furnished to the Company by
the Selling Shareholder filed in any state or other
jurisdiction in order to qualify any or all the Securities
under the security laws thereof or filed with the Commission
or any securities association or securities exchange (each, an
"Application"), or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements made therein not misleading
in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission was
made in reliance upon and in conformity with written
information furnished to the Company by such Selling
Shareholder specifically for use therein or (ii) any untrue
statement or alleged untrue statement made by the Selling
Shareholder in Section 1.A of this Agreement; PROVIDED,
HOWEVER, that the Selling Shareholder shall 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 or omission or alleged
omission relating to an Underwriter made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or such
amendment or supplement or any Application in reliance upon
and in conformity with written information furnished to the
Company by such Underwriter through you expressly for use
therein. In addition, in no event shall the liability of any
Selling Shareholder for indemnification in this Section 8(c)
exceed the proceeds received by such Selling Shareholder in
the Offering.
(iii)In addition to any obligations of each of the
Selling Shareholders under Section 8(c), each of the Selling
Shareholders agrees that it shall perform its indemnification
obligations under Section 8(c) (as
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-38-
modified by the last paragraph of this Section 8(d)) with
respect to counsel fees and expenses and other expenses
reasonably incurred by making payments within 45 days to the
Underwriter in the amount of the statements of the
Underwriter's counsel or other statements which shall be
forwarded by the Underwriter, and that they shall make such
payments notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the
obligation to reimburse the Underwriters for such expenses and
the possibility that such payments might later be held to have
been improper by a court and a court orders return of such
payments.
The indemnity agreement in Section 8(c) shall be in addition to any
liability which the Company 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 or the Exchange Act.
(iv) Each Underwriter will indemnify and hold harmless
the Company or the Selling Shareholders, as the case may be,
against any losses, claims, damages or liabilities to which
the Company or any of the Selling Shareholders 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 an untrue statement or alleged
untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or any
Application, 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, 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 any Preliminary
Prospectus, the Registration Statement, the Prospectus or such
amendment or supplement or any Application in reliance upon
and in conformity with written information furnished to the
Company or the Selling Shareholder by such Underwriter
relating to such Underwriter through you
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-39-
expressly for use therein, and will reimburse the Company or
the Selling Shareholder for any legal or other expenses
reasonably incurred by the Company or the Selling Shareholder
in connection with investigating or defending any such action
or claim.
The indemnity agreement in this Section 8(e) 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 officer and
director of the Company and to each person, if any, who controls the
Company within the meaning of the Act or the Exchange Act.
(v) Promptly after receipt by an indemnified party under
Section 8(a), 8(c) or 8(e) of notice of the commencement of
any action (including any governmental investigation), such
indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to
any indemnified party under Section 8(a), 8(c) or 8(e) except
to the extent it was unaware of such action and has been
prejudiced in any material respect by such failure or from any
liability which it may have to any indemnified party otherwise
than under such Section 8(a), 8(c) or 8(e). In case any such
action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to
such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any
legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other
than reasonable costs of investigation. If, however, (i) the
indemnifying party has authorized the employment of counsel
for the indemnified party
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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at the expense of the indemnifying party or (ii) an
indemnified party shall have reasonably concluded that
representation of such indemnified party and the indemnifying
party by the same counsel would be inappropriate under
applicable standards of professional conduct due to actual or
potential differing interests between them and the indemnified
party so notifies the indemnifying party, then the indemnified
party shall be entitled to employ counsel different from
counsel for the indemnifying party at the expense of the
indemnifying party and the indemnifying party shall not have
the right to assume the defense of such indemnified party. In
no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to local
counsel) for all indemnified parties in connection with any
one action or separate but similar or related actions in the
same jurisdiction arising out of the same set of allegations
or circumstances. The counsel with respect to which fees and
expenses shall be so reimbursed shall be designated in writing
by Xxxxxxxx Xxxxxxxx in the case of parties indemnified
pursuant to Section 8(a) and 8(c) and by the Company and the
Selling Shareholders in the case of parties indemnified
pursuant to Section 8(e).
No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding 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 includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
(vi) In order to provide for just and equitable
contribution under the Act in any case in which (i) any
Underwriter (or any person who controls any Underwriter within
the meaning of the Act or the Exchange Act) makes claim for
indemnification pursuant to Section 8(a) or 8(c) hereof, but
is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal)
that such indemnification may not be
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-41-
enforced in such case notwithstanding the fact that Section
8(a) or 8(c) provides for indemnification in such case or (ii)
contribution under the Act may be required on the part of any
Underwriter or any such controlling person in circumstances
for which indemnification is provided under Section 8(e),
then, and in each such case, each indemnifying party shall
contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject as an indemnifying
party hereunder (after contribution from others) in such
proportion as is appropriate to reflect the relative benefits
received by the Company or any of the Selling Shareholders on
the one hand and the Underwriters on the other from the
offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed
to give the notice required under Section 8(d) above, then
each indemnifying party shall contribute to such amount paid
or payable by such indemnified party 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 the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits
received by the Company or any of the Selling Shareholders on
the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from
the offering of the Securities purchased under this Agreement
(before deducting expenses) received by the Company or any of
the Selling Shareholders bear to the total underwriting
discounts and commissions received by the Underwriters with
respect to the Securities purchased under this Agreement, in
each case as set forth in the table on the cover page of the
Prospectus. 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 or any
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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of the Selling Shareholders on the one hand or the
Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, each of the
Selling Shareholders and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this
Section 8(g) were determined by PRO RATA allocation (even if
the Underwriters were treated as one entity for such purpose)
or by any other method of allocation which does not take
account of the equitable considerations referred to above in
this Section 8(g). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to
above in this Section 8(g) shall be deemed to include any
legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 8(g), 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 and
no Selling Shareholder shall be required to contribute any
amount in excess of the proceeds received by such Selling
Shareholder in the Offering. No person guilty of a 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 Section 8(e) to contribute
are several in proportion to their respective underwriting
obligations and not joint.
(vii)Promptly after receipt by any party to this
Agreement of notice of the commencement of any action, suit or
proceeding, such party will, if a claim for contribution in
respect thereof is to be made
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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against another party (the "contributing party"), notify the
contributing party of the commencement thereof; but the
omission so to notify the contributing party will not relieve
it from any liability which it may have to any other party for
contribution under the Act except to the extent it was unaware
of such action and has been prejudiced in any material respect
by such failure or from any liability which it may have to any
other party other than for contribution under the Act. In case
any such action, suit or proceeding is brought against any
party, and such party notifies a contributing party of the
commencement thereof, the contributing party will be entitled
to participate therein with the notifying party and any other
contributing party similarly notified.
ix. If any Underwriter shall default in its obligation to purchase
the Firm Securities which it has agreed to purchase hereunder, you may in
your discretion arrange for you or another party or other parties to
purchase such Firm Securities on the terms contained herein. If the
aggregate number of Firm Securities as to which Underwriters default is
more than one-eleventh of the aggregate number of all the Firm Securities
and within 36 hours after such default by any Underwriter you do not
arrange for the purchase of such Firm Securities, then the Company shall
be entitled to a further period of 36 hours within which to procure
another party or other parties satisfactory to you to purchase such Firm
Securities on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for
the purchase of such Firm Securities, or the Company notifies you that it
has so arranged for the purchase of such Firm Securities, you or the
Company shall have the right to postpone the Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus
or in any other documents or arrangements, and the Company agrees to file
promptly any amendments to the Registration Statement or the Prospectus
which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Firm
Securities.
(i) If, after giving effect to any arrangements for the
purchase of the Firm Securities of such defaulting Underwriter or
Underwriters by you or the Company or both as provided in subsection
(a) above, the
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-44-
aggregate number of such Firm Securities which remain unpurchased
does not exceed one-eleventh of the aggregate number of all the Firm
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of the Firm
Securities which such Underwriter agreed to purchase hereunder and,
in addition, to require each non-defaulting Underwriter to purchase
its pro rata share (based on the number of Firm Securities which
such Underwriter agreed to purchase hereunder) of the Firm
Securities of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing shall relieve a
defaulting Underwriter from liability for its default.
(ii) If, after giving effect to any arrangements for the
purchase of the Firm Securities of a defaulting Underwriter or
Underwriters by you or the Company as provided in subsection (a)
above, the aggregate number of such Firm Securities which remain
unpurchased exceeds one-eleventh of the aggregate number of all the
Firm Securities, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting
Underwriters to purchase Firm Securities of a defaulting Underwriter
or Underwriters, then this Agreement shall thereupon terminate
without liability on the part of any non- defaulting Underwriter or
the Company, except for the expenses to be borne by the Company and
the Underwriters as provided in Section 6 hereof and the indemnity
agreement in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
x. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Shareholders
and the several Underwriters, as set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person of any Underwriter, or the Company,
or an officer or director or controlling person of the Company, or any
Selling Shareholder, or an officer or director
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
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or controlling person of the Selling Shareholder, and shall survive
delivery of and payment for the Securities.
xi. This Agreement shall become effective (a) if the Registration
Statement has not heretofore become effective, at the earlier of 12:00
Noon, New York City time, on the first full business day after the
Registration Statement becomes effective, or at such time after the
Registration Statement becomes effective as you may authorize the sale of
the Securities to the public by Underwriters or other securities dealers,
or (b) if the Registration Statement has heretofore become effective, at
the earlier of 24 hours after the filing of the Prospectus with the
Commission or at such time as you may authorize the sale of the Securities
to the public by Underwriters or securities dealers, unless, prior to any
such time you shall have received notice from the Company that it elects
that this Agreement shall not become effective, or you, or through you
such of the Underwriters as have agreed to purchase in the aggregate fifty
percent or more of the Firm Securities hereunder, shall have given notice
to the Company that you or such Underwriters elect that this Agreement
shall not become effective; PROVIDED, HOWEVER, that the provisions of this
Section and Section 6 and Section 8 hereof shall at all times be
effective.
If this Agreement shall be terminated pursuant to Section 9 hereof, or if
this Agreement, by election of you or the Underwriters, shall not become
effective pursuant to the provisions of this Section, the Company shall not then
be under any liability to any Underwriter except as provided in Section 6 and
Section 8 hereof, but if this Agreement becomes effective and is not so
terminated but the Securities are not delivered by or on behalf of the Company
as provided herein because the Company has been unable for any reason beyond its
control and not due to any default by it to comply with the terms and conditions
hereof, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities, but the
Company shall then be under no further liability to any Underwriter except as
provided in Section 6 and Section 8 hereof.
xii. The statements set forth in the last paragraph on the front
cover page of the Prospectus, the paragraph on the inside front cover of
the Prospectus containing stabilization language and the third and eighth
paragraphs under the caption "Underwriting" in the Prospectus constitute
the only information furnished by any Underwriter through the
Representatives to the Company for purposes of Sections 1(b), 1(c) and 8
hereof.
xiii. In all dealings hereunder, you shall act on behalf of each of
the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any
Underwriter made
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-46-
or given by you jointly or by Xxxxxxxx Xxxxxxxx on behalf of you as the
Representatives.
All statements, requests, notices and agreements hereunder, unless
otherwise specified in this Agreement, shall be in writing and, if to the
Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission (subsequently confirmed by delivery or by letter sent by mail) to
you as the Representatives in care of Xxxxxxxx Wertheim & Co. Incorporated,
Equitable Center, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Syndicate Department; and if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission (subsequently confirmed by delivery or by letter
sent by mail) to the address of the Company set forth in the Registration
Statement, Attention: S. Xxxxx Xxxxxx, Executive Vice President; PROVIDED,
HOWEVER, that any notice to any Underwriter pursuant to Section 8(d) hereof
shall be delivered or sent by mail, telex or facsimile transmission
(subsequently confirmed by delivery or by letter sent by mail) to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
xiv. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Selling Shareholders and,
to the extent provided in Section 8 and Section 10 hereof, the officers
and directors of the Company and each person who controls the Company or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
xv. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
XVI. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS
PRINCIPLES THEREOF.
xvii. This Agreement may be executed by any one or more of the
parties hereto 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 instrument.
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-47-
If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement Among
Underwriters, manually or facsimile executed counterparts of which, to the
extent practicable and upon request, shall be submitted to the Company for
examination, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
CAL DIVE INTERNATIONAL, INC.
By:_________________________
Name:
Title:
SELLING SHAREHOLDERS
By:_________________________
As Attorney-in-Fact for each of the
several Selling Shareholders named
in Schedule II
Accepted as of the date hereof:
XXXXXXXX WERTHEIM & CO.
INCORPORATED
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXXX & COMPANY INTERNATIONAL
as Representatives of the several Underwriters
By: XXXXXXXX XXXXXXXX & CO.
INCORPORATED
By:_________________________
Managing Director
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
-48-
SCHEDULE I
UNDERWRITER NUMBER OF FIRM SECURITIES
Xxxxxxxx Wertheim & Co. Incorporated..................
Xxxxxxx Xxxxx & Associates, Inc.......................
Xxxxxxx & Company International.......................
Total................................................. ============
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
SCHEDULE I
SCHEDULE II
SELLING SHAREHOLDERS NUMBER OF FIRM SECURITIES
CAL DIVE INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
SCHEDULE II