4,300,000 Shares
Pride Petroleum Services, Inc.
Common Stock
UNDERWRITING AGREEMENT
May 1, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXXXX & COMPANY, INC.
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXX XXXXXX & COMPANY, INC.
XXXXXXX & COMPANY INTERNATIONAL
SOUTHCOAST CAPITAL CORPORATION
As representatives (the "Representatives") of the
several underwriters
named in Schedule I hereto
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Pride Petroleum Services, Inc., a Louisiana corporation (the "COMPANY"),
confirms its agreement with the several underwriters listed in Schedule I hereto
(the "UNDERWRITERS") as follows.
1. THE SHARES. Subject to the terms and conditions herein set forth, the
Company proposes to issue and sell 4,300,000 shares of its common stock, no par
value, (the "FIRM SHARES") to the Underwriters. The Company also proposes to
issue and sell to the several Underwriters not more than 645,000 additional
shares of its common stock, no par value, (the "ADDITIONAL SHARES") if requested
by the Underwriters as provided in Section 3 hereof. The Firm Shares and the
Additional Shares are herein collectively called the "Shares". The shares of
common stock of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to as the "Common Stock."
2. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "COMMISSION") in
accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "ACT"), a registration statement on
Form S-3, including a base prospectus relating to the Shares and certain other
securities. The registration statement as amended at the time when it became
effective on April 4, 1997, including a registration statement (if any) filed
pursuant to Rule 462(b) under the Act increasing the size of the offering
registered under the Act and information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act, is hereinafter referred to as the Registration Statement; and the base
prospectus dated April 4, 1997, as supplemented by the prospectus supplement
relating to the Shares in the form first used to confirm sales of Shares is
hereinafter referred as the Prospectus. Any reference in this Agreement to the
Registration Statement, a preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus or the
Prospectus.
3. AGREEMENTS TO SELL AND PURCHASE. On the basis of the representations
and warranties contained in this Agreement, and subject to its terms and
conditions, the Company agrees to issue and sell, and each Underwriter agrees,
severally and not jointly, to purchase from the Company at a price per share of
$16.19 (the "PURCHASE PRICE") the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares and the Underwriters shall have the right to
purchase, severally and not jointly, up to 645,000 Additional Shares from the
Company at the Purchase Price. Additional Shares may be purchased solely for the
purpose of covering over-allotments made in connection with the offering of the
Firm Shares. The Underwriters may exercise their right to purchase Additional
Shares in whole or in part from time to time by giving written notice thereof to
the Company within 30 days after the date of this Agreement. You shall give any
such notice on behalf of the Underwriters and such notice shall specify the
aggregate number of Additional Shares to be purchased pursuant to such exercise
and the date for payment and delivery thereof. The date specified in any such
notice shall be a business day (i) no earlier than the Closing Date (as
hereinafter defined), (ii) no later than ten business days after such notice has
been given and (iii) no earlier than two business days after such notice has
been given. If any Additional Shares are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase from the Company the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
you may determine) which bears the same proportion to the total number of
Additional Shares to be purchased from the Company as the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I bears to the total
number of Firm Shares.
The Company hereby agrees, and, concurrently with the execution of this
Agreement, shall deliver a letter executed by each of the current directors and
executive officers of the Company pursuant to which such directors and executive
officers agree that, for a period of 90 days after the date of the Prospectus,
without the prior written consent of DLJ on behalf of the Representatives,
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neither the Company, nor such directors and executive officers, will, directly
or indirectly, offer, sell, contract to sell, grant any option to purchase, or
otherwise dispose of any shares of common stock of the Company (the "COMMON
STOCK"), or any securities convertible into or exercisable or exchangeable for,
or warrants, options or rights to purchase or acquire, Common Stock or enter
into any agreement to do any of the foregoing, except pursuant to this
Agreement. Notwithstanding the foregoing, during such period (x) the Company may
grant stock options pursuant to the Company's currently existing stock option
plans, and (y) the directors, officers and other stockholders subject to such
agreements may transfer or otherwise dispose of shares of Common Stock pursuant
to BONA FIDE gifts, provided that, prior to any such transfers or dispositions
referred to in this clause (y), the transferee delivers to DLJ, on behalf of the
Underwriters, a written agreement pursuant to which such transferee agrees to be
bound by the terms of such agreement as if a signatory thereto.
4. TERMS OF THE PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose (i) to make a public offering of their respective portions
of the Shares as soon after the effective date of the Registration Statement as
in your judgment is advisable and (ii) initially to offer the Shares upon the
terms set forth in the Prospectus.
5. DELIVERY AND PAYMENT. Payment for the Firm Shares shall be made at
10:00 A.M., New York City time, on the third business day (or fourth business
day if permitted by Rule 15c6-1(c) of the Securities Exchange Act of 1934, as
amended, including the rules and regulations thereunder (the "EXCHANGE ACT"))
(such time and date being referred to as the "CLOSING DATE") following the
initial public offering of the Firm Shares as advised by you to the Company, at
such place as you shall designate. The Closing Date and the location of delivery
of and the form of payment for the Firm Shares may be varied by agreement
between you and the Company.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at such place as you
shall designate at 10:00 A.M., New York City time, on the date specified in the
applicable exercise notice given by you pursuant to Section 2 (an "OPTION
CLOSING DATE"). Any such Option Closing Date and the location of delivery of and
the form of payment for such Additional Shares may be varied by agreement
between you and the Company.
Unless otherwise directed by you, payment of the Purchase Price
shall be made to the Company by wire transfer of immediately available funds to
a bank account designated by the Company against delivery to you for the
respective accounts of the several Underwriters of the Shares. Unless you direct
that the Shares will be issued in book-entry form, Certificates for the Shares
shall be registered in such names and issued in such denominations as you shall
request in writing not later than two full business days prior to the Closing
Date or an Option Closing Date, as the case may be. Such certificates shall be
made available to you for inspection not later than 9:30 A.M., New York City
time, on the business day next preceding the Closing Date or the applicable
Option Closing Date, as the case may be. Certificates in definitive form
evidencing the Shares shall be delivered to you on the Closing Date or the
applicable Option Closing Date, as the case may be,
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with any transfer taxes thereon duly paid by the Company, for the respective
accounts of the several Underwriters, against payment of the Purchase Price
therefor. If the Shares will be issued in book-entry form, the Company shall
deposit the global certificate representing the Shares with the Depository Trust
Company ("DTC"), or its designated custodian at the Closing Date, and the
Company will deliver such global certificate to the several Underwriters by
causing DTC to credit the Shares to the respective accounts of the Underwriters
at DTC.
6. AGREEMENTS OF THE COMPANY. The Company agrees with you that:
(a) It will, if necessary or required by law, file an amendment to
the Registration Statement or, if necessary pursuant to Rule 430A under
the Act, a post-effective amendment to the Registration Statement, as soon
as practicable after the execution and delivery of this Agreement, and
will use its best efforts to cause the Registration Statement or such
post-effective amendment to become effective at the earliest possible
time. The Company will comply fully and in a timely manner with the
applicable provisions of Rule 424 and Rule 430A under the Act.
(b) It will advise you promptly and, if requested by you, confirm
such advice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the transmission to the Commission for
filing of any supplement to the Prospectus or any document that would as a
result thereof be incorporated by reference in the Prospectus and to
furnish you with copies thereof, (iii) of the receipt of any comments from
the Commission that relate to the Registration Statement or requests by
the Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information, (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purpose by the Commission or any
state securities commission or other regulatory authority, and (v) of the
happening of any event during the period referred to in paragraph (e)
below which makes any Statement of a material fact made in the
Registration Statement (as amended or supplemented from time to time)
untrue or which requires the making of any additions to or changes in the
Registration Statement (as amended or supplemented from time to time) in
order to make the statements therein not misleading or that makes any
statement of a material fact made in the Prospectus (as amended or
supplemented from time to time) untrue or which requires the making of any
additions to or changes in the Prospectus (as amended or supplemented from
time to time) in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If at any time
the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption of the Shares under any state securities or Blue Sky laws, the
Company shall, if reasonably requested by you, use every reasonable effort
to obtain the withdrawal or lifting of such order at the earliest possible
time.
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(c) It will furnish to the Underwriters without charge two (2)
signed copies of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits filed
therewith or incorporated by reference therein, and will furnish to you
and each Underwriter designated by you such number of conformed copies of
the Registration Statement as so filed and of each amendment to it,
without exhibits, as you may reasonably request.
(d) It will not file any amendment to the Registration Statement, or
make any amendment or supplement to the Prospectus, of which you shall not
previously have been advised and provided a copy prior to the filing or
making thereof or to which you shall reasonably object; and it will
prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or any amendment or
supplement to the Prospectus that may be necessary or advisable in
connection with the distribution of the Securities by you, and will use
its best efforts to cause the same to become effective as promptly as
possible.
(e) For such period as in the opinion of counsel for the
Underwriters a prospectus is required by the Act to be delivered in
connection with sales by an Underwriter or a dealer, it will furnish to
each Underwriter and dealer without charge as many copies of the
Prospectus (and of any amendment or supplement to the Prospectus) as such
Underwriter or dealer may reasonably request for the purposes contemplated
by the Act.
(f) If during the period specified in paragraph (e) any event shall
occur as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances
existing as of the date the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with the Act, it will, as promptly as practicable, prepare and file
with the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not, in the light of the circumstances existing as of
the date the Prospectus is so delivered, be misleading, and so that the
Prospectus and will comply with the Act, and will furnish to each
Underwriter and to such dealers as you shall specify without charge such
number of copies thereof as such Underwriter and such dealers may
reasonably request.
(g) Prior to any public offering of the Shares, it will cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the Shares for offer and sale by the
several Underwriters and by dealers under the state securities or Blue Sky
laws of such jurisdictions as you may request (provided, that the Company
shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to take any action that
would subject it to general consent to service of process in any
jurisdiction in which it is not now so subject). The Company will continue
such
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qualification in effect so long as required by law for distribution of the
Shares and will file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification (provided, that the Company shall not be obligated to take
any action that would subject it to general consent to service of process
in any jurisdiction in which it is not now so subject).
(h) It will make generally available to its security holders as soon
as reasonably practicable a consolidated earnings statement covering a
period of at least twelve months beginning after the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement (but in
no event commencing later than 90 days after such date) which shall
satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder
and will advise you in writing when such statement has been so made
available.
(i) It will timely complete all required filings and otherwise
comply fully in a timely manner with all provisions of the Securities
Exchange Act of 1934, as amended, including the rules and regulations
thereunder (collectively, the "Exchange Act"), to cause the Shares to be
registered pursuant thereto.
(j) During the period of five years after the date of this
Agreement, to furnish to you as soon as available a copy of each report or
other publicly available information of the Company mailed to the holders
of its Common Stock or filed with the Commission and such other publicly
available information concerning the Company and its Subsidiaries as you
may reasonably request.
(k) It will use the proceeds from the sale of the Shares in the
manner described in the Prospectus under the Caption "Use of Proceeds."
(l) It has not taken and will not take, directly or indirectly, any
action designed, or that might reasonably be expected, to cause or result
in stabilization or manipulation of the market price of the Common Stock
to facilitate the sale or resale of the Shares.
(m) It will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or
after the Closing Date or any Option Closing Date and to satisfy all
conditions precedent to the delivery of the Shares.
(n) To use its best efforts to maintain the inclusion of such Common
Stock in the NASDAQ National Market System (or on a national securities
exchange) for a period of five years after the effective date of the
Registration Statement.
7. PAYMENT OF EXPENSES. The Company agrees with you that whether or not
the transactions contemplated hereby are consummated or this Agreement is
terminated, the Company will pay and be responsible for all costs, expenses,
fees and taxes incident to (i) the preparation,
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printing, filing and distribution under the Act of the Registration Statement
(including financial statements and exhibits), each preliminary prospectus and
all amendments and supplements to any of them prior to or during the period
specified in paragraph 6(e), (ii) the printing and delivery of the Prospectus
and all amendments or supplements to it during the period specified in paragraph
(e), (iii) the printing and delivery of this Agreement, the Preliminary and
Supplemental Blue Sky Memoranda and all other agreements, memoranda,
correspondence and other documents printed and delivered in connection with the
offering of the Shares (including in each case any disbursements of counsel for
the Underwriters relating to such printing and delivery), (iv) the registration
or qualification of the Shares for offer and sale under the securities or Blue
Sky laws of the several states (including in each case the fees and
disbursements of counsel for the Underwriters relating to such registration or
qualification and memoranda relating thereto), (v) filings and clearance with
the National Association of Securities Dealers, Inc. in connection with the
offering, (vi) the listing of the Shares on the National Association of
Securities Dealers Automated Quotation system ("NASDAQ") National Market System
and (vii) furnishing such copies of the Registration Statement, the Prospectus
and all amendments and supplements thereto as may be requested for use in
connection with the offering or sale of the Shares by the Underwriters or by
dealers to whom Shares may be sold.
8. REPRESENTATIONS AND WARRANTIES. (a) The Company represents and warrants
to each Underwriter that:
(i) The Registration Statement has become effective and at the
date of the Prospectus (if different), including at the date of any
post-effective amendment or supplement, the Registration Statement will
comply in all material respects with the provisions of the Act, and will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus (and any supplements or
amendments thereto) will at all such times comply in all material respects
with the provisions of the Act and will not at any such time contain any
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, not misleading, except that the
representations and warranties contained in this paragraph 8(i) shall not
apply to (A) statements in or omissions from the Registration Statement or
the Prospectus (or any supplement or amendment to any of them) based upon
and conforming with information relating to any Underwriter furnished to
the Company in writing by or on behalf of any Underwriter through the
Representatives expressly for use therein. The Company acknowledges for
all purposes under this Agreement (including this paragraph and Section 9
hereof) that the statements set forth in the first (including the table),
second and final paragraphs of the section entitled "Underwriting" in the
Prospectus constitute the only written information furnished to the
Company by or on behalf of the Underwriters for use in the Registration
Statement or the Prospectus or any preliminary prospectus (or any
amendment or supplement to any of them) and that the Underwriters shall
not be deemed to have provided any information (and
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therefore are not responsible for any statements or omissions) pertaining
to any arrangement or agreement with respect to any party other than the
Underwriters. No contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement is not described and filed as
required.
(ii) The documents incorporated by reference in the
Registration Statement or and the Prospectus pursuant to Item 12 of Form
S-3 under the Act, at the time they became effective or at the time they
were filed with the Commission, or to the extent such documents were
subsequently amended prior to the date hereof, at the time so amended,
complied and will comply in all material respects with the requirements of
the Exchange Act and, when read together and with the other information in
the Prospectus do not and will not on the date hereof and at the Closing
Date and the Option Closing Date, as the case may be, 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 or are made, not
misleading.
(iii) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 or 430A under the Act, complied
when so filed in all material respects with the provisions of the Act 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 light of the circumstances under which they were
made, not misleading.
(iv) Each "significant subsidiary" (as such term is defined in
Regulation S-X under the Exchange Act) of the Company is listed on Exhibit
21 to the Annual Report on Form 10-K of the Company for the year ended
December 31, 1996 or is described in the Registration Statement as having
been acquired after December 31, 1996. The Company and each of its the
subsidiaries listed on Schedule II hereto (the "SUBSIDIARIES") has been
duly organized, is validly existing and in good standing under the laws of
its jurisdiction of organization and has full corporate power and
authority to carry on its business as it is currently being conducted
(and, in the case of the Company, to authorize the offering of the Shares
and to issue, sell and deliver the Shares), and is duly qualified and is
in good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect (as defined
below).
(v) All of the issued and outstanding shares of capital stock
of each of the Subsidiaries has been duly authorized and validly issued
and are owned directly or indirectly by the Company, subject to such
minimum minority ownership interests in the non-U.S. Subsidiaries as may
be required under applicable law. All such shares are fully paid and
nonassessable, and, except as disclosed in the Prospectus, are owned by
the Company free and clear of any security interest, mortgage, pledge,
claim, lien, encumbrance or adverse
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interest of any nature (each, a "LIEN"). There are no outstanding
subscriptions, rights, warrants, options, calls, convertible or
exchangeable securities, commitments of sale, or Liens related to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of, or other ownership interests in, any Subsidiary.
(vi) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under "Capitalization"; all
the shares of issued and outstanding Common Stock have been duly
authorized and validly issued and are fully paid, nonassessable and not
subject to any preemptive or similar rights; except as disclosed in the
Prospectus, there are no outstanding (a) securities or obligations of the
Company convertible into or exchangeable for any capital stock of the
Company, (b) warrants, rights or options to subscribe for or purchase from
the Company any such capital stock or any such convertible or exchangeable
securities or obligations, or (c) obligations of the Company to issue any
shares of capital stock, any such convertible or exchangeable securities
or obligations, or any such warrants, rights or options; all offers and
sales of the Company's capital stock by the Company prior to the date
hereof were at all relevant times duly registered under the Act or exempt
from the registration requirements of the Act and were duly registered or
the subject of an available exemption from the registration requirements
of the applicable state securities or Blue Sky laws; the capital stock of
the Company, including the Common Stock, conforms in all material respects
to all statements relating thereto in the Prospectus and the Registration
Statement.
(vii) Neither the Company nor any Subsidiary is in violation
of or in default under (a) its charter or bylaws or (b) any bond,
debenture, note or any other evidence of indebtedness or any indenture,
mortgage, deed of trust or other contract, lease or other instrument to
which it is a party or by which it is bound, or to which any of its
property or assets is subject, which could reasonably be expected to have
a material adverse effect, singly or in the aggregate, on the business,
results of operations, financial condition or business affairs, of the
Company and the Subsidiaries, taken as a whole (a "MATERIAL ADVERSE
EFFECT"). No contract or other document of a character required to be
described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement is not so described or filed
as required.
(viii)This Agreement has been duly and validly authorized,
executed and delivered by the Company, and constitutes a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms (except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws or public
policy relating thereto).
(ix) The execution and delivery of this Agreement and the
issuance and sale of the Shares, the performance of this Agreement and the
consummation of the transactions contemplated hereby and thereby will not
require any consent, approval,
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authorization or other order of any court, regulatory body, administrative
agency or other governmental body (except for such consents as have been
obtained and except as such may be required under the securities or Blue
Sky laws of the various states) and will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default or
cause an acceleration of any obligation under, (A) the charter or bylaws
of the Company or any Subsidiary, (B) any bond, note, debenture or other
evidence of indebtedness or any indenture, mortgage, deed of trust or
other contract, lease or other instrument to which the Company or any
Subsidiary is a party or by which any of them is bound, or to which any of
the property or assets of the Company or any Subsidiary is subject, which
could reasonably be expected to have a Material Adverse Effect, (C) any
order of any court or governmental agency or authority entered in any
proceeding to which the Company or any Subsidiary is a party or by which
any of them is bound, or (D) violate or conflict with any applicable
foreign, Federal, state or local law, rule, administrative regulation or
ordinance or administrative or court decree applicable to the Company or
any Subsidiary or any of its their respective property.
(x) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any court or governmental agency or body
pending against the Company or any of its Subsidiaries that is required to
be disclosed in the Registration Statement or the Prospectus, or which
could reasonably be expected to have a Material Adverse Effect, or
materially and adversely affect the performance of the Company's
obligations pursuant to this Agreement and, to the best of the Company's
knowledge, no such proceedings are contemplated or threatened. No action
has been taken with respect to the Company or any Subsidiary, and no
statute, rule or regulation or order has been enacted, adopted or issued
by any governmental agency and no injunction, restraining order or other
order of any court of competent jurisdiction has been issued with respect
to the Company or any Subsidiary that prevents the issuance of the Shares,
suspends the effectiveness of the Registration Statement, prevents or
suspends the use of any preliminary prospectus or the Prospectus or
prevents or suspends the sale of the Shares in any of the jurisdictions
that you may have specified pursuant to Section 6(g) hereof; no action,
suit or proceeding before any court or arbitrator or any governmental
body, agency or official (domestic or foreign), is pending against or, to
the knowledge of the Company, threatened against, the Company or any
Subsidiary that, if adversely determined, could reasonably be expected to
(a) interfere with or adversely affect the issuance of the Shares or (b)
in any manner invalidate this Agreement; and every request of the
Commission, or any securities authority or agency of any jurisdiction, for
additional information to be included in the Registration Statement or the
Prospectus or otherwise has been complied with in all material respects.
(xi) Coopers & Xxxxxxx L.L.P., the firm of accountants that
has certified the applicable consolidated financial statements and
supporting schedules of the Company filed with the Commission as part of
or incorporated by reference in the Registration Statement and the
Prospectus, are independent public accountants with respect to the
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Company and the Subsidiaries, as required by the Act. Ernst & Young Audit,
Price Waterhouse and Pistrelli, Xxxx & Associados are independent public
accountants with respect to certain Subsidiaries of the Company. The
consolidated financial statements, together with related schedules and
notes, set forth or incorporated by reference in the Prospectus and the
Registration Statement comply as to form in all material respects with the
requirements of the Act. Such financial statements fairly present in all
material respects the consolidated financial position of the Company and
the Subsidiaries at the respective dates indicated and the results of
their operations and their cash flows for the respective periods
indicated, and have been prepared in accordance with generally accepted
accounting principles ("GAAP"), except as otherwise expressly stated
therein, as consistently applied throughout such periods. The other
financial and statistical information and data included or incorporated by
reference in the Prospectus and in the Registration Statement, historical
and PRO FORMA, are, in all material respects, accurate and prepared on a
basis consistent with such financial statements and the books and records
of the Company. Each of the Company and its Subsidiaries keeps books and
records that fairly reflect its assets and maintains internal accounting
controls which provide reasonable assurance that (a) transactions are
executed in accordance with management's authorization, (b) transactions
are recorded as necessary to permit preparation of the Company's
consolidated financial statements in accordance with generally accepted
accounting principles and to maintain accountability for the assets of the
Company, (c) access to the assets of the Company and each of its
Subsidiaries is permitted only in accordance with management's
authorization, and (d) the recorded accountability for assets of the
Company and each of its Subsidiaries is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
material differences.
(xii) Except as disclosed in the Registration Statement,
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) neither the Company nor any
Subsidiary has incurred any liabilities or obligations, direct or
contingent, that are material to the Company and the Subsidiaries, taken
as a whole, nor entered into any transaction not in the ordinary course of
business that is material to the Company and the Subsidiaries, taken as a
whole, and is required to be disclosed on a balance sheet in accordance
with GAAP, either when considered alone or together with all other such
transactions, (ii) there has been no decision or judgment in the nature of
litigation adverse to the Company or any Subsidiary that could reasonably
be expected to have a Material Adverse Effect, and (iii) there has been no
material adverse change in the financial condition or in the results of
operations, business affairs or business prospects of the Company and the
Subsidiaries, taken as a whole (any of the above, a "MATERIAL ADVERSE
CHANGE").
(xiii) The Company and each of its Subsidiaries has such
certificates, permits, licenses, approvals, authorizations and other
rights (collectively, "PERMITS") including, without limitation, under any
Environmental Laws (as defined below), issued by
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governmental or regulatory authorities as are, in all material respects,
necessary to own, lease and operate their respective properties and to
conduct their respective businesses; the Company and each of its
Subsidiaries has fulfilled and performed all of its material obligations
with respect to such Permits and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination
thereof or results or would result in any other material impairment of the
rights of the holder of any such Permit; and, except as described in the
Prospectus, such Permits contain no restrictions that are materially
burdensome to the Company and its Subsidiaries considered as a whole.
(xiv) All material tax returns required to be filed by the
Company and the Subsidiaries in every jurisdiction have been filed, other
than those filings being contested in good faith, and, except as disclosed
in the Prospectus, all taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due or claimed to be due
from such entities have been paid.
(xv) Except as would not, individually or in the aggregate,
have a Material Adverse Effect (a) neither the Company nor any Subsidiary
is in violation of any foreign, Federal, state or local laws and
regulations relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata), including, without
limitation, laws and regulations relating to emissions, discharges,
releases or threatened releases of toxic or hazardous substances,
materials or wastes, or petroleum and petroleum products ("MATERIALS OF
ENVIRONMENTAL CONCERN"), or otherwise relating to the storage, disposal,
transport or handling of Materials of Environmental Concern (collectively,
"ENVIRONMENTAL LAWS"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations; (b)
neither the Company nor any Subsidiary has received any communication
(written or oral), whether from a governmental authority or otherwise,
alleging any such violation or noncompliance, and there are no
circumstances, either past, present or that are reasonably foreseeable,
that may lead to such violation in the future; (c) there is no pending or
threatened claim, action, investigation or notice (written or oral) by any
person or entity alleging potential liability for investigatory, cleanup,
or governmental responses costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Materials of
Environmental Concern at any location owned or operated by the Company or
any Subsidiary, now or in the past, or (y) circumstances forming the basis
of any violation, or alleged violation, of any Environmental Law
(collectively, "ENVIRONMENTAL CLAIMS"); and (d) there are no past or
present actions, activities, circumstances, conditions, events or
incidents, that could form the basis of any Environmental Claim against
the Company or any Subsidiary or against any person or entity whose
liability for any Environmental Claim the Company or any Subsidiary has
retained or assumed either contractually or by operation of law.
-12-
(xvi) Except as would not have a Material Adverse Effect, (A)
neither the Company nor any Subsidiary is in material violation of any
Federal, state or local law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable wage or hour laws nor any
provisions of the Employee Retirement Income Security Act of 1974, as
amended, or the rules and regulations promulgated thereunder, (B) there is
no unfair labor practice complaint pending against the Company or any
Subsidiary or, to the best knowledge of the Company, threatened against
any of them, before the National Labor Relations Board or any state or
local labor relations board, and (C) there is no labor dispute in which
the Company or any Subsidiary is involved nor, to the best knowledge of
the Company, is any labor dispute imminent, other than routine
disciplinary and grievance matters.
(xvii)Except as otherwise set forth in the Prospectus or such
as would not have a Material Adverse Effect, the Company and each
Subsidiary has good and marketable title, free and clear of all Liens
(except Liens for taxes not yet due and payable), to all prop erty and
assets described in the Registration Statement as being owned by it. All
leases to which the Company or any Subsidiary is a party are valid and
binding and no default has occurred or is continuing thereunder, which
might result in a Material Adverse Effect, and the Company and each
Subsidiary enjoy peaceful and undisturbed possession under all such leases
to which any of them is a party as lessee with such exceptions as do not
materially interfere with the use made by the Company or such Subsidiary.
(xviii) The Company and its Subsidiaries maintain what they
believe to be reasonably adequate insurance coverage for those risks that
the Company believes to be customarily insured against by companies in the
same business.
(xix) Except for the Registration Rights Agreement between the
Company and Ackermans & van Haaran Group and Soletanche Group, no holder
of any security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company. No holder of
any security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company as part of or
under the Registration Statement.
(xx) Neither the Company nor any Subsidiary is a party to any
agreement that currently prohibits, directly or indirectly, any Subsidiary
from paying any dividends to the Company, from making any other
distributions on such Subsidiary's capital stock, from repaying to the
Company any loans or advances to such Subsidiary or from transferring any
of such Subsidiary's property or assets to the Company or any other
Subsidiary of the Company, except as disclosed in the Prospectus.
(xxi) The Company and the Subsidiaries own or possess the
right to use all patents, trademarks, trademark registrations, service
marks, service xxxx registrations, trade
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names, copyrights, licenses, inventions, trade secrets and rights
described in the Prospectus as being owned by them or any of them or
necessary for the conduct of their respective businesses, and the Company
is not aware of any claim to the contrary or any challenge by any other
person to the right of the Company and the Subsidiaries with respect to
the foregoing.
(xxii)The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xxiii) The conditions for use of a Registration Statement on
Form S-3 set forth in the General Instructions to Form S-3 have been
satisfied with respects to the Company and the transactions contemplated
by this Agreement and the Registration Statement.
(xxiv)To the knowledge of the Company after inquiry of its
executive officers and directors, there are no direct or indirect
associations or affiliations with any member of the NASD among the
Company's executive officers, directors or principal stockholders, except
as set forth in the Registration Statement or as otherwise disclosed to
the Underwriters.
(xxv) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be
disclosed therein by Item 404 of Regulation S-K of the Commission.
9. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless, (i) each of
the Underwriters and (ii) each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) any of
the Underwriters (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "CONTROLLING PERSON") (any person referred to
in clause (i) or (ii) may hereinafter be referred to as an "INDEMNIFIED
PERSON") to the fullest extent lawful, from and against any and all
losses, claims, damages, liabilities, actions and expenses (including
without limitation and as incurred, reimbursement of all reasonable costs
of investigating, preparing, pursuing, or defending any claim or action,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of
counsel employed by any Indemnified Person in accordance with the
provisions of this Section 9) directly or indirectly caused by, related
to, based upon or arising out of, or in connection with any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (including, in each case, any
amendment or supplement thereto) or any preliminary prospectus, or any
omission or alleged omission to state therein a material
-14-
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading, except insofar as such losses,
claims, damages, liabilities or expenses are caused by an untrue statement
or omission or alleged untrue statement or omission that is made in
reliance upon and in conformity with information relating to any
Underwriter furnished in writing to the Company through the
Representatives by or on behalf of any such Underwriter expressly for use
therein; PROVIDED that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages,
liabilities, actions or expenses purchased Shares, or any controlling
person of such Underwriter, if a copy of the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) had not been sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the
sale of Shares to such person by such Underwriter and the untrue statement
or omission (or alleged untrue statement or omission) of a material fact
in such preliminary prospectus was corrected in the Prospectus (as amended
or supplemented).
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any of the Indemnified
Persons with respect to which indemnity may be sought against the Company,
such Underwriter (or the Underwriter controlled by such controlling
person) shall promptly notify the Company in writing (provided, that the
failure to give such notice shall not relieve the Company of any liability
which it may have pursuant to this Agreement, unless and only to the
extent that such omission results in the loss or compromise of any
material rights or defenses by the Company). Upon receiving such notice,
the Company shall be entitled to participate in any such action or
proceeding and to assume, at its sole expense, the defense thereof, with
counsel reasonably satisfactory to such Indemnified Person and, after
written notice from the Company to such Indemnified Person of its election
so to assume the defense thereof, the Company shall not be liable to such
Indemnified Person hereunder for legal expenses of other counsel
subsequently incurred by such Indemnified Person in connection with the
defense thereof, other than reasonable costs of investigation unless (i)
the Company agrees in writing to pay such fees and expenses, or (ii) the
Company fails promptly to assume such defense or fails to employ counsel
reasonably satisfactory to such Indemnified Person or (iii) the named
parties to any such action or proceeding (including any impleaded parties)
include both such Indemnified Person and the Company or an affiliate of
the Company, and such Indemnified Person shall have been advised by
counsel either (x) that there may be one or more legal defenses available
to such Indemnified Person that are different from or additional to those
available to the Company or such affiliate or (y) a conflict may exist
between such Indemnified Person and the Company or such affiliate (in
which case, if such Indemnified Person notifies the Company in writing,
the Company shall not have the right to assume the defense thereof), it
being understood, however, that the Company shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings arising out of the same general allegations
or circumstances,
-15-
be liable for the reasonable fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) at any time for each
such Indemnified Person. The Company shall be liable for any settlement of
any such action or proceeding effected with the prior written consent of
the Company, which consent will not be unreasonably withheld, and the
Company agrees to indemnify and hold harmless any Indemnified Person from
and against any loss, claim, damage, liability or expense by reason of any
such settlement. Notwithstanding the immediately preceding sentence, if in
any case where the fees and expenses of counsel are at the expense of the
indemnifying party and an Indemnified Person shall have requested the
indemnifying party to reimburse the Indemnified Person for such fees and
expenses of counsel as incurred, such indemnifying party agrees that it
shall be liable for any settlement of any action effected without its
written consent if (i) such settlement is entered into more than 30 days
after the receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall have failed to reimburse the
Indemnified Person in accordance with such request for reimbursement (or,
if within 30 days of the receipt of the aforesaid request, the
indemnifying party shall have made a good faith written challenge to the
reasonableness of the amount or nature of the reimbursement requested or
the sufficiency of the documentation supporting the reimbursement
requested (which challenge shall specifically set forth the amount or
nature of the requested reimbursement which the indemnifying party in good
faith believes to be unreasonable or the basis for the good faith claim as
to the insufficiency of any supporting documentation), in which event this
clause (ii) shall apply if then such indemnifying party shall not have
reimbursed the indemnified party for the amount which is not being so
challenged) prior to the date of such settlement. The Company shall not,
without the prior written consent of each Indemnified Person, settle or
compromise or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, claim, litigation or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not any Indemnified Person is a party
thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Person from all
liability arising out of such action, claim, litigation or proceeding.
(c) Each of the Underwriters agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, officers who sign
the Registration Statement, any person controlling (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Company, to
the same extent as the foregoing indemnity from the Company and the
Subsidiaries to each of the Indemnified Persons, but only with respect to
claims and actions based on information relating to such Underwriter that
was furnished in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement or the Prospectus or any
preliminary prospectus and only insofar as the information included in the
Registration Statement, the Prospectus or any preliminary prospectus was
presented therein in conformity with the information furnished by such
Underwriter as provided above. In case any action or proceeding (including
any governmental investigation) shall be brought or asserted against the
Company, any of its
-16-
directors, any such officer, or any such controlling person based on the
Registration Statement, the Prospectus or any preliminary prospectus in
respect of which indemnity may be sought against any Underwriter pursuant
to the foregoing sentence, the Underwriter shall have the rights and
duties given to the Company (except that if the Company shall have assumed
the defense thereof, such Underwriter shall not be required to do so, but
may employ separate counsel therein and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), and the Company, its directors, any such officers and each
such controlling person shall have the rights and duties given to the
Indemnified Person by Section 9(b) above.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or expenses referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and expenses (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other
hand, from the offering of the Shares or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnifying parties
and the indemnified party, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand, and the Underwriters, on the other hand, shall be deemed to be in
the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses)
received by the Company, bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of the
Company on the one hand and the Underwriters on the other 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 related to information supplied by the
Company on the one hand or by 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 indemnity and
contribution obligations set forth herein of any party shall be in
addition to any liability or obligation such party may otherwise have to
the other.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9(d) were determined by
pro rata allocation (even if the Underwriters were created as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or judgments referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
-17-
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, no Underwriter (and its related Indemnified
Persons) shall be required to contribute, in the aggregate, any amount in
excess of the amount by which the total underwriting discount applicable
to the Shares purchased by such Underwriter exceeds the amount of any
damages which such Underwriter (and its related Indemnified Persons) has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters obligations to contribute
pursuant to this Section 9(d) are several in proportion to the respective
aggregate price to the public of Shares purchased by each of the
Underwriters hereunder and not joint.
10. CONDITIONS TO UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters to purchase the Firm Shares under this Agreement are
subject to the satisfaction of each of the following Conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date. All
agreements of the Company set forth in Sections 6(a) through (g), Sections
6(i), 6(l) and 6(m), and the last paragraph of Section 3 of this Agreement
that are required to be performed or complied with by the Company at or
prior to the Closing Date shall have been performed or complied with by
the Company at or prior to the Closing Date. The Company shall have
performed or complied in all material respects with all of its agreements
herein contained (other than those referenced in the immediately preceding
Sentence) and required to be performed or complied with by it at or prior
to the Closing Date.
(b) (i) The Registration Statement shall be effective on the date
hereof, or if a post-effective amendment is required to be filed under the
Act, such post-effective amendment shall have become effective (or, if a
post-effective amendment is required to be filed pursuant to Rule 430A
under the Act, such post-effective amendment shall have become effective)
not later than 5:00 p.m., New York City time, on the date of this
Agreement or at such later date and time as you may approve in writing
and, at the Closing Date, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been commenced or shall be pending before or
threatened by the Commission, (ii) every request for additional
information on the part of the Commission shall have been complied with in
all material respects, and (iii) no stop order suspending the sale of the
Shares in any jurisdiction referred to in Section 6(g) shall have been
issued and no proceeding for that purpose shall have been commenced or
shall be pending or threatened which would, in your reasonable judgment,
make it impracticable or inadvisable to market the Shares or to enforce
contracts for the sale of the Shares.
-18-
(c) (i) Since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
Material Adverse Change, whether or not arising in the ordinary course of
business, (ii) since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a prospective
material adverse change, in the capital stock or long-term debt, or any
material increase in short-term debt, of the Company or any of its
Subsidiaries and (iii) the Company and its Subsidiaries shall have no
liability or obligation, direct or contingent, that is material to the
Company and its Subsidiaries taken as a whole and is required to be
disclosed in the notes to its financial statements in accordance with GAAP
and which is not so disclosed in or incorporated by reference into the
Registration statement.
(d) You shall have received a certificate of the Company, dated the
Closing Date, executed on behalf of the Company by the Chief Executive
Officer and the Chief Financial Officer of the Company, in their
capacities as officers of the Company confirming the matters set forth in
paragraphs (a), (b) and (c) of this Section 10.
(e) You shall have received an opinion (satisfactory to you and your
counsel), dated the Closing Date, of XxXxxxxxxx Xxxxxxxx, a Professional
Limited Liability Company, counsel for the Company, to the effect that:
(i) (A) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and (B) has the corporate power and
authority to own and lease its properties and to conduct its business as
described in the Prospectus;
(ii) the Company has the corporate power and authority to
enter into and perform this Agreement and to issue, sell and deliver the
Shares; this Agreement has been duly and validly authorized by all
necessary corporate action by the Company, and have been duly executed and
delivered by the Company;
(iii) the authorized capital stock of the Company conforms as
to legal matters to the description thereof contained in the "Description
of Capital Stock" section of the Registration Statement and the
Prospectus;
(iv) the Shares have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
-19-
(vi) neither the issuance and sale of the Shares, nor the
performance of the Company's obligations pursuant to this Agreement will
(A) conflict with, result in a breach of, or constitute a default under
the terms of any Louisiana statute, rule or regulation to which the
Company or any of its properties is subject Company or (B) violate any of
the provisions of the charter or by-laws of the Company as in effect on
the date of the opinion;
(vii) the articles of incorporation and bylaws of the Company
conform to the descriptions thereof contained in the Registration
Statement and the Prospectus and the provisions of Louisiana law described
in the Registration Statement and the Prospectus conform to the
descriptions thereof contained in the Registration Statement and the
Prospectus.
(f) You shall have received an opinion (satisfactory to you and your
counsel), dated the Closing Date, of Xxxxx & XxXxxxxx and Xxxxx & Xxxxx,
Venezuelan and Argentine counsel for the Company, respectively, to the
effect that:
(i) Each of Pride International, C.A., Perforaciones
Quitral-Co de Venezuela, S.A. and Pride International, S.A. (the "SOUTH
AMERICAN SUBSIDIARIES") (A) has been duly organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and (B) has the corporate power and
authority to own and lease its properties and to conduct its business as
described in the Prospectus;
(ii) each of the South American Subsidiaries is duly qualified
and is in good standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect;
(iii) all of the issued and outstanding capital stock of each
of the South American Subsidiaries has been duly authorized and validly
issued, and is fully paid and nonassessable, and except as disclosed in
the Prospectus, the shares of capital stock of each South American
Subsidiary are owned directly or indirectly by the Company free and clear
of any perfected security interest and, to such counsel's knowledge, any
other security interests, claims, liens or encumbrances; and
(iv) to such counsel's knowledge, except as disclosed in the
Prospectus or in this Agreement, there are no outstanding (a) securities
or obligations of the any of the South American Subsidiaries convertible
into or exchangeable for any capital stock of any such Subsidiary, (b)
warrants, rights or options to subscribe for or purchase from any such
Subsidiary any such capital stock or any such convertible or exchangeable
securities or obligations, or (c) obligations of any such subsidiary to
issue any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
-20-
(g) You shall have received the written opinion of Xxxx-Xxxx
Laveissiere, General Counsel and Secretary of Forasol S.A., addressed to
the Underwriters and dated the Closing Date to the effect that:
(i) each of Forasol S.A., Foramer S.A. and Forinter Ltd. (the
"FORASOL SUBSIDIARIES") has been duly incorporated and is validly existing
as a corporation under the laws of France, with full corporate power and
authority to own its properties and to conduct its business as described
in the Registration Statement and the Prospectus;
(ii) each of the Forasol Subsidiaries is duly qualified and is
in good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect;
(iii) all of the issued and outstanding capital stock of each
of the Forasol Subsidiaries has been duly authorized and validly issued,
and is fully paid and nonassessable, and except as disclosed in the
Prospectus and such minimum minority interests as may be required by
applicable French law, the shares of capital stock of each Forasol
Subsidiary are owned directly or indirectly by the Company free and clear
of any perfected security interest and, to such counsel's knowledge, any
other security interests, claims, liens or encumbrances.
(h) You shall have received an opinion (satisfactory to you and your
counsel), dated the Closing Date, of Xxxxx & Xxxxx, L.L.P., counsel for
the Company, to the effect that:
(i) to such counsel's knowledge, except as disclosed in the
Prospectus, there are no outstanding (a) securities or obligations of the
Company or any of its subsidiaries convertible into or exchangeable for
any capital stock of the Company or any such subsidiary, (b) warrants,
rights or options to subscribe for or purchase from the Company or any
such subsidiary any such capital stock or any such convertible or
exchangeable Securities or obligations, or (c) obligations of the Company
or any such subsidiary to issue any shares of capital stock, any such
convertible or exchangeable Securities or obligations, or any such
warrants, rights or options;
(ii) This Agreement (assuming the due authorization, execution
and delivery hereof by the Company and the valid authorization, execution
and delivery by the Underwriters) is a valid and binding agreement of the
Company enforceable in accordance with its terms (except as rights to
indemnity and contribution hereunder may be limited by applicable law)
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws then or thereafter in effect
relating to or affecting rights and remedies of creditors, and to general
principles of equity (regardless of
-21-
whether enforcement is sought in a proceeding at law or in equity) and to
the discretion of the court before which any proceeding therefor may be
brought;
(iii) the Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and to the knowledge of such
counsel no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings therefor initiated or
threatened by the Commission;
(iv) each document previously filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus, at the time it was
filed or last amended (except for financial statements, the notes thereto
and related schedules and other financial, numerical, statistical or
accounting data included or incorporated by reference therein or omitted
therefrom, as to which such counsel need express no opinion), appeared on
its face to comply as to form in all material respects to the applicable
requirements of the Exchange Act.
(v) to the knowledge of such counsel, no authorization,
approval, consent or order of any court or United States Federal or State,
governmental authority or agency is required to be obtained by the Company
in connection with the sale by the Company of the Shares to you, except
(a) such as have been obtained under the Act, and (b) such as may be
required by one NASD or under the state securities or Blue Sky laws or
regulations of any jurisdiction in the United States in connection with
the purchase and distribution of the Shares by the Underwriters
(vi) the respective provisions of the Shares and the Indenture
described in the Registration Statement and the Prospectus conform in all
material respects to the respective descriptions thereof contained in the
Registration statement and the Prospectus;
(vii) the Registration Statement, at the time it became
effective, and the Prospectus, on its issue date and on the Closing Date
(except, in each case, for financial statements, the notes thereto, the
auditors' report thereon and related schedules and other financial,
numerical, statistical or accounting data included or incorporated by
reference therein or omitted therefrom, as to which no opinion need be
expressed), appeared on their face to comply as to form in all material
respects with the applicable requirements of the Act; to the knowledge of
such counsel, there are no contracts or agreements to which the Company or
any Subsidiary is a party or by which any of them may be bound that are
required to be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement other than those
described therein or filed or incorporated by reference as exhibits
thereto;
-22-
(viii) neither the issuance and sale of the Shares, nor the
performance of the Company's obligations pursuant to this Agreement will
conflict with, result in a breach of, or constitute a default under (A)
the terms of any indenture or other agreement or instruments and to which
the Company or any subsidiary is a party or bound which is material to the
Company and its Subsidiaries considered as a whole and of which such
counsel has knowledge, (B) any statute, rule or regulation to which the
Company or any Subsidiary is a party or by which any of them is bound, or
to which any of the properties of the Company or any Subsidiary is
subject, or (C) any order of any court or governmental agency or body
having jurisdiction over the Company or any Subsidiary or any of their
properties of which such counsel has knowledge;
(ix) to the knowledge of such counsel, there is no current,
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any Subsidiary or to which any of their respective property is
subject of a character required to be disclosed in the Registration
Statement which is not disclosed in the Prospectus;
(x) the Company is not, and will not be as a result of the
consummation of the transactions contemplated by this Agreement, an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(xi) to the knowledge of such counsel, no holder of any
security of the Company has any right to require registration of shares of
Common Stock or any other security of the Company as part of or under the
Registration statement;
(i) You shall have received an opinion (satisfactory to you and your
counsel), dated the Closing, of Xxxxxx X. Xxxxxxx, General Counsel of the
Company, to the effect that:
(i) each of the Subsidiaries that has been organized under the
laws of a state of the United States (the "U.S. SUBSIDIARIES") has been
duly organized and is validly existing as corporations in good standing
under the laws of its jurisdiction of incorporation and has the corporate
power and authority to own and lease its properties and to conduct its
business as described in the Prospectus;
(ii) the Company and each of the U. S. Subsidiaries is duly
qualified and is in good standing as a foreign corporation authorized to
do business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a Material Adverse
Effect;
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(iii) all of the issued and outstanding capital stock of each
of the U. S. Subsidiaries has been duly authorized and validly issued, and
is fully paid and nonassessable, and except as disclosed in the
Prospectus, the shares of capital stock of each U.S. Subsidiary are owned
directly or indirectly by the Company free and clear of any perfected
security interest and, to such counsel's knowledge, any other security
interests, claims, liens or encumbrances;
(iv) to such counsel's knowledge, except as disclosed in the
Prospectus, there are no outstanding (a) securities or obligations of the
Company or any of its subsidiaries convertible into or exchangeable for
any capital stock of the Company or any such subsidiary, (b) warrants,
rights or options to subscribe for or purchase from the Company or any
such subsidiary any such capital stock or any such convertible or
exchangeable Securities or obligations, or (c) obligations of the Company
or any such subsidiary to issue any shares of capital stock, any such
convertible or exchangeable Securities or obligations, or any such
warrants, rights or options;
(v) neither the issuance and sale of the Shares, nor the
performance of the Company's obligations pursuant to this Agreement will
violate any of the provisions of the charter or by-laws of the Company or
any U.S. Subsidiary as in effect on the date of the opinion;
(vi) to the knowledge of such counsel, no holder of any
security of the Company has any right to require registration of shares of
Common Stock or any other security of the Company as part of or under the
Registration Statement;
(vii) to the knowledge of such counsel, there is no current,
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any Subsidiary or to which any of their respective property is
subject of a character required to be disclosed in the Registration
Statement which is not disclosed in the Prospectus;
(viii)except as will not have a Material Adverse Effect, to
the knowledge of such counsel, each of the Company and its Subsidiaries
has such Permits as are in all material respects, necessary to own, lease
and operate their respective properties and to conduct their respective
businesses in the manner described in the Prospectus; to the knowledge of
such counsel, each of the Company and its Subsidiaries has fulfilled and
performed all of its material obligations with respect to such permits and
no event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or result in any other material
impairment of the rights of the holder of any such Permit, subject in each
case to such qualification as may be set forth in the Prospectus;
-24-
(ix) to the knowledge of such counsel, neither the issuance
and sale of the Shares, nor the performance of the Company's obligations
pursuant to this Agreement will (A) conflict with, result in a breach of,
or constitute a default under the terms of any material indenture or other
material agreement or instrument to which any Subsidiary is a party or
bound, or constitute a default under, any statutes rule or regulation to
which any Subsidiary is a party or by which any of them is bound, or to
which any of the properties of any non-U.S. Subsidiary is subject, or any
order of any court or governmental agency or body having jurisdiction over
any non-U.S. Subsidiary or any of their properties, except as will not
have a Material Adverse Effect, or (B) violate any of the provisions of
the charter or by-laws of any non-U.S. Subsidiary as in effect on the date
of the opinion; and
(x) the respective provisions of the employment agreements and
the Pride Petroleum Services, Inc. Long-Term Incentive Plan described in
the Company's proxy statement incorporated by reference into the
Prospectus conform in all material respects to the respective descriptions
thereof contained in such proxy statement.
In addition, each of Xxxxx & Xxxxx, L.L.P. and Xxxxxx X. Xxxxxxx
shall state that such counsel has participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company, your representatives and
your counsel at which the contents of the Registration Statement and
Prospectus and related matters were discussed and, although such counsel
did not independently verify such information and is not passing upon and
does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
Prospectus, on the basis of the foregoing (relying as to the factual
matters upon the statements of officers and other representatives of the
Company and state officials and as to materiality to a large degree on
officers and other representatives of the Company and your
representatives) no facts came to such counsel's attention that led such
counsel to believe that the Registration Statement (other than the
financial statements, the notes thereto and the auditors' report thereon
and other financial, numerical, statistical and accounting data included
or incorporated by reference therein, or omitted therefrom, as to which
such counsel need express no belief) as amended or supplemented, at the
time such Registration Statement or any post-effective amendment became
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or the Prospectus (other than the
financial statements and notes thereto and other financial, numerical,
statistical and accounting data included or incorporated by reference
therein, or omitted therefrom, as to which such counsel need express no
belief) as amended or supplemented, as of its date and the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
-25-
The opinion of XxXxxxxxxx Xxxxxxxx shall be limited to the laws of
the State of Louisiana. The opinion of Xxxxx & Xxxxx, L.L.P. shall be
limited to the laws of the United States and the laws of the State of New
York and the State of Texas. The opinion of Xxxxxx X. Xxxxxxx shall be
limited to the laws of the United States, the laws of the State of Texas,
and the corporate law of the State of Delaware. The opinion of each
foreign counsel shall be limited to the laws of the jurisdiction in which
the Foreign Subsidiary with respect to which such opinion is given is
organized.
(j) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters,
in form and substance reasonably satisfactory to you.
(k) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the former, based on limited
procedures), in form and substance satisfactory to you, from Coopers &
Xxxxxxx L.L.P., and Ernst & Young, L.L.P., independent public accountants
and any other independent public accountants deemed necessary by counsel
for the Underwriters, with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
(l) The Company shall have delivered to you the agreements specified
in Section 3 hereof.
(m) Prior to the Closing Date, the Company shall have furnished to
you or caused to be furnished to you such further information,
certificates and documents as you may reasonably request.
(n) The Company shall not have failed at or prior to the Closing
Date to perform or comply with any of the agreements herein contained and
required to be performed or complied with by the Company at or prior to
the Closing Date.
(o) There shall not have been any announcement by any "nationally
recognized statistical rating organization," as defined for purposes of
Rule 436(g) under the Act, nor shall any such organization have advised
the Company or the Underwriters, that (i) it is downgrading its rating
assigned to any class of securities of the Company or (ii) it is reviewing
any such rating with a view to possible downgrading, or with negative
implications, or direction not determined.
The several obligations of the Underwriters to purchase any Additional Shares
hereunder are subject to the delivery to you on the applicable Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and
-26-
issuance of such Additional Shares and other matters related to the issuance of
such Additional Shares.
11. DEFAULTS AND TERMINATION. This Agreement may be terminated at any time
prior to the Closing Date by you by written notice to the Company if any of the
following has occurred: (i) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any material adverse
change or development involving a prospective material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries, taken as
a whole, or the earnings, affairs, or business prospects of the Company or any
of its subsidiaries, taken as a whole, whether or not arising in the ordinary
course of business, which would, in your judgment, make it impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus,
(ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and would, in your judgment, make it impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus,
(iii) the suspension or material limitation of trading in securities on the New
York Stock Exchange, the American Stock Exchange or the NASDAQ National Market
System or limitation on prices for securities on any such exchange or National
Market System, (iv) the enactment, publication, decree or other promulgation of
any federal or state statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects,
or will materially and adversely affect, the business or operations of the
Company or any Subsidiary, (v) the declaration of a banking moratorium by either
federal or New York State authorities or (vi) the taking of any action by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused to
purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I bears to the total number of Firm
Shares which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused to
purchase on such date; PROVIDED that in no event shall the number of Firm Shares
or Additional Shares, as the case may be, which any Underwriter has agreed to
purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by
an amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date or on an Option Closing Date, as the case may be, any
-27-
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares, or
Additional Shares, as the case may be, and the aggregate number of Firm Shares
or Additional Shares, as the case may be, with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares to be purchased
on such date by all Underwriters and arrangements satisfactory to you and the
Company for purchase of such Shares are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter and the Company. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date or the applicable Option Closing Date, as
the case may be, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of any such Underwriter under this Agreement.
The indemnity and contribution provisions and the other agreements,
representations and warranties set forth in or made pursuant to this Agreement
shall remain operative and in full force and effect, and will survive delivery
of and payment for the Shares, regardless of (i) any investigation, or statement
as to the results thereof, made by or on behalf of any of the Underwriters or by
or on behalf of the Company or the officers or directors of the Company or any
controlling person of the Company, (ii) acceptance of the Shares and payment for
them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters pursuant to
clause (i) or (viii) of the second paragraph of this Section 11 as a result of
any act or omission of the Company or because of the failure or refusal on the
part of the Company to comply with the terms or to fulfill any of the conditions
of this Agreement, the Company agrees to reimburse you for all reasonable
out-of-pocket expenses (including the reasonable fees and disbursements of
counsel) incurred by you. Notwithstanding any termination of this Agreement, the
Company shall be liable for all expenses which it agrees to pay pursuant to
Section 7 hereof.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Subsidiaries, the
Underwriters, any indemnified party referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The terms "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
12. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to it at 0000
Xxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxxx X.
Xxxxxxx, with a copy to Xxxxx & Xxxxx, L.L.P., at 0000 Xxx Xxxxx Xxxxx, Xxxxxxx,
Xxxxx 00000, Attention: L. Xxxxxxx Xxxxxx, Esq., (b) if to any Underwriter, to
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000,
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Attention: Syndicate Department and, in each case, with a copy to Xxxxxx &
Xxxxxx L.L.P., 0000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: T. Xxxx
Xxxxx, or in any case to such other address as the person to be notified may
have requested in writing.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
-29-
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument. Please confirm that the foregoing
correctly sets forth the agreement among the Company and you.
Very truly yours,
PRIDE PETROLEUM SERVICES, INC.
By: /s/ XXXX XXXXXX
Name: Xxxx XxXxxx
Title:Chief Financial Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
Date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ C. XXXXXXXX XXX
Name: C. Xxxxxxxx Xxx
Title:Vice President
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SCHEDULE I
FIRM SHARES
-----------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation 2,020,000
Jefferies & Company, Inc. 1,212,000
Xxxxxx X. Xxxxx & Co. Incorporated 202,000
Xxxxxx Xxxxxx & Company, Inc. 202,000
Xxxxxxx & Company International 202,000
Southcoast Capital Corporation 202,000
Xxxxxxx, Xxxxxx Inc. 65,000
Xxxxxxx Rice & Company L.L.C. 65,000
Principal Financial Securities, Inc. 65,000
Xxxxxxxx Xxxxxx Refsnes, Inc. 65,000
---------
Total 4,300,000
