1
Draft of November 13, 1997
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NATIONAL-OILWELL, INC.
(a Delaware corporation)
8,560,000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
Dated: November __, 1997
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Draft of November 13, 1997
TABLE OF CONTENTS
U.S. PURCHASE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Representations and Warranties by the Company . . . . . . . . . . . . . . . . . . . . . . . . 4
(i) Compliance with Registration Requirements . . . . . . . . . . . . . . . . . . . . . . 4
(ii) Incorporated Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(iii) Independent Accountants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(iv) Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(v) No Material Adverse Change in Business . . . . . . . . . . . . . . . . . . . . . . . 6
(vi) Good Standing of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(vii) Good Standing of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(viii) Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(ix) Authorization of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(x) Authorization and Description of Securities . . . . . . . . . . . . . . . . . . . . . 8
(xi) Absence of Defaults and Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(xii) Absence of Labor Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(xiii) Absence of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(xiv) Accuracy of Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(xv) Possession of Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . 9
(xvi) Absence of Further Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(xvii) Possession of Licenses and Permits . . . . . . . . . . . . . . . . . . . . . . . . 10
(xviii) Title to Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(xix) Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(xx) Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(xxi) Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(xxii) Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(xxiii) Accounting Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(xxiv) Stockholders Consents and Agreements . . . . . . . . . . . . . . . . . . . . . . . 12
(b) Representations and Warranties by the Selling Stockholders . . . . . . . . . . . . . . . . 12
(i) Accurate Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(ii) Authorization of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(iii) Good Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(iv) Due Execution of Power of Attorney and Custody Agreement . . . . . . . . . . . . . 13
(v) Absence of Manipulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(vi) Absence of Further Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(vii) Restriction on Sale of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 14
(viii) Certificates Suitable for Transfer . . . . . . . . . . . . . . . . . . . . . . . . 14
(ix) No Association with NASD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(i)
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(c) Officer's Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing . . . . . . . . . . . . . . . . . . . . . . 15
(a) Initial Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(b) Option Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(c) Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(d) Denominations; Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3. Covenants of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Compliance with Securities Regulations and Commission Requests . . . . . . . . . . . . . . 17
(b) Filing of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Delivery of Registration Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(d) Delivery of Prospectuses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(e) Continued Compliance with Securities Laws . . . . . . . . . . . . . . . . . . . . . . . . . 18
(f) Blue Sky Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(g) Rule 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(h) Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(i) Restriction on Sale of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(j) Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(a) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(b) Expenses of the Selling Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(c) Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(d) Allocation of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 5. Conditions of U.S. Underwriters' Obligations . . . . . . . . . . . . . . . . . . . . . . . 21
(a) Effectiveness of Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(b) Opinion of Counsel for Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(c) Opinions of General Counsel and Other Special Counsel . . . . . . . . . . . . . . . . . . . 21
(d) Opinion of Counsel for Selling Stockholders . . . . . . . . . . . . . . . . . . . . . . . . 21
(e) Opinion of Counsel for U.S. Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . 22
(f) Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(g) Certificate of Selling Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(h) Accountant's Comfort Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(i) Bring-down Comfort Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(j) Approval of Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(k) No Objection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(l) Lock-up Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(m) Purchase of Initial International Securities . . . . . . . . . . . . . . . . . . . . . . . 23
(n) Conditions to Purchase of U.S. Option Securities . . . . . . . . . . . . . . . . . . . . . 23
(ii)
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(i) Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(ii) Certificate of Selling Stockholders . . . . . . . . . . . . . . . . . . . . . . . . 23
(iii) Opinion of Counsel for Company . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(iv) Opinion of General Counsel and Other Special Counsel . . . . . . . . . . . . . . . 24
(v) Opinion of Counsel for the Selling Stockholders . . . . . . . . . . . . . . . . . . 24
(vi) Opinion of Counsel for U.S. Underwriters . . . . . . . . . . . . . . . . . . . . . 24
(vii) Bring-down Comfort Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(o) Additional Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(p) Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(a) Indemnification of U.S. Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(b) Indemnification of Company, Directors and Officers
and the Selling Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(c) Actions against Parties; Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(d) Settlement without Consent if Failure to Reimburse . . . . . . . . . . . . . . . . . . . . 27
(e) Cumulative Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 7. Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 8. Representations, Warranties and Agreements to Survive Delivery . . . . . . . . . . . . . . 29
SECTION 9. Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(a) Termination; General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(b) Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 10. Default By One or More of the U.S. Underwriters . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 11. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 12. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 13. Governing Law and Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 14. Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(iii)
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SCHEDULES
Schedule A - List of Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sch A-1
Schedule B - List of Selling Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sch B-1
Schedule C - Pricing Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sch C-1
Schedule D - List of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sch D-1
Schedule E - List of persons and entities subject to Lock-up . . . . . . . . . . . . . . . . . . . . . . Sch E-1
EXHIBITS
Exhibit A - Form of Lock-up Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
(iv)
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NATIONAL-OILWELL, INC.
(a Delaware corporation)
8,560,000 Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
November __, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
The Xxxxxxxx-Xxxxxxxx Company, LLC
Xxxxxxx & Company International
as U.S. Representatives of the several U.S. Underwriters
c/x Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
National-Oilwell, Inc., a Delaware corporation (the "Company"), and
the persons listed in Schedule B hereto (the "Selling Stockholders") confirm
their respective agreements with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other U.S.
Underwriters named in Schedule A hereto (collectively, the "U.S. Underwriters",
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Xxxxxxx Xxxxx, Goldman, Sachs & Co.,
Xxxxxx Xxxxxxx & Co. Incorporated, The Xxxxxxxx-Xxxxxxxx Company, LLC and
Xxxxxxx & Company International are acting as representatives (in such
capacity, the "U.S. Representatives"), with respect to (i) the sale by the
Selling Stockholders, acting severally and not jointly, and the purchase by the
U.S. Underwriters, acting severally and not jointly, of the respective numbers
of shares of Common Stock, par value $.01 per share, of the Company ("Common
Stock") set forth in said Schedule A and B hereto, and
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(ii) with respect to the grant by the Selling Stockholders, acting severally
and not jointly, to the U.S. Underwriters, acting severally and not jointly, of
the option described in Section 2(b) hereof to purchase all or any part of
1,284,000 additional shares of Common Stock to cover over-allotments, if any.
The aforesaid 8,560,000 shares of Common Stock (the "Initial U.S. Securities")
to be purchased by the U.S. Underwriters and all or any part of the 1,284,000
shares of Common Stock subject to the option described in Section 2(b) hereof
(the "U.S. Option Securities") are hereinafter called, collectively, the "U.S.
Securities."
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the offering by Selling Stockholders, acting severally and not
jointly, of an aggregate of 2,140,000 shares of Common Stock (the "Initial
International Securities") through arrangements with certain underwriters
outside the United States and Canada (the "International Managers") for which
Xxxxxxx Xxxxx International, Xxxxxxx Xxxxx International, Xxxxxx Xxxxxxx
International Limited, The Xxxxxxxx-Xxxxxxxx Company, LLC and Xxxxxxx & Company
International acting as lead managers (the "Lead Managers") and the grant by
certain Selling Stockholders, acting severally and not jointly, to the
International Managers, acting severally and not jointly, of an option to
purchase all or any part of the International Managers' pro rata portion of up
to 321,000 additional shares of Common Stock solely to cover overallotments, if
any (the "International Option Securities" and, together with the U.S. Option
Securities, the "Option Securities"). The Initial International Securities and
the International Option Securities are hereinafter called the "International
Securities." It is understood that the Selling Stockholders are not obligated
to sell and the U.S. Underwriters are not obligated to purchase, any Initial
U.S. Securities unless all of the Initial International Securities are
contemporaneously purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters," the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities," and the U.S. Securities, and the International Securities
are hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated (in such capacity, the "Global Coordinator").
The Selling Stockholders understand that the U.S. Underwriters propose
to make a public offering of the U.S. Securities as soon as the U.S.
Representatives deem advisable after this Agreement has been executed and
delivered.
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The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-__________________)
covering the registration of the Securities under the Securities Act of 1933,
as amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses. Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (b) of
Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the Company has
elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare
and file a term sheet (a "Term Sheet") in accordance with the provisions of
Rule 434 and Rule 424(b). Two forms of prospectus are to be used in connection
with the offering and sale of the Securities: one relating to the U.S.
Securities (the "Form of U.S. Prospectus") and one relating to the
International Securities (the "Form of International Prospectus"). The Form of
International Prospectus is identical to the Form of U.S. Prospectus, except
for the front cover and back cover pages and the information under the caption
"Underwriting" and the inclusion in the Form of International Prospectus of a
section under the caption "Certain United States Tax Considerations for
Non-United States Holders." The information included in any such prospectus or
in any such Term Sheet, as the case may be, that was omitted from such
registration statement at the time it became effective but that is deemed to be
part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information." Each Form of U.S. Prospectus and Form of International
Prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto,
schedules thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became
effective and including the Rule 430A Information and the Rule 434 Information,
as applicable, is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final Form of U.S. Prospectus and the final Form of
International Prospectus, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the forms first
furnished to the Underwriters for use in connection with the offering of the
Securities are herein called the "U.S. Prospectus" and the "International
Prospectus," respectively, and collectively, the "Prospectuses." If Rule 434
is relied on, the terms "U.S. Prospectus" and "International Prospectus" shall
refer to the preliminary U.S. Prospectus dated November ____, 1997 and
preliminary International Prospectus dated November ____, 1997, respectively,
each together with the applicable Term Sheet and all references in this
Agreement to the date of such Prospectuses shall mean the date of the
applicable Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the U.S. Prospectus, the
International Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be
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deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of U.S.
Prospectus and Form of International Prospectus) or the Prospectuses (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information as and to the extent
incorporated by reference in the Registration Statement, any preliminary
prospectus (including the Form of U.S. Prospectus and Form of International
Prospectus) or the Prospectuses, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectuses shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934 (the "1934
Act") as and to the extent incorporated by reference in the Registration
Statement, such preliminary prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each U.S. Underwriter as of the date hereof, as of
the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b), hereof and agrees with each U.S.
Underwriter, as follows:
(i) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Time (and, if any U.S.
Option Securities are purchased, at the Date of Delivery), the
Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and 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 to make the statements therein not
misleading. Neither of the Prospectuses nor any amendments or
supplements thereto, at the time the Prospectuses or any amendments
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or supplements thereto were issued and at the Closing Time (and, if
any U.S. Option Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. If Rule 434 is used, the
Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the U.S.
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any U.S. Underwriter through
the U.S. Representatives expressly for use in the Registration
Statement or the U.S. Prospectus.
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated
or deemed to be incorporated by reference in the Registration
Statement and the Prospectuses, when they became effective or at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations or the 1934 Act and the rules
and regulations of the Commission thereunder (the "1934 Act
Regulations"), as applicable, and, when read together with the other
information in the Prospectuses, at the time the Registration
Statement became effective, at the time the Prospectuses were issued
and at the Closing Time (and, if any U.S. Option Securities are
purchased, at the Date of Delivery), 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 to make the statements
therein not misleading.
(iii) Independent Accountants. Each of the accountants who
certified the financial statements and supporting schedules included
or incorporated by reference in the Registration Statement are, to the
knowledge of the Company, independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements of
the Company included or incorporated by reference in the Registration
Statement and the Prospectuses, present fairly in all material
respects the financial position of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, at the dates
indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its consolidated
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subsidiaries, or such other entity, as the case may be, for the
periods specified in conformity with generally accepted accounting
principles ("GAAP"), except for the omission of detailed information
and footnotes in the case of unaudited interim financial statements
included or incorporated by reference therein. The selected financial
data and the summary financial information included in the
Prospectuses present fairly the information shown therein and have
been compiled on a basis consistent with that of the financial
statements included or incorporated by reference in the Registration
Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein,
(A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered
as one enterprise, and (C) except for a stock dividend paid on
November 18, 1997 to holders of Common Stock and Exchangeable Shares
("Exchangeable Shares") of Dreco Energy Services Ltd. ("Dreco") on the
record date therefor as described in the Prospectuses, there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and to enter
into and perform its obligations under this Agreement; and the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each of the
subsidiaries of the Company identified on Schedule D hereto (each a
"Subsidiary" and, collectively, the "Subsidiaries"), which includes
each "significant subsidiary" of the Company (as such term is defined
in Rule 1-02 of Regulation S-X), has been duly organized and is
validly existing as a corporation or a limited partnership, as the
case may be, in good standing under the laws of the jurisdiction of
its incorporation or formation, has corporate (or partnership) power
and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly qualified as a
foreign corporation or limited partnership, as the case may be, to
transact business and is in good standing in each jurisdiction in
which such qualification is
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required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the Registration Statement, all of
the issued and outstanding capital stock or partnership interests of
each such Subsidiary has been duly authorized and validly issued, to
the extent consisting of shares of capital stock of a corporation is
fully paid and non-assessable, and is owned by the Company, directly
or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of, and none of the outstanding
partnership interests in, any Subsidiary was issued in violation of
the preemptive or similar rights of any securityholder or partner of
such Subsidiary. The only subsidiaries of the Company are (a) the
subsidiaries listed on Schedule D hereto and (b) certain other
subsidiaries which, considered in the aggregate as a single
Subsidiary, do not constitute a "significant subsidiary" as defined in
Rule 1-02 of Regulation S-X.
(viii) Capitalization. The authorized capital stock of the
Company consists of (i) 75,000,000 shares of Common Stock, of which
[51,271,368] shares are issued and outstanding as of [November 18,
1997], (ii) 10,000,000 shares of preferred stock, par value $.01 per
share ("Preferred Stock") of which no shares are outstanding and (iii)
Special Voting Stock of which one share is outstanding. As of
[November 18, 1997], there were issued and outstanding ____________
Exchangeable Shares of Dreco, each of which is exchangeable into an
equal number of shares of Common Stock. Since [November 18, 1997], no
shares of capital stock of the Company have been issued except (i)
upon the exchange of outstanding Exchangeable Shares and (ii) upon the
exercise of issued and outstanding options granted under the Company's
Stock Award and Long-Term Incentive Plan, the Company's Value
Appreciation Plans and the Dreco Amended and Restated 1989 Employee
Incentive Stock Option Plan. All the issued and outstanding capital
stock of Dreco other than the Exchangeable Shares are owned
beneficially and of record by the Company. The outstanding shares of
capital stock of the Company (including without limitation the
Securities) have been, and the shares of Common Stock issuable upon
the exchange of the issued and outstanding Exchangeable Shares will
be, duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company was issued, and none of the shares of Common Stock issuable
upon the exchange of the issued and outstanding Exchangeable Shares
will be issued, in violation of the preemptive or other similar rights
of any securityholder of the Company. The Exchangeable Shares of
Dreco have been duly authorized and validly issued by Dreco and
represent the valid and binding obligations of the Company and Dreco,
enforceable in accordance with their terms. The shares of Common
Stock to be issued upon the exchange of the Exchangeable Shares have
been duly authorized and validly reserved for issuance upon the
exercise of the Exchangeable Shares. There are no outstanding
options, warrants or similar rights to purchase or otherwise acquire
from the Company additional shares of capital stock of the Company or
Dreco, except pursuant to options granted under the Company's Stock
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Award and Long-Term Incentive Plan, the Company's Value Appreciation
Plans and the Dreco Amended and Restated 1989 Employee Incentive Stock
Option Plan.
(ix) Authorization of Agreement. This Agreement and the
International Purchase Agreement have been duly authorized, executed
and delivered by the Company.
(x) Authorization and Description of Securities. The
Securities to be purchased by the U.S. Underwriters and the
International Managers from the Selling Stockholders are duly
authorized, validly issued, fully paid and non-assessable, provided,
in respect of the Securities to be sold by the Selling Stockholders
after the exchange of the Exchangeable Shares or the exercise of
options, such Securities have been duly authorized, and when issued
and delivered by the Company prior to the Closing Time, will be
validly issued, fully paid and non-assessable. The Common Stock
conforms in all material respects to all statements relating thereto
contained in the Prospectuses and such description conforms in all
material respects to the rights set forth in the instruments defining
the same; no holder of the Securities will be subject to personal
liability solely by reason of being such a holder; and the issuance of
the Securities is not subject to the preemptive or other similar
rights of any securityholder of the Company or its subsidiaries.
(xi) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of its charter or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (collectively, "Agreements and
Instruments") except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance
of this Agreement and the International Purchase Agreement and the
consummation of the transactions contemplated in this Agreement, the
International Purchase Agreement and in the Registration Statement and
compliance by the Company with its obligations under this Agreement
and the International Purchase Agreement have been duly authorized by
all necessary corporate action and do not and will not, whether with
or without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
or any subsidiary pursuant to, the Agreements and Instruments (except
for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
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assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company
or any subsidiary.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which may
reasonably be expected to result in a Material Adverse Effect, or
which may reasonably be expected to materially and adversely affect
the consummation of the transactions contemplated in this Agreement
and the International Purchase Agreement or the performance by the
Company of its obligations hereunder or thereunder; the aggregate of
all pending legal or governmental proceedings to which the Company or
any subsidiary is a party or of which any of their respective property
or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectuses or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xv) Possession of Intellectual Property. Except to the
extent it would not result in a Material Adverse Effect, the Company
and its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them; and neither
the Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the
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subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering or sale of
the Securities by the Selling Stockholders under this Agreement and
the International Purchase Agreement or the consummation of the
transactions contemplated by this Agreement and the International
Purchase Agreement (including, without limitation, the exchange of the
Exchangeable Shares for and issuance of the Securities prior to the
Closing), except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations and foreign or
state securities or blue sky laws.
(xvii) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by
them, and are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to possess or to
comply would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests (except purchase money security interests),
claims, restrictions or encumbrances of any kind except such as (a)
are disclosed in the Prospectuses or (b) do not, singly or in the
aggregate, 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 or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in the
Prospectuses, are in full force and effect, and neither the Company
nor any subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the
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16
Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company
or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xix) Investment Company Act. The Company is not, and upon
the sale of the Securities as herein contemplated will not be, an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as disclosed in the
Registration Statement or except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no pending
or threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its subsidiaries and (D) there are
no events or circumstances that may reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating
to Hazardous Materials or any Environmental Laws.
(xxi) Registration Rights. There are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement, except to the
extent the Company is in compliance with such rights or such rights
have been waived.
(xxii) Insurance. The Company maintains reasonably adequate
insurance for the business conducted by the Company and its
subsidiaries.
(xxiii) Accounting Controls. The Company and the
Subsidiaries maintain a system of accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in
accordance with the management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in
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17
conformity with generally accepted accounting principles and to
maintain asset accountability; (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 the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxiv) Stockholders Consents and Agreements. The Company
has obtained all consents from and provided all requisite notices to,
or otherwise secured all requisite waivers from, any other
stockholders required in connection with the sale of the Securities.
(b) Representations and Warranties by the Selling Stockholders.
Each Selling Stockholder, severally and not jointly, represents and warrants to
each Underwriter as of the date hereof, as the Closing Time, and, if the
Selling Stockholder is selling Option Securities on a Date of Delivery, as of
each such Date of Delivery, and agrees with each Underwriter, as follows:
(i) Accurate Disclosure. To the best knowledge of such
Selling Stockholder, the representations and warranties of the Company
contained in Section 1(a) hereof are true and correct; such Selling
Stockholder has reviewed the Registration Statement and the
Prospectuses and, to the knowledge of such Selling Stockholder,
neither the Prospectuses nor any amendments or supplements thereto
includes any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; such Selling Stockholder is not prompted to sell the
Securities to be sold by such Selling Stockholder hereunder by any
information concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectuses.
(ii) Authorization of Agreements. Each Selling
Stockholder has, and as of the Closing Time or Date of Delivery will
have, the full right, power and authority, and all authorization and
approval required by law, to enter into this Agreement and an
Irrevocable Power of Attorney and a Custody Agreement (collectively,
the "Power of Attorney and Custody Agreement") and to sell, transfer
and deliver the Securities to be sold by such Selling Stockholder
hereunder. The execution and delivery of this Agreement and the Power
of Attorney and Custody Agreement by or on behalf of such Selling
Stockholder and the sale and delivery of the Securities to be sold by
such Selling Stockholder and the consummation of the transactions
contemplated herein and compliance by such Selling Stockholder and do
not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any tax,
lien, charge or encumbrance upon the Securities to be sold by such
Selling Stockholder or any property or assets of such Selling
Stockholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other
agreement or instrument to which such Selling Stockholder is a party
or by which such
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Selling Stockholder may be bound, or to which any of the property or
assets of such Selling Stockholder is subject, nor will such action
result in any violation of the provisions of the charter or by-laws or
other organizational instrument of such Selling Stockholder, if
applicable, or any applicable treaty, law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over such Selling Stockholder or any of its properties.
(iii) Good Title. Such Selling Stockholder has (provided,
(i) if such Selling Stockholder currently holds Exchangeable Shares,
such Selling Stockholder represents as of the date of this Agreement
only with respect to such Exchangeable Shares and (ii) if such Selling
Stockholder currently holds options, such Selling Stockholder
represents as of the date of this Agreement only with respect to such
options and the current exercisability of such options) and in any
case will at the Closing Time and, if any Option Securities are
purchased, on the Date of Delivery have good title to the Securities
to be sold by such Selling Stockholder hereunder, free and clear of
any security interest, mortgage, pledge, lien, charge, claim, equity
or encumbrance of any kind, other than pursuant to this Agreement and
the International Purchase Agreement; provided, the Securities are
currently subject to applicable restrictions on transfer under the
1933 Act; and upon delivery of such Securities and payment of the
purchase price therefor as herein contemplated assuming each such
Underwriter has no notice of any adverse claim, each of the
Underwriters will receive good title to the Securities purchased by it
from such Selling Stockholder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance
of any kind.
(iv) Due Execution of Power of Attorney and Custody
Agreement. Such Selling Stockholder has duly executed and delivered,
in the forms heretofore furnished to the Representatives, the Power of
Attorney and Custody Agreement with X. XxXxxx Dunwoody, Xxxxxxx X.
XxxXxxxxx and Xxxx X. Xxxxx or any of them, as attorneys-in-fact (the
"Attorneys-in-Fact") and Texas Commerce Bank National Association, as
custodian (the "Custodian"); the Custodian is authorized to exchange
the Exchangeable Shares or exercise options under designated option
agreements, if applicable, and to deliver the Securities to be sold by
such Selling Stockholder hereunder and to accept payment therefor; and
the requisite Attorneys-in-Fact are authorized to execute and deliver
this Agreement and the certificate referred to in Section 5(f) or that
may be required pursuant to Section(s) 5(l) and 5(m) on behalf of such
Selling Stockholder, to sell, assign and transfer to the Underwriters
the Securities to be sold by such Selling Stockholder hereunder, to
determine the purchase price to be paid by the Underwriters to such
Selling Stockholder, as provided in Section 2(a) hereof, to authorize
the delivery of the Securities to be sold by such Selling Stockholder
hereunder, to accept payment therefor, and otherwise to act on behalf
of such Selling Stockholder in connection with this Agreement.
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(v) Absence of Manipulation. Such Selling Stockholder
has not taken, and will not take, directly or indirectly, any action
which is designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(vi) Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration, qualification
or decree of, any court or governmental authority or agency, domestic
or foreign, is necessary or required for the performance by each
Selling Stockholder of its obligations hereunder or in the Power of
Attorney and Custody Agreement, or in connection with the sale and
delivery of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as may have
previously been made or obtained or as may be required under the 1933
Act or the 1933 Act Regulations or under applicable foreign or state
securities laws.
(vii) Restriction on Sale of Securities. During a period
of 90 days from the date of the Prospectus, such Selling Stockholder
will not, without the prior written consent of Xxxxxxx Xxxxx, directly
or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, any share of Common
Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (including, without limitation, any
Exchangeable Shares) or request the Company to file any registration
statement under the 1933 Act with respect to any of the foregoing or
(ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any
such swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (i) the
Securities to be sold hereunder; (ii) the pledge of shares of Common
Stock or securities convertible into, or exchangeable or exercisable
for, Common Stock that are currently pledged as collateral for a loan
made to such person for any loan of an equal or lesser amount in
connection with the prepayment and cancellation of such loan by any
Selling Stockholder, provided that the pledgee agrees to be bound by a
similar lock-up agreement with respect to such securities; (iii) the
transfer by a Selling Stockholder of shares of Common Stock or
securities convertible into, or exchangeable or exercisable for,
Common Stock in a private transaction to a person that directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Selling
Stockholder (an "Affiliate") if such Affiliate agrees prior to such
transfer in writing to be bound by a similar lock-up agreement; (iv)
bona fide gifts by such Selling Stockholder of shares of Common Stock
or securities convertible into, or exchangeable or exercisable for,
Common Stock to persons who agree prior to such transfer to be bound
by a similar lock-up agreement.
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(viii) Certificates Suitable for Transfer. Certificates for
all of the Securities to be sold by such Stockholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by
duly executed instruments of transfer or assignment in blank with
signatures guaranteed, have been placed in custody with the Custodian
with irrevocable conditional instructions to deliver such Securities
to the Underwriters pursuant to this Agreement.
(ix) No Association with NASD. Neither such Selling
Stockholder nor any of his, her or its affiliates directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, Section 1(m) of the
By-laws of the National Association of Securities Dealers, Inc.), any
member firm of the National Association of Securities Dealers, Inc.
(c) Officer's Certificates. Any certificate signed by any officer
of the Company or any of its subsidiaries delivered to the Global Coordinator,
the U.S. Representatives or to counsel for the U.S. Underwriters shall be
deemed a representation and warranty by the Company to each U.S. Underwriter as
to the matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, each Selling Stockholder, severally and not jointly, agrees to sell to
each U.S. Underwriter, severally and not jointly, and each U.S. Underwriter,
severally and not jointly, agrees to purchase from each Selling Stockholder,
severally and not jointly, at the price per share set forth in Schedule B, the
number of Initial U.S. Securities set forth in Schedule A opposite the name of
such U.S. Underwriter, plus any additional number of Initial U.S. Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof bears to the total number of Initial
Securities, subject, in each case, to such adjustments among the Underwriters
as the Representatives in their sole discretion shall make to eliminate any
sales or purchases of fractional securities.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, each Selling Stockholder hereby grants an option
to the U.S. Underwriters, severally and not jointly, to purchase up to an
additional 1,284,000 shares of Common Stock in the respective number of shares
set forth opposite their respective names on Schedule B at the price per share
set forth in Schedule C, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial U.S.
Securities but not payable on the U.S. Option Securities. The option hereby
granted will expire 30 days after the date hereof and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial U.S. Securities upon notice by the Global Coordinator to the Company
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setting forth the number of U.S. Option Securities as to which the several U.S.
Underwriters are then exercising the option and the time and date of payment
and delivery for such U.S. Option Securities. Any such time and date of
delivery for the U.S. Option Securities (a "Date of Delivery") shall be
determined by the Global Coordinator, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time, as hereinafter defined. If the option is exercised as to all or
any portion of the U.S. Option Securities, each of the U.S. Underwriters,
acting severally and not jointly, will purchase that proportion of the total
number of U.S. Option Securities then being purchased which the number of
Initial U.S. Securities set forth in Schedule A opposite the name of such U.S.
Underwriter bears to the total number of Initial U.S. Securities, subject in
each case to such adjustments as the Global Coordinator in its discretion shall
make to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Xxxxxxx & Xxxxx L.L.P., 0000 Xxxxx Xxxxxxxx Xxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxx 00000, or at such other place as shall be agreed upon by the Global
Coordinator and the Selling Stockholders, at 10:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any
given day) business day after the date hereof (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten
business days after such date as shall be agreed upon by the Global
Coordinator, the Selling Stockholders and the Company (such time and date of
payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the U.S. Option
Securities are purchased by the U.S. Underwriters, payment of the purchase
price for, and delivery of certificates for, such U.S. Option Securities shall
be made at the above-mentioned offices, or at such other place as shall be
agreed upon by the Global Coordinator and the Company, on each Date of Delivery
as specified in the notice from the Global Coordinator to the Selling
Stockholders and Company.
Payment shall be made to the Selling Stockholders by checks or wire
transfer of immediately available funds to a bank account designated by the
Selling Stockholders, against delivery to the U.S. Representatives for the
respective accounts of the U.S. Underwriters of certificates for the U.S.
Securities to be purchased by them. It is understood that each U.S.
Underwriter has authorized the U.S. Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial U.S. Securities and the U.S. Option Securities, if any, which it has
agreed to purchase. Xxxxxxx Xxxxx, individually and not as representative of
the U.S. Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial U.S. Securities or the U.S. Option Securities,
if any, to be purchased by any U.S. Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such U.S. Underwriter from its
obligations hereunder.
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(d) Denominations; Registration. Certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least one full business day before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the
Initial U.S. Securities and the U.S. Option Securities, if any, will be made
available for examination and packaging by the U.S. Representatives in the City
of New York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with
each U.S. Underwriter and each Selling Stockholder as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the
Global Coordinator immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectuses or any amended Prospectuses shall have
been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectuses or for additional
information, and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event that it was
not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the
Global Coordinator notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to
the Prospectuses, whether pursuant to the 1933 Act, the 1934 Act or otherwise;
in addition, the Company will use its best efforts to furnish the Global
Coordinator with copies of any such documents a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file or use
any such document to which the Global Coordinator or counsel for the U.S.
Underwriters shall reasonably object during the period contemplated in Section
3(e) hereto.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the U.S. Representatives and counsel for the U.S.
Underwriters, without charge, signed
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copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and certificates of experts, and
will also deliver to the U.S. Representatives, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the U.S. Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the U.S.
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered
to each U.S. Underwriter, without charge, as many copies of each preliminary
prospectus as such U.S. Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each U.S. Underwriter, without charge,
during the period when the U.S. Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the U.S. Prospectus (as
amended or supplemented) as such U.S. Underwriter may reasonably request. The
U.S. Prospectus and any amendments or supplements thereto furnished to the U.S.
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The
Company will comply with the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement, the
International Purchase Agreement and in the Prospectuses. If at any time when
a prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the U.S.
Underwriters or for the Company, to amend the Registration Statement or amend
or supplement any Prospectus in order that the Prospectuses will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light
of the circumstances existing at the time it is delivered to a purchaser, or if
it shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement any Prospectus in order
to comply with the requirements of the 1933 Act or the 1933 Act Regulations,
the Company will promptly prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectuses
comply with such requirements, and the Company will furnish to the U.S.
Underwriters such number of copies of such amendment or supplement as the U.S.
Underwriters may reasonably request; provided, however, that any such amendment
or supplement filed after nine months from the date hereof shall be at the
expense of the U.S. Underwriters.
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(f) Blue Sky Qualifications. The Company will use its
best efforts, in cooperation with the U.S. Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Global Coordinator
may designate and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; provided, however, that
the Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Securities have been
so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Listing. The Securities are listed on the New York
Stock Exchange or, in the case of Securities issuable upon the exchange of the
Exchangeable Shares, the Company will use its best efforts to effect the
listing of such Securities on the New York Stock Exchange.
(i) Restriction on Sale of Securities. During a period
of 90 days from the date of the Prospectuses, the Company will not, without the
prior written consent of the Global Coordinator, directly or indirectly, (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock
(including, without limitation, any Exchangeable Shares) or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (i) any shares of Common Stock issued by the
Company upon the exercise or exchange of an option or warrant or the conversion
of a security outstanding on the date hereof and referred to in the Prospectus,
(ii) any shares of Common Stock issued or options to purchase Common Stock
granted pursuant to existing employee benefit plans of the Company referred to
in the Prospectus, (iii) any options or shares of Common Stock issued pursuant
to any non-employee director stock plan or dividend reinvestment plan of the
Company existing on the date hereof or (iv) any shares of Common Stock or any
securities convertible or exchangeable into Common Stock issued as payment of
any part of the purchase price for businesses which are acquired by the Company
(provided,
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however, that such shares shall be subject to restrictions that will prohibit
the transfer thereof until after the expiration of the 90-day lock-up period
described in the preceding sentence).
(j) Reporting Requirements. The Company, during the
period when the Prospectuses are required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company
will pay all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the printing and delivery
to the Underwriters of this Agreement, any Agreement among Underwriters and
such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Securities to
the Underwriters and the transfer of the Securities between the U.S.
Underwriters and the International Managers, (iv) the fees and disbursements of
the Company's counsel, accountants and other advisors, (v) the qualification of
the Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectuses and any
amendments or supplements thereto, (vii) the preparation, printing and delivery
to the Underwriters of copies of the Blue Sky Survey and any supplement
thereto, (viii) the fees and expenses of any transfer agent or registrar for
the Securities and (ix) the filing fees incident to, and the reasonable fees
and disbursements of counsel to the Underwriters in connection with, the review
by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Securities, and (x) the fees and expenses incurred in
connection with the listing of the Securities on the New York Stock Exchange.
(b) Expenses of the Selling Stockholders. The Selling
Stockholders will pay all expenses incident to the performance of their
respective obligations under, and the consummation of the transactions
contemplated by this Agreement, including any stamp duties, capital duties and
stock transfer taxes, if any, payable upon the sale of the Securities to the
U.S. Underwriters, and their transfer between the U.S. Underwriters pursuant to
an agreement between such U.S. Underwriters; provided, however, that the
Company has advised the U.S. Underwriters that the Company is paying the fees
and disbursements of counsel to the Selling Stockholders.
(c) Termination of Agreement. If this Agreement is terminated by
the U.S. Representatives in accordance with the provisions of Section 5 (other
than subparagraphs (m) and
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(n)), or Section 9(a)(i) hereof, the Company shall reimburse the U.S.
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the U.S. Underwriters.
(d) Allocation of Expenses. The provisions of this Section shall
not affect any agreement that the Company and the Selling Stockholders may make
for the sharing of such costs and expenses.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The
obligations of the several U.S. Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Stockholders contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company or on behalf of any Selling
Stockholder delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the U.S. Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule
434, a Term Sheet shall have been filed with the Commission in accordance with
Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the opinion, dated as of Closing Time, of
Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters in the form
previously agreed upon and to such further effect as counsel to the
Underwriters may reasonably request.
(c) Opinions of General Counsel and Other Special Counsel. At
Closing Time, the Representatives shall have received the opinion, dated as of
Closing Time, of Xxxx X. Nation, General Counsel of the Company, in form and
substance satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters in the
form previously agreed upon and to such further effect as counsel to the
Underwriters may reasonably request. In addition, the Representatives shall
have received the opinion, dated as of Closing Time, of Xxxxxx X. Xxxxxxx,
counsel for Dreco Energy Services Ltd., in the form previously agreed upon.
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(d) Opinion of Counsel for Selling Stockholders. At Closing Time,
the U.S. Representatives shall have received the opinions, dated as of Closing
Time, of Xxxxxxxxx & Xxxxxxxxx, L.L.P., counsel for the Selling Stockholders,
and Xxxxxxxx, Xxxxxxx, counsel for the Canadian Selling Stockholders, in form
and substance satisfactory to counsel for the U.S. Underwriters, together with
signed or reproduced copies of such letter for each of the other U.S.
Underwriters in the respective forms previously agreed upon and to such further
effect as counsel to the U.S. Underwriters may reasonably request.
(e) Opinion of Counsel for U.S. Underwriters. At Closing Time,
the U.S. Representatives shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxxx & Xxxxx L.L.P., counsel for the U.S. Underwriters,
together with signed or reproduced copies of such letter for each of the other
U.S. Underwriters with respect to the matters requested by the U.S.
Underwriters.
(f) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
U.S. Representatives shall have received a certificate executed on behalf of
the Company by the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) 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 are contemplated by the Commission.
(g) Certificate of Selling Stockholders. At Closing Time, the
U.S. Representatives shall have received a certificate of an Attorney-in-Fact
on behalf of each Selling Stockholder, severally and not jointly, dated as of
Closing Time, to the effect that (i) the representations and warranties of each
Selling Stockholder contained in Section 1(b) hereof are true and correct in
all respects with the same force and effect as though expressly made at and as
of Closing Time and (ii) each Selling Stockholder has complied in all material
respects with all agreements and all conditions on its part to be performed
under this Agreement at or prior to Closing Time.
(h) Accountant's Comfort Letters. At the time of the execution of
this Agreement, the U.S. Representatives shall have received from each of Xxxxx
& Xxxxx and, with respect to historical financial information concerning Xxxxx,
Xxxxxxx & Xxxxxxx a letter dated such date, in form and substance satisfactory
to the U.S. Representatives, together with signed or reproduced copies of such
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letters for each of the other U.S. Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectuses.
(i) Bring-down Comfort Letters. At Closing Time, the
Representatives shall have received from each of Xxxxx & Xxxxx and Coopers &
Xxxxxxx a letter, dated as of Closing Time, to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (h) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
(j) Approval of Listing. At Closing Time, the Securities shall
have been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(k) No Objection. The NASD has confirmed that it has not raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(l) Lock-up Agreements. At the date of this Agreement, the U.S.
Representatives shall have received an agreement substantially in the form of
Exhibit A hereto signed by the persons listed on Schedule E hereto.
(m) Purchase of Initial International Securities.
Contemporaneously with the purchase by the U.S. Underwriters of the Initial
U.S. Securities under this Agreement, the International Managers shall have
purchased the Initial International Securities under the International Purchase
Agreement.
(n) Conditions to Purchase of U.S. Option Securities. In the
event that the U.S. Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the U.S. Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any subsidiary of
the Company hereunder shall be true and correct as of each Date of Delivery
and, at the relevant Date of Delivery, the U.S. Representatives shall have
received:
(i) Officers' Certificate. A certificate, dated such
Date of Delivery, executed on behalf of the Company by the President
or a Vice President of the Company and the chief financial or chief
accounting officer of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(f) hereof remains
true and correct as of such Date of Delivery.
(ii) Certificate of Selling Stockholders. A certificate
dated such Date of Delivery, of an Attorney-in-Fact on behalf of each
Selling Stockholder, confirming that the certificate
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delivered at Closing Time pursuant to Section 5(g) remains true and
correct as of such Date of Delivery.
(iii) Opinion of Counsel for Company. The opinion of
Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Company, in form and
substance satisfactory to counsel for the U.S. Underwriters, dated
such Date of Delivery, relating to the U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(b) hereof.
(iv) Opinion of General Counsel and Other Special Counsel.
The opinions of Xxxx X. Xxxxxx, General Counsel of the Company, and
other counsel to the same effect as the opinions required by Section
5(c) hereof.
(v) Opinion of Counsel for the Selling Stockholders. The
opinions of Xxxxxxxxx & Xxxxxxxxx, L.L.P., counsel for the Selling
Stockholders, and Xxxxxxxx, Xxxxxxx, counsel for the Canadian Selling
Stockholders, in form and substance satisfactory to counsel for the
U.S. Underwriters, dated such Date of Delivery, relating to the U.S.
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required in Section 5(d)
hereof.
(vi) Opinion of Counsel for U.S. Underwriters. The
opinion of Xxxxxxx & Xxxxx X.X.X., counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the U.S. Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect
as the opinion required by Section 5(e) hereof.
(vii) Bring-down Comfort Letters. A letter from each of
Ernst & Xxxxx and Coopers & Xxxxxxx, in form and substance
satisfactory to the U.S. Representatives and dated such Date of
Delivery, substantially in the same form and substance as the letter
furnished to the U.S. Representatives pursuant to Section 5(h) hereof,
except that the "specified date" in the letter furnished pursuant to
this paragraph shall be a date not more than five days prior to such
Date of Delivery.
(o) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the U.S. Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the transfer and sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the U.S. Representatives and
counsel for the U.S. Underwriters.
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(p) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of U.S. Option
Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several U.S. Underwriters to purchase the relevant Option
Securities, may be terminated by the U.S. Representatives by notice to the
Company at any time at or prior to Closing Time or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that Sections 1,
6, 7 and 8 shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) Indemnification of U.S. Underwriters. The Company agrees to
indemnify and hold harmless each U.S. Underwriter and each person, if any, who
controls any U.S. Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act to the extent and in the manner set forth in
clauses (i), (ii) and (iii) below:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectuses (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) except as otherwise provided in Section 6(c) below,
against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above.
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Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless each U.S. Underwriter and each person, if any, who
controls any U.S. Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act with respect to information furnished in writing
by or on behalf of such Selling Stockholder expressly for use in the
Registration Statement, including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the U.S.
Prospectus (or any amendment or supplement thereto). Notwithstanding anything
in this Agreement to the contrary, each Selling Stockholder's aggregate
liability under this indemnity shall be limited to an amount equal to the net
proceeds (after deducting the underwriters' discount but before deducting
expenses) received by such Selling Stockholder from the sale of Securities
pursuant to this Agreement.
Notwithstanding the foregoing in this Section 6(a), (i) the foregoing
indemnity agreements shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any U.S. Underwriter
through the U.S. Representatives expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
U.S. Prospectus (or any amendment or supplement thereto) and (ii) the foregoing
indemnity agreements with respect to any untrue statement contained in or
omission from a preliminary prospectus shall not inure to the benefit of any
U.S. Underwriter (or any person controlling such U.S. Underwriter) from whom
the person asserting any such loss, liability, claim, damage or expense
purchased any of the Securities which are the subject thereof if such person
was not sent or given a copy of the U.S. Prospectus (as amended or
supplemented, if applicable) (in each case exclusive of the documents from
which information is incorporated by reference) at or prior to the written
confirmation of the sale of such Securities to such person (other than as a
result of the failure by the Company to comply with its obligations under
Section 3(d) hereof) and the untrue statement contained in or omission from
such preliminary prospectus was corrected in the U.S. Prospectus (as amended or
supplemented, if applicable).
(b) Indemnification of Company, Directors and Officers and the
Selling Stockholders. Each U.S. Underwriter severally agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, each of the Selling Stockholders, and each person, if
any, who controls the Company or such Selling Stockholder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
U.S. prospectus or the U.S. Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to the
Company by such U.S. Underwriter through the U.S.
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Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the U.S. Prospectus (or
any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of such
action on behalf of such indemnified party or parties and such indemnified
party or parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 6 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in
any one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the U.S. Representatives in the case of paragraph (a) of this
Section 6, representing the indemnified parties under such paragraph (a) who
are parties to such action or actions) or (ii) the indemnifying party does not
promptly retain counsel satisfactory to the indemnified party or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not
be liable for the costs and expenses of any settlement of such action effected
by such indemnified party without the consent of the indemnifying party. No
indemnifying party shall, without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential
parties thereto),
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unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement. Notwithstanding the immediately preceding
sentence, if at any time an indemnified party shall have requested in good
faith an indemnifying party to reimburse the indemnified party for specified
fees and expenses of counsel (the "Requested Expenses"), an indemnifying party
shall not be liable for any settlement of the nature contemplated by Section
6(a)(ii) that is effected without its consent (after satisfaction of each of
the conditions set forth in the immediately preceding sentence) if, prior to
the date of such settlement, such indemnifying party determines in good faith
that the Requested Expenses are not reasonable, reimburses such indemnified
party in accordance with such request for the portion of the Requested Expenses
it considers to be reasonable and provides written notice to the indemnified
party substantiating the fact that the unpaid balance of the Requested Expenses
is unreasonable.
(e) Cumulative Agreements. With respect to the Company and the
Selling Stockholders, the provisions of this Section shall not affect any
agreement between the Company and the Selling Stockholder with respect to
indemnification; provided, any such agreements shall not affect the rights of
the U.S. Underwriters or the obligations or liabilities of the Company and the
Selling Stockholders to the U.S. Underwriters under this Agreement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the U.S. Underwriters
on the other hand from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company and the Selling Stockholders on the one hand and of the U.S.
Underwriters on
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the other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company and the Selling
Stockholders on the one hand and the U.S. Underwriters on the other hand in
connection with the offering of the U.S. Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the U.S. Securities pursuant to this Agreement
(before deducting expenses) received by the Selling Stockholders and the total
underwriting discount received by the U.S. Underwriters, in each case as set
forth on the cover of the U.S. Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet, bear to the aggregate initial public
offering price of the U.S. Securities as set forth on such cover.
The relative fault of the Company and the Selling Stockholders on the
one hand and the U.S. Underwriters on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company and the Selling
Stockholders or by the U.S. Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the U.S. Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the U.S. 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 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (i) no Selling
Stockholder shall be required to contribute any amount in excess of the net
proceeds (after deducting the underwriters' discount but before deducting
expenses) received by such Selling Stockholder from the sale of Securities
pursuant to this Agreement and (ii) no Selling Stockholder shall be required to
contribute any amount under this Section 7 in excess of the losses,
liabilities, claims, damages or expenses resulting from a claim of untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relating to information furnished in writing by such
Selling Stockholder expressly for use in the Registration Statement, including
the Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the U.S. Prospectus (or any amendment or supplement
thereto).
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Notwithstanding the provisions of this Section 7, no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the U.S. Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise been required to pay by reason of any 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 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
U.S. Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
U.S. Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The U.S. Representatives may terminate
this Agreement, by notice to the Company and the Selling Stockholders, at any
time at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the U.S. Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of the U.S. Representatives,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or
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if trading generally on the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such
system or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 10. Default By One or More of the U.S. Underwriters. If one
or more of the U.S. Underwriters shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the U.S. Representatives
shall have the right, but not the obligation, within 24 hours thereafter, to
make arrangements for one or more of the non-defaulting U.S. Underwriters, or
any other underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the U.S. Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed
10% of the number of Securities to be purchased on such date, each of
the non-defaulting U.S. Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of
the number of Securities to be purchased on such date, this Agreement
or, with respect to any Date of Delivery which occurs after the
Closing Time, the obligation of the U.S. Underwriters to purchase the
Option Securities to be purchased and sold on such Date of Delivery
shall terminate without liability on the part of any non-defaulting
U.S. Underwriter.
No action pursuant to this Section shall relieve any defaulting U.S.
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the
obligation of the U.S. Underwriters to purchase the relevant Option
Securities, as the case may be, either the U.S. Representatives or the Selling
Stockholders shall have the right to postpone Closing Time or the relevant Date
of Delivery, as the case may be, for a period not
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exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectuses or in any other documents or
arrangements. As used herein, the term "U.S. Underwriter" includes any person
substituted for a U.S. Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the U.S. Underwriters shall be directed to the U.S. Representatives c/x
Xxxxxxx Xxxxx & Co. at North Tower, World Financial Center, New York, New York
10281-1201, attention of Xxxx Xxxxxx, Vice President. Notices to the Company
shall be directed to it at 0000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000,
attention of Xxxx X. Xxxxxx, Vice President and General Counsel. Notices to
the Selling Stockholders shall be directed to Xxxxx X. Xxxxxxx, Xxxxxxxxx &
Xxxxxxxxx, L.L.P., South Tower, Pennzoil Xxxxx, 000 Xxxxxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000.
SECTION 12. Parties. This Agreement shall each inure to the
benefit of and be binding upon the U.S. Underwriters, the Selling Stockholders
and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the U.S. Underwriters, the Selling
Stockholders and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the U.S. Underwriters, the
Selling Stockholders and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any U.S. Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Stockholders a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the U.S.
Underwriters, the Company and the Selling Stockholders in accordance with its
terms.
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Very truly yours,
NATIONAL-OILWELL, INC.
By:
------------------------------------
Name:
Title:
SELLING STOCKHOLDERS
By:
------------------------------------
As Attorney-in-Fact acting on behalf
of the Selling Stockholders named in
Schedule B hereto
By:
------------------------------------
As Attorney-in-Fact acting on behalf
of the Selling Stockholders named in
Schedule B hereto
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CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, XXXXX & CO.
XXXXXX XXXXXXX & CO. INCORPORATED
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
XXXXXXX & COMPANY INTERNATIONAL
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:
-----------------------------------
Authorized Signatory
For themselves and the other U.S. Representatives as
the U.S. Underwriters named in Schedule A hereto.
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SCHEDULE A
Number of Initial
U.S.
Name of U.S. Underwriter Securities
------------------------ ----------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx, Xxxxx & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxx Xxxxxxx & Co. Incorporated . . . . . . . . . . . . . . . . . . . . . . . .
The Xxxxxxxx-Xxxxxxxx Company, LLC . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx & Company International . . . . . . . . . . . . . . . . . . . . . . . . .
---------------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,560,000
====================
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SCHEDULE B
Number of Number of
Name of Selling Stockholder Initial Securities Option Securities
--------------------------- ------------------ -----------------
Xxxxx X. Xxxxxxxx . . . . . . . . . . . . . . . . . . 120,000 18,000
X. Xxxxxxx Xxxxx . . . . . . . . . . . . . . . . . . 16,000 2,400
Xxxxx X. Xxxxxx . . . . . . . . . . . . . . . . . . . 160,000 24,000
Xxxx X. Xxxxx. . . . . . . . . . . . . . . . . . . . 120,000 18,000
Xxxxxxxxx X. Xxxxxxx . . . . . . . . . . . . . . . . 400,000 60,000
Xxxxxx X. Xxxxxxxx . . . . . . . . . . . . . . . . . 240,000 36,000
Xxxx X. Staff . . . . . . . . . . . . . . . . . . . . 96,000 14,400
[Staff Trusts] . . . . . . . . . . . . . . . . . . . 416,000 62,400
First Reserve Fund V, Limited Partnership . . . . . . 105,603 15,840
First Reserve Fund VI, Limited Partnership . . . . . 2,428,800 364,320
First Reserve Fund V-2, Limited Partnership . . . . . 105,603 15,840
General Electric Capital Corporation 832,000 124,800
DPI Oil Service Partners Limited Partnership . . . . 3,008,294 451,244
DPI Partners II . . . . . . . . . . . . . . . . . . . 239,706 35,956
X.X. Xxxxxxxxx . . . . . . . . . . . . . . . . . . . 88,000 13,200
Xxxxx X. Xxxx . . . . . . . . . . . . . . . . . . . . 160,000 24,000
--------- ---------
Total . . . . . . . . . . . . . . . . . . . . . . . . 8,560,000 1,284,000
========= =========
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SCHEDULE C
NATIONAL-OILWELL, INC.
8,560,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $____.
2. The purchase price per share for the U.S. Securities to be
paid by the several U.S. Underwriters shall be $_____, being an amount equal to
the initial public offering price set forth above less $_____ per share;
provided that the purchase price per share for any U.S. Option Securities
purchased upon the exercise of the over-allotment option described in Section
2(b) shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial U.S.
Securities but not payable on the U.S. Option Securities.
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SCHEDULE D
List of Subsidiaries
U.S. Subsidiaries
Natoil, Inc.
NOW Oilfield Services, Inc
National-Oilwell, L.P.
National-Oilwell International, Inc.
Dreco, Inc.
Other Subsidiaries
Dreco Energy Services Ltd.
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SCHEDULE E
List of Persons and Entities
Subject to Lock-up
Xxxxx X. Xxxxxxx XXX, on behalf of the Trust created pursuant to the
National-Oilwell
Supplemental Savings Plan
Xxxxxx X. Xxxxxxx
Xxxx X. Nation
Xxxx X. XxXxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxx X. Xxxxx III
X. XxXxxx Xxxxxxxx
Xxxxxxx X. XxxXxxxxx
Xxxxx X. Xxxxxxxxx
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EXHIBIT A
LOCK-UP LETTER
November 10, 1997
XXXXXXX XXXXX & CO. Xxxxxxx Xxxxx International
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Xxxxxxx Xxxxx International
Incorporated Xxxxxx Xxxxxxx & Co. International
Xxxxxxx, Xxxxx & Co. Limited
Xxxxxx Xxxxxxx & Co. Incorporated The Xxxxxxxx-Xxxxxxxx Company, LLC
The Xxxxxxxx-Xxxxxxxx Company, LLC Xxxxxxx & Company International
Xxxxxxx & Company International as Lead Managers for the several
as U.S. Representatives of the several International Managers
U.S. Underwriters c/x Xxxxxxx Xxxxx International
c/x Xxxxxxx Xxxxx & Co. Ropemaker Place
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx 00 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx Xxxxxx XX0X 0XX
World Financial Center England
New York, New York 10281-1209
Re: Proposed Public Offering of National-Oilwell, Inc. Common Stock
Dear Sirs:
The undersigned stockholder and/or officer and/or director of
National-Oilwell, Inc., a Delaware corporation (the "COMPANY"), understands
that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
("XXXXXXX XXXXX"), Xxxxxxx, Xxxxx & Co., Xxxxxx Xxxxxxx & Co. Incorporated, The
Xxxxxxxx-Xxxxxxxx Company, LLC and Xxxxxxx & Company International propose to
enter into a U.S. Purchase Agreement and Xxxxxxx Xxxxx International, Xxxxxxx
Xxxxx International, Xxxxxx Xxxxxxx & Co. International Limited, The
Xxxxxxxx-Xxxxxxxx Company, LLC and Xxxxxxx & Company International propose to
enter into an International Purchase Agreement (collectively, the "PURCHASE
AGREEMENTS") with the Company and certain holders of securities of the Company
named therein (the "SELLING STOCKHOLDERS") providing for the public offering of
shares (the "SECURITIES") of the Company's common stock, par value $.01 per
share (the "COMMON STOCK"), by the Selling Stockholders. In recognition of the
benefit that such an offering will confer upon the undersigned as a stockholder
and/or officer and/or director of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the undersigned agrees with each underwriter to be named in the Purchase
Agreements that, during a period of 90 days from the date of the Purchase
Agreements, the
Exhibit A-1
46
undersigned will not, without the prior written consent of Xxxxxxx Xxxxx,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase any option, or contract to sell or grant any
option, right or warrant for the sale of, or otherwise dispose of or transfer
any shares of the Company's Common Stock or any securities convertible into, or
exchangeable or exercisable for, Common Stock, whether now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or file any registration statement
under the Securities Act of 1933, as amended, with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities,
in cash or otherwise; provided, (i) shares of Common Stock may be sold by any
Affiliate (as defined below) of the undersigned pursuant to the Purchase
Agreements; (ii) any person with shares of Common Stock or securities
convertible into, or exchangeable or exercisable for, Common Stock that are
currently pledged as collateral for a loan made to such person may pledge such
shares of Common Stock or securities convertible into, or exchangeable or
exercisable for, Common Stock as collateral for any loan of an equal or lesser
amount in connection with the prepayment and cancellation of such loan,
provided that the pledgee agrees to be bound by a similar lock-up agreement
with respect to such securities; (iii) shares of Common Stock or securities
convertible into, or exchangeable or exercisable for, Common Stock may be
transferred by the undersigned in a private transaction to a person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the undersigned (an
"AFFILIATE") if such Affiliate agrees prior to such transfer in writing to be
bound by a similar lock-up agreement; (iv) shares of Common Stock or securities
convertible into, or exchangeable or exercisable for, Common Stock may be
transferred as bona fide gifts by stockholders to persons who agree prior to
such transfer to be bound by a similar lock-up agreement; and (v) shares of
Common Stock or securities convertible into, or exchangeable or exercisable
for, Common Stock held by the trust pursuant to the Company's Supplemental
Savings Plan may be transferred to a beneficial owner of such shares who is
subject to a similar lock-up agreement pursuant to an event of termination.
Very truly yours,
Signature:
----------------------------
Print Name:
--------------------------
Title (if applicable):
---------------
Exhibit A-2
