1
EXHIBIT 1.2
7,000,000 SHARES
FALCON DRILLING COMPANY, INC.
COMMON STOCK
($.01 PAR VALUE)
SUBSCRIPTION AGREEMENT
London, England
November , 1996
To: CS FIRST BOSTON LIMITED
____________________________
____________________________
c/o: CS FIRST BOSTON LIMITED ("CSFBL")
Xxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx X00 0XX
Dear Sirs:
1. Introductory. Falcon Drilling Company, Inc., a Delaware
corporation ("Company"), proposes to issue and sell ("International Offering")
to the several Managers named in Schedule A hereto ("Managers")
shares of its Common Stock, $.01 par value per share Securities, and the
stockholders listed in Schedule B hereto ("Selling Stockholders") propose to
sell an aggregate of shares of the Securities (all such shares
of Company Securities being hereinafter referred to as the "International Firm
Securities").
It is understood that the Company is concurrently entering into an
Underwriting Agreement, dated the date hereof ("Underwriting Agreement"), with
certain United States underwriters listed in Schedule A thereto (the "U.S.
Underwriters"), for whom CS First Boston Corporation ("CSFBC"), Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation, Salomon Brothers Inc, Xxxxxxxx
Xxxxxxxx & Co. and Xxxxxxx & Company International acting as representatives
(the "U.S. Representatives"), relating to the concurrent offering and sale of
shares of Securities ("U.S. Firm Securities") in the United States and Canada
("U.S. Offering").
In addition, the Company proposes to issue and sell and the Selling
Stockholders propose to sell (i) to the U.S. Underwriters, at the option of the
U.S. Underwriters, an aggregate of not more than additional
principal amount of Securities ("U.S. Optional Securities")
additional shares of Securities ("U.S. Optional Securities") and (ii) to the
Managers, at the option of the Managers, an aggregate of not more than
additional shares of Securities ("International Optional Securities") to be
provided in the respective amounts indicated on Schedule C hereto. The U.S.
Firm Securities and the U.S. Optional Securities are hereinafter called the
"U.S. Securities"; the International Firm Securities and the International
Optional Securities are hereinafter called the "International Securities"; the
U.S. Firm Securities and the International Firm Securities are hereinafter
called the "Firm Securities". The U.S. Securities and the International
Securities are collectively referred to as the "Offered Securities". To
provide for the coordination of their activities, the U.S. Underwriters and the
Managers have entered into an Agreement Between U.S. Underwriters and Managers
which permits them, among other things, to sell the Offered Securities to each
other for purposes of resale.
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The Company and the Selling Stockholders hereby agree with the several
Managers as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Managers that:
(i) A registration statement (No. 333- ), including a
form of prospectus relating to the U.S. Securities and a form of prospectus
relating to the International Securities being offered in the International
Offering has been filed with the Securities and Exchange Commission
("Commission") and either (i) has been declared effective under the Securities
Act of 1933 ("Act") and is not proposed to be amended or (ii) is proposed to be
amended by amendment or post-effective amendment. If such registration
statement (the "initial registration statement") has been declared effective,
either (A) an additional registration statement (the "additional registration
statement") relating to the Offered Securities may have been filed with the
Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so
filed, has become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (B) such an additional registration statement is proposed to be
filed with the Commission pursuant to Rule 462(b) and will become effective
upon filing pursuant to such Rule and upon such filing the Offered Securities
will all have been duly registered under the Act pursuant to the initial
registration statement and such additional registration statement. If the
Company does not propose to amend the initial registration statement or, if an
additional registration statement has been filed and the Company does not
propose to amend it, and if any post-effective amendment to either such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent amendment (if any) to
each such registration statement has been declared effective by the Commission
or has become effective upon filing pursuant to Rule 462(c) ("Rule 462(c)")
under the Act or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "Effective Time" with respect to the
initial registration statement or, if filed prior to the execution and delivery
of this Agreement, the additional registration statement means (i) if the
Company has advised CSFBL that it does not propose to amend such registration
statement, the date and time as of which such registration statement, or the
most recent post-effective amendment thereto (if any) filed prior to the
execution and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c), or (ii)
if the Company has advised CSFBL that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and time as
of which such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed prior
to the execution and delivery of this Agreement but the Company has advised
CSFBL that it proposes to file one, "Effective Time" with respect to such
additional registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule 462(b).
"Effective Date" with respect to the initial registration statement or the
additional registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its Effective Time,
including all material incorporated by reference therein, including all
information contained in the additional registration statement (if any) and
deemed to be a part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all information (if
any) deemed to be a part of the initial registration statement as of its
Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is
hereinafter referred to as the "Initial Registration Statement". The
additional registration statement, as amended at its Effective Time, including
the contents of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration Statement".
The Initial Registration Statement and the Additional Registration Statement
are hereinafter referred to collectively as the "Registration Statements" and
individually as a "Registration Statement". The form of prospectus relating to
the U.S. Securities and the form of prospectus relating to the International
Securities, each as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing
is required) as included in the Registration Statement, including all material
incorporated by reference in each such prospectus, are hereinafter referred to
as the "U.S. Prospectus" and the "International Prospectus", respectively, and
collectively as the "Prospectuses". No document has been or will be prepared
or distributed in reliance on Rule 434 under the Act.
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(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(i) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed, or will conform, in all respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and (iii) on the date of this Agreement, the Initial Registration
Statement and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this Agreement,
the Additional Registration Statement each conforms, and at the time
of filing of each of the Prospectuses pursuant to Rule 424(b) or (if
no such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectuses are included, each
Registration Statement and each of the Prospectuses will conform, in
all respects to the requirements of the Act and the Rules and
Regulations, and none of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading. If the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and each of
the Prospectuses will conform in all respects to the requirements of
the Act and the Rules and Regulations, none of such documents will
include any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration Statement
or either of the Prospectuses based upon written information furnished
to the Company by any Underwriter through the Representatives or by
any Manager through CSFBL specifically for use therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b).
(iii) Each of the Company and its corporate subsidiaries
has been duly incorporated, is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation and
has the corporate power and authority to carry on its business as it
is currently being conducted and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(iv) Each partnership subsidiary of the Company has been
duly formed, is validly existing as a partnership and, with respect to
each limited partnership subsidiary of the Company, is in good
standing under the laws of the jurisdiction of its formation and has
the requisite power and authority to carry on its business as it is
currently being conducted and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a
foreign partnership authorized to do business in each jurisdiction in
which the nature of its business or the ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(v) All the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's subsidiaries have been
duly authorized and validly issued and are fully paid and
nonassessable, and are owned by the Company or one of the Company's
wholly owned subsidiaries, free and clear of any security interest,
claim, lien, encumbrance or adverse interest of any nature. Except as
disclosed in the Prospectuses and except for the shares of capital
stock of the Company's subsidiaries, neither the Company nor any
corporate or partnership subsidiary owns or holds, directly or
indirectly, a material number of shares of capital stock or any other
securities of any corporation or has any material equity interest in
any firm, partnership, association or other entity.
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(vi) The Company's authorized equity capitalization is as
set forth in the Prospectuses; the capital stock of the Company
conforms to the description thereof contained in the Prospectuses; the
outstanding Securities (including the offered Securities being sold
hereunder by the Selling Stockholders) have been duly and validly
authorized and issued and are fully paid and nonassessable; the
offered Securities being sold hereunder by the Company have been duly
and validly authorized, and, when issued and delivered to and paid for
by the Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the Securities being sold hereunder by the Company and
the Selling Stockholders are duly authorized for listing, subject to
official notice of issuance on the Nasdaq National Market; the
certificates for the Securities are in valid and sufficient form; and
the holders of outstanding shares of capital stock of the Company are
not entitled to preemptive or other rights to subscribe for the
Securities.
(vii) This Agreement and the Underwriting Agreement have
been duly authorized, executed and delivered by the Company.
(viii) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws (or certificate of
limited partnership or partnership agreement in the case of a
partnership subsidiary) or is in default in the performance of any
obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any other agreement,
indenture or instrument material to the conduct of the business of the
Company and its subsidiaries, taken as a whole, to which the Company
or any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective properties are bound or is in
violation of any existing material law, order, rule or regulation of
any court, governmental agency or body or any arbitrator, domestic or
foreign, having jurisdiction over any of them or any of their
properties.
(ix) The execution, delivery and performance of this
Agreement, compliance by the Company with all the provisions hereof
and the consummation of the transactions contemplated hereby will not
require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental
body (except as such may be required under the securities or blue sky
laws of the various states) and will not conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the
charter or by-laws of the Company or the charter or by-laws (or
certificate of limited partnership or partnership agreement in the
case of a partnership subsidiary) of any of its subsidiaries or any
agreement, indenture or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective properties are bound, or violate or
conflict with any law, order, rule, regulation, judgment, ruling or
decree applicable to the Company, any of its subsidiaries or their
respective property.
(x) Except as disclosed in the Prospectuses, there are no
material arbitration or legal or governmental actions, suits or
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any of their respective property is the subject,
and, to the best of the Company's knowledge, no such arbitrations,
actions, suits or proceedings are threatened or contemplated. No
contract or document of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement is not so described or filed as
required.
(xi) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation
(including, without limitation, laws and regulations related to notice
requirements) relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws"), nor any federal or state law
relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws,
nor any provisions of the Employee Retirement Income Security Act of
1974, as amended, or the rules and regulations promulgated thereunder,
which in each case might result in any material adverse change in the
business, prospects, financial condition or results of operation of
the Company and its subsidiaries, taken as a whole. With respect to
Environmental Laws, the Company has reasonably concluded that costs
and liabilities
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associated with any violations of such laws by the Company or its
subsidiaries would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(xii) Each of the Company and its subsidiaries has such
permits, certificates, licenses, franchises and authorizations of
governmental or regulatory authorities ("permits"), including, without
limitation, under any applicable Environmental Laws, as are necessary
to own, lease and operate its respective properties and to conduct its
business, except such permits the absence of which would not, singly
or in the aggregate, have a material adverse effect on the Company and
its subsidiaries taken as a whole; the Company and each of its
subsidiaries has fulfilled and performed all of its material
obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of
the rights of the holder of any such permit; and, except as described
in the Prospectuses, such permits contain no restrictions that are
materially burdensome to the Company or any of its subsidiaries.
(xiii) Except as otherwise set forth in the Prospectuses or
such as are not material to the business, prospects, financial
condition or results of operation of the Company and its subsidiaries,
taken as a whole, the Company and each of its subsidiaries have good
and valid title (subject to the liens on such assets described in
Appendix 1(a)(xiv) hereto) to all property and assets described in the
Registration Statement as being owned by it, free and clear of all
liens, encumbrances, claims, security interests, subleases and
defects. All leases to which the Company or any of its subsidiaries
is a party are valid, subsisting and enforceable, and no default has
occurred or is continuing thereunder that might result in any material
adverse change in the business, prospects, financial condition or
results of operation of the Company and its subsidiaries, taken as a
whole; and the Company and its subsidiaries enjoy peaceful and
undisturbed possession under all such leases to which any of them is a
party as lessee with such exceptions as do not materially interfere
with the use made and proposed to be made by the Company or such
subsidiary.
(xiv) Each of the Company and its subsidiaries maintain
reasonably adequate insurance in accordance with industry practice;
and all of such insurance is outstanding and duly in force on the
Execution Date and will be outstanding and duly in force on the
Closing Date.
(xv) Xxxxxx Xxxxxxxx LLP are independent public
accountants with respect to the Company as required by the Act and the
Securities and Exchange Act of 1934 (as amended, the "Exchange Act")
and the rules and regulations thereunder.
(xvi) The financial statements, together with related
schedules and notes forming part of the Registration Statement and the
Prospectuses (and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations and changes
in financial position of the Company and its subsidiaries on the basis
stated in the Registration Statement at the respective dates or for
the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectuses (and any amendment or
supplement thereto) is, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements and
the books and records of the Company.
(xvii) There are no persons with registration or other
similar rights to have any securities registered pursuant to the
Registration Statement or the Act or to participate in the offering of
Securities contemplated by this Agreement, except such as have been
waived in writing or complied with by the inclusion of such securities
in the Registration Statement.
(xviii) The Company and its subsidiaries have complied with
all provisions of Section 1 of Laws of Florida, Chapter 92-198.
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(xix) None of the Company or its subsidiaries is (A) an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), or analogous foreign laws and
regulations, or (B) a "holding company" or a "subsidiary company" or
an "affiliate" of a holding company within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or analogous foreign
laws and regulations.
(xx) There are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale
or liens related to or entitling any person to purchase or otherwise
to acquire any shares of the capital stock of, or other ownership
interest in, the Company or any subsidiary thereof except as otherwise
disclosed in the Registration Statement or as disclosed on Appendix
2(a)(xxi) hereto.
(xxi) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be
disclosed therein by Item 404 of Regulation S-K of the Commission.
(xxii) Each of the Company and its subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in 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.
(xxiii) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any of its
subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(xxiv) Subsequent to the respective dates as of which
information is given in the Prospectuses and up to the date and time
this Agreement is executed and delivered by the parties hereto (the
"Execution Time"), except as set forth in the Prospectuses, (i) none
of the Company or any of its subsidiaries has incurred any liabilities
or obligations, direct or contingent, which are material to the
Company and its subsidiaries taken as a whole, nor entered into any
material transaction whether or not in the ordinary course of
business, (ii) there has been no dividend or distribution of any kind
declared, paid or made by the Company on its shares of capital stock,
and (iii) there has not been, singly or in the aggregate, any material
adverse change or any development which may reasonably be expected to
involve a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(xxv) The Company is deemed a citizen of the United States
as determined pursuant to Section 2 of the Shipping Act, 1916, as
amended, and the beneficial ownership of the Company's capital stock
by foreign persons or entities as of the date of the Prospectuses does
not violate the Shipping Act, 1916 or the Company's certificate of
incorporation.
(xxvi) Except as disclosed in the Prospectuses, there are no
contracts, agreements or understandings between the Company, any
Selling Stockholder and any person that would give rise to a valid
claim against the Company or any Manager for a brokerage commission,
finders fee or other like payments in connection with this
offering.
(b) Each Selling Stockholder represents and warrants to, and agrees with,
each Manager that:
(i) Such Selling Stockholder is the lawful owner of the
Securities to be sold by such Selling Stockholder hereunder, and upon
sale and delivery of, and payment for, such Securities, as provided
herein,
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such Selling Stockholder will convey good and marketable title to such
Securities, free and clear of all liens, encumbrances, equities and
claims whatsoever.
(ii) Such Selling Stockholder has no reason to believe
that the representations and warranties of the Company contained in
this Section 2 are not true and correct; and the sale of Securities by
such Selling Stockholder pursuant hereto is not prompted by any
information concerning the Company or any of its subsidiaries which is
not, to such Selling Stockholder's knowledge, publicly available
information.
(iii) Such Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the offered Securities.
(iv) Upon delivery of payment for the Securities to be
sold by such Selling Stockholder and after delivery of such securities
by such Selling Stockholder, in accordance with this Agreement, good
and clear title to such Securities will pass to the Underwriters, free
of all restrictions on transfers, liens, encumbrances, securities
interests and claims whatsoever.
(v) Such Selling Stockholder has, and on the Closing Date
will have, full legal rights, power and authority to enter into (a)
this Agreement, (b) the Custody Agreement between the Selling
Stockholder and the Company, as Custodian (the "Custody Agreement"),
and (c) the Selling Stockholder's Irrevocable Power of Attorney
appointing Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxx as
attorneys-in-fact for such Selling Stockholder (the "Power of
Attorney"), and to sell, assign, transfer and deliver the Securities
to be sold by such Selling Stockholder in the manner provided herein
and therein, and this Agreement, the Custody Agreement and the Power
of Attorney have been duly authorized, executed and delivered by such
Selling Stockholder and each of this Agreement, the Custody Agreement
and the Power of Attorney is a valid and binding agreement of such
Selling Stockholder enforceable in accordance with its terms, except
as rights to indemnity and contribution hereunder may be limited by
applicable law.
(vi) The execution, delivery and performance of this
Agreement, the Custody Agreement and the Power of Attorney by such
Selling Stockholder, compliance by such Selling Stockholder with all
the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not require any
consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body
(except as such may be required under the Act, state securities laws
or blue sky laws) and will not conflict with or constitute a breach of
any of the terms or provisions of, or a default under, organizational
documents of such Selling Stockholder, if not an individual, or any
agreement, indenture or other instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder or
property of such Selling Stockholder is bound, or violate or conflict
with any laws, administrative regulation or ruling or court decree
applicable to such Selling Stockholder or property of such Selling
Stockholder.
(vii) The information contained in the Prospectuses
specifically relating to such Selling Stockholder does not, and will
not on the Closing Date (and any Option Closing Date, if applicable),
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of circumstances under which they were
made, not misleading.
(viii) Except as disclosed in the Prospectuses, there are
no contracts, agreements or understandings between the Company, any
Selling Stockholder and any person that would give rise to a valid
claim against the Company or any Manager for a brokerage commission,
finders fee or other like payments in connection with this offering.
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3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company and each
Selling Stockholder agrees to sell to the Managers, and the Managers agree,
severally and not jointly, to purchase from the Company, at a purchase price of
U.S.$ per share the respective numbers of International Firm
Securities set forth opposite the names of the Managers in Schedule A hereto.
The Company and each Selling Stockholder will deliver the
International Firm Securities to CSFBL for the accounts of the Managers, at the
office of , against payment of the purchase
price in immediately available funds drawn to the order of
at the office of , at A.M., New York time, on
, or at such other time not later than seven full business days thereafter as
CSFBL and the Company determine, (such time being herein referred to as the
"First Closing Date"). For purposes of Rule 15c6-1 under the Exchange Act, the
First Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of securities
for all the Offered Securities sold pursuant to the U.S. Offering and the
International Offering. The certificates for the International Firm Securities
so to be delivered will be in definitive form, in such denominations and
registered in such names as CSFBL requests and will be made available for
checking and packaging at the above office of , at least
24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectuses,
the Managers may purchase all or less than all of the U.S. Optional Securities
at the purchase price per Security to be paid for the International Firm
Securities. The International Optional Securities to be purchased by the
Underwriters on any Optional Closing Date shall be in the same proportion to
all the Optional Securities to be purchased by the Managers and the Managers on
such Optional Closing Date as the International Firm Securities bear to all the
Firm Securities. The Company and each Selling Stockholder agree to sell to the
Underwriters such International Optional Securities and the Managers agree,
severally and not jointly, to purchase such International Optional Securities.
Such International Optional Securities shall be purchased for the account of
each Manager in the same proportion as the number of shares of International
Firm Securities set forth opposite such Manager's name bears to the total
number of shares of International Firm Securities (subject to adjustment by
CSFBC to eliminate fractions) and may be purchased by the Managers only for the
purpose of covering over-allotments made in connection with the sale of the
Firm Securities. No Optional Securities shall be sold or delivered unless the
U.S. Firm Securities and the International Firm Securities previously have
been, or simultaneously are, sold and delivered. The right to purchase the
Optional Securities or any portion thereof may be exercised from time to time
and to the extent not previously exercised may be surrendered and terminated at
any time upon notice by CSFBC on behalf of the U.S. Underwriters and the
Managers to the Company. It is understood that CSFBC is authorized to make
payment for and accept delivery of such Optional Securities on behalf of the
U.S. Underwriters and Managers pursuant to the terms of CSFBC's instructions to
the Company.
Each time for the delivery of and payment for the International
Optional Securities, being herein referred to as an "Optional Closing Date",
which may be the First Closing Date (the First Closing Date and each Optional
Closing Date, if any, being sometimes referred to as a "Closing Date"), shall
be determined by CSFBC but shall be not later than five full business days
after written notice of election to purchase Optional Securities is given. The
Company and each Selling Stockholder will deliver the International Optional
Securities being purchased on each Optional Closing Date to CSFBL for the
accounts of the several Managers, at the office of ,
against payment of the purchase price in immediately available funds drawn to
the order of , at the above office of . The
certificates for the International Optional Securities will be in
definitive form, in such denominations and registered in such names as CSFBL
requests upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the above office of ,
at a reasonable time in advance of such Optional Closing Date.
The Company will pay to the Managers as aggregate compensation for
their commitments hereunder and for their services in connection with the
purchase of the International Securities and the management of the offering
thereof, if the sale and delivery of the International Securities to the
Managers provided herein is consummated, an amount equal to U.S. $ per
International Security purchased, which may be divided among the Managers in
such proportions as they may determine. Such payment will be made on the First
Closing Date in the case of the International Firm
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Securities and on each Optional Closing Date in the case of the International
Optional Securities sold to the Manager on such Closing Date, in each case by
way of deduction by the Managers of said amount from the purchase price for the
International Securities referred to above.
4. Offering by Managers. It is understood that the several
Managers propose to offer the International Securities for sale to the public
as set forth in the International Prospectus.
In connection with the distribution of the International Securities,
the Managers, through a stabilizing manager, may over-allot or effect
transactions on any exchange, in any over-the-counter market or otherwise which
stabilize or maintain the market prices of the International Securities at
levels other than those which might otherwise prevail, but in such event and in
relation thereto, the Managers will act for themselves and not as agents of the
Company or of the Selling Stockholders, and any loss resulting from
over-allotment and stabilization will be borne, and any profit arising
therefrom will be beneficially retained, by the Managers. Such stabilizing, if
commenced, may be discontinued at any time.
5. Certain Agreements of the Company and the Selling
Stockholders. The Company agrees with the several Managers and the Selling
Stockholders that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereof, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement to the
Prospectuses unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment
or supplement to which you object. Subject to the foregoing sentence,
if the Registration Statement has become or becomes effective pursuant
to Rule 430A, or filing of the Prospectuses is otherwise required
under Rule 424(b), the Company will cause the Prospectuses, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly
advise CSFBL (A) when the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, shall have become
effective, (B) when the Prospectuses, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b), (C) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have
been filed or become effective, (D) of any request by the Commission
for any amendment of the Registration Statement or supplement to the
Prospectuses or for any additional information, (E) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (F) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (x) prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 5, an amendment or supplement which will correct
such statement or omission or effect such compliance and (y) supply
any supplemented Prospectuses to you in such quantities as you may
reasonably request. Neither CSFBL's consent nor the Manager's
delivery of such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 6 hereof.
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(iii) As soon as practicable, the Company will make
generally available to its security holders and to CSFBL and will file
with the Commission an earnings statement or statements of the Company
and its subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(iv) The Company will furnish to the Managers copies of
the Registration Statement of which will be signed and will include
all exhibits), each preliminary prospectus relating to the
International Securities, and, until completion of the distribution of
the International Securities as determined by CSFBL, the International
Prospectus and all amendments and supplements to such documents, in
each case in such quantities as CSFBL requests. The International
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other such documents shall be so
furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Managers all such documents.
(v) No action has been or, prior to the completion of the
distribution of the Offered Securities, will be taken by the Company
in any jurisdiction outside the United States and Canada that would
permit a public offering of the Offered Securities, or possession or
distribution of the International Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus issued in
connection with the offering of the Offered Securities, or any other
offering material, in any country or jurisdiction where action for
that purpose is required.
(vi) The Company and the Selling Stockholders will not,
for a period of 180 days and 90 days, respectively, following the
Execution Time, without the prior written consent of CSFBC, offer,
sell or contract to sell, or otherwise dispose of, directly
or indirectly, or announce the offering of, any Securities
or any securities convertible into, or exchangeable for, Securities
other than the sale of Securities to the Underwriters pursuant
to this Agreement; provided, however, that the Company may
issue and sell Securities pursuant to any employee stock option plan,
stock ownership plan or dividend reinvestment plan of the Company in
effect at the Execution Time and the Company may issue Securities upon
the conversion of securities or the exercise of warrants or options
outstanding at the Execution Time; and provided further, that the
Company may issue Securities, pursuant to the Company's agreement to
acquire the drillships Deepsea Ice and Deepsea Duchess, the aggregate
market value of which shall not exceed $15 million based on the average
closing price of the Securities on the Nasdaq Stock Market for the five
trading days prior to the date of the closing of such acquisition.
(vii) Each Selling Stockholder will deliver to CSFBC,
attention: Transactions Advisory Group on or prior to the First
Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified
by Treasury Department regulations in lieu thereof).
6. Conditions of the Obligations of the Managers. The
obligations of the several Managers to purchase and pay for the International
Firm Securities on the First Closing Date and the International Optional
Securities to be purchased on each Optional Closing Date will be subject to the
accuracy of the representations and warranties on the part of the Company and
the Selling Stockholders herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company and the Selling Stockholders of its obligations hereunder and to the
following additional conditions precedent:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless CSFBL agrees in writing to a later time, the
Registration Statement will become effective not later than (i) 6:00 PM New
York City time on the date of determination of the public offering price, if
such determination occurred at or prior to 3:00 PM New York City time on such
date or (ii) 12:00 Noon on the business day following the day on which the
public offering price was determined, if such determination occurred after 3:00
PM New York City time on such date; if filing of the Prospectus, or any
supplement thereto is required pursuant to Rule 424(b), the Prospectuses and
any such supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened; if filing of an additional
registration statement or a post-effective amendment to the Registration
Statement shall be made pursuant to Rule 462(b) under the Act, such filing
shall occur in the manner provided in Rule 462.
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(b) The Managers shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to such
Effective Time), of in the agreed form.
(c) The Company shall have furnished to the Managers the opinion
of Xxxxxx & Xxxxx, counsel for the Company, dated the Closing Date, to the
effect that;
(i) The Company and each of its subsidiaries has been
duly incorporated (or formed in the case of a partnership subsidiary),
is validly existing as a corporation or partnership, as the case may
be, in good standing under the laws of its jurisdiction of
incorporation or formation and has the corporate or partnership power
and authority required to carry on its business as described in the
Prospectuses and to own, lease and operate its properties, and is duly
qualified to do business as a foreign corporation or partnership, as
the case may be, and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business;
(ii) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have
been duly and validly authorized and issued and are fully paid and
non-assessable and are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any
other security interest, claim, lien or encumbrance;
(iii) The Company's authorized equity capitalization is as
set forth in the Prospectuses; the capital stock of the Company
conforms to the description thereof contained in the Prospectuses; the
outstanding shares of Securities (including the Securities to be sold
by each of the Selling Stockholders) have been duly authorized and
validly issued and are fully paid, non-assessable and not subject to
any preemptive or similar rights; the Securities to be issued and sold
by the Company hereunder have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor as provided
by this Agreement, will be fully paid and non-assessable, and the
issuance of such Securities is not subject to any preemptive or
similar rights; and the certificates for the Securities are in valid
and sufficient form;
(iv) This Agreement and the Underwriting Agreement have
been duly authorized, executed and delivered by the Company and each
of the Selling Stockholders and is a valid and binding agreement of
the Company and each of the Selling Stockholders, enforceable in
accordance with its terms (except as rights to indemnity and
contribution hereunder may be limited by applicable law);
(v) The statements under the captions "Risk Factors -
Environmental Matters," "Risk Factors - Restrictions on Foreign
Ownership," and "Selling Stockholders" in the Prospectuses and in Item
15 of Part II of the Registration Statement, insofar as such
statements constitute a summary of legal matters, regulations,
documents or proceedings referred to therein, provide a fair summary
of such legal matters, regulations, documents and proceedings;
(vi) The execution, delivery and performance of this
Agreement by the Company and each Selling Stockholder, compliance by
the Company and each Selling Stockholder with the provisions hereof
and the consummation of the transactions contemplated hereby do not
require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental
body (except as such may be required under the Act or other securities
or blue sky laws) and do not constitute a breach of any of the terms
or provisions of, or a default under, the charter or by-laws or
certificate or agreement of limited partnership, as the case may be,
of the Company or any of its subsidiaries or any of the organizational
documents of any of the Selling Stockholders or any agreement,
indenture or other instrument known to us to which the Company or any
of its subsidiaries or any of the Selling Stockholders is a party or
by which the Company or
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any of its subsidiaries or any of the Selling Stockholders or their
respective properties are bound, or violate or conflict with any laws,
administrative regulations or rulings or court decrees known to us to
be applicable to the Company or any of its subsidiaries or any of the
Selling Stockholders or any of their respective properties;
(vii) Such counsel does not know of any legal or
governmental action, suit or proceeding pending or threatened before
any court or governmental agency, authority or body or any arbitrator
to which the Company or any of its subsidiaries is a party or to which
any of their respective property is subject which is required to be
described in the Registration Statement or the Prospectuses and is not
so described, or of any contract or other document which is required
to be described in the Registration Statement or the Prospectuses or
to be filed as an exhibit to the Registration Statement and is not so
described or filed as required;
(viii) None of the Company or its subsidiaries is (A) an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act") or (B) a "holding company" or a
"subsidiary company" or an "affiliate" of a holding company within the
meaning of the Public Utility Holding Company Act of 1935, as amended;
(ix) (1) the Registration Statement and the Prospectuses
and any supplement or amendment thereto (except for financial
statements as to which no opinion need be expressed) comply as to form
in all material respects with the Act and the Exchange Act and the
respective rules thereunder, and (2) nothing has come to the attention
of such counsel that causes such counsel to believe that (except for
financial statements, as aforesaid) the Registration Statement and the
prospectuses included therein at the time the Registration Statement
became effective contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectuses as of the Closing Date, as amended or supplemented, if
applicable (except for financial statements, as aforesaid) contains
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;
(x) A Custody Agreement and a Power of Attorney have each
been duly authorized, executed and delivered by each Selling
Stockholder and are each a valid and binding agreement of each Selling
Stockholder enforceable in accordance with its terms;
(xi) Each of the Selling Stockholders has received any
approval required by law (other than any approval imposed by the
applicable state securities and blue sky laws) to sell, assign,
transfer and deliver the Securities to be sold by it in the manner
provided in this Agreement, the Custody Agreement and the Power of
Attorney, and each of the Selling Stockholders that is a corporation
or partnership has full corporate or partnership power and authority,
as the case may be, to so sell, assign, transfer and deliver the
Securities;
(xii) To such counsel's knowledge, there are no persons
with registration or other similar rights to have any securities
registered pursuant to the Registration Statement or under the Act or
to participate in the offering of the Securities contemplated by this
Agreement, except such as have been waived or complied with by
inclusion of such persons as Selling Stockholders in the Registration
Statement;
(xiii) Each of the Selling Stockholders has good and clear
title to the certificates for the Securities to be sold by it and
assuming that the Underwriters acquired their interest in the
Securities in good faith and without notice of any adverse claim, and
upon delivery thereof, pursuant hereto and payment therefor, good and
clear title will pass to the Underwriters, severally, free of all
restrictions on transfers, liens, encumbrances, security interests and
claims whatsoever;
(xiv) The Company is deemed a citizen of the United States
as determined pursuant to Section 2 of the Shipping Act, 1916, as
amended, and the beneficial ownership of the Company's capital stock
by foreign
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persons or entities as of the date of the Prospectuses does not
violate the Shipping Act, 1916 or the Company's certificate of
incorporation.
In giving such opinion with respect to matters covered by clause (ix), such
counsel may state that their belief is based upon their participation in the
preparation of the Registration Statement and the Prospectuses and review and
discussion of the contents thereof, but is without independent check or
verification. In rendering such opinion, such counsel may rely as to matters
of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and the Selling Stockholders and public officials.
References to the Registration Statement and Prospectuses in this paragraph (b)
include any amendments or supplements thereto at the Closing Date.
(d) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company or its
subsidiaries which, in the judgment of a majority in interest of the Managers
including the U.S. Underwriters, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New York Stock Exchange,
or any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange or in
the over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Managers
including the U.S. Underwriters, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Offered Securities.
(e) The Managers shall have received from ,
counsel to certain of the Selling Stockholders, an opinion with respect to
such Stockholders covering the matters described in paragraphs (c)(vi), (x),
(xi) and (xiii) above.
(f) The Managers shall have received from Xxxxxxx & Xxxxx L.L.P.,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectuses (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the Company
and each Selling Stockholder shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
(g) The Company shall have furnished to the Managers a certificate
of the Company, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that such officers have carefully examined the Registration
Statement, the Prospectuses, any supplements to the Prospectuses and this
Agreement and that:
(i) The representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
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(iii) Since the date of the most recent financial
statements included in the Prospectuses, there has been no material
adverse change in the condition (financial or other), earnings,
business, properties or prospects of the Company and its subsidiaries,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectuses.
(h) Each Selling Stockholder shall have furnished to the Managers
a certificate, signed by or on behalf of such Selling Stockholder dated the
Closing Date, to the effect that the signer of such certificate has carefully
examined the Registration Statement, the Prospectuses, any supplement to the
Prospectuses and this Agreement and that the representations and warranties of
such Selling Stockholder in this Agreement are true and correct in all material
respects on and as of the Closing Date to the same effect as if made on the
Closing Date.
(i) At the Execution Time, the Company shall have furnished to the
Managers a letter substantially in the form of Exhibit A hereto from S-C Rig
Investments, L.P., its partners and affiliates, addressed to the Managers, in
which each such person agrees not to offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce an offering of, any
Securities beneficially owned by such person or any securities convertible into,
or exchangeable for, Securities for a period of 90 days following the Execution
Time without the prior written consent of CSFBL.
(j) On such Closing Date, the U.S. Underwriters shall have
purchased the U.S. Firm Securities or the U.S. Optional Securities, as the
case may be, pursuant to the Underwriting Agreement.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Manager against any losses, claims, damages or
liabilities, joint or several, to which such Manager may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, either of the Prospectuses, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Manager for any legal or other expenses
reasonably incurred by such Managers in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Managers
through CSFBL specifically for use therein, it being understood and agreed
that the only information furnished by any Manager consists of the information
described as such in subsection (c) below.
(b) Each Selling Stockholder agrees to indemnify and hold harmless
each Manager and each person, if any, who controls any Manager within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments caused
by any untrue statement or alleged untrue statement of a material fact
contained or incorporated in the Registration Statement or the Prospectuses
(as amended or supplemented) or any preliminary prospectus or caused by
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, but only with reference to information specifically relating
to each Selling Stockholder. Notwithstanding the foregoing, the aggregate
liability of each Selling Stockholder pursuant to the provisions of this
paragraph shall be limited to an amount equal to the aggregate purchase price
received by each Selling Stockholder from the sale of each Selling
Stockholder's Securities and any Optional Securities sold by each Selling
Stockholder hereunder.
(c) Each Manager will severally and not jointly indemnify and hold
harmless the Company and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company and each Selling Stockholder may
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become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, either of the Prospectuses, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of (i) the following
information in the U.S. Prospectus furnished on behalf of each Underwriter: the
last paragraph at the bottom of the cover page concerning the terms of the
offering by the Underwriters, the legend concerning over-allotments,
stabilizing and passive market making on the inside front cover page, the
concession and reallowance figures appearing in the fifth paragraph under the
caption "Underwriting" and the information contained in the twelfth paragraph
under the caption "Underwriting" and (ii) the following information in the U.S.
Prospectus furnished on behalf of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Salomon Brothers Inc and Xxxxxxx & Company International
concerning the receipt of fees in prior offerings in the eleventh paragraph
under the caption "Underwriting."
(d) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a), (b) or (c) above, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a), (b) or (c) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a), (b) or
(c) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Managers on the other from the offering of the U.S. Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Stockholders on the one hand and the Managers on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Managers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the International Securities
(before deducting expenses) received by the Company and the Selling
Stockholders bear to the total underwriting discounts and commissions received
by the Managers. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholders or the Managers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
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amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Manager 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 Manager has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Managers' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders
under this Section shall be in addition to any liability which the Company and
the Selling Stockholders may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company who
has signed a Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
8. Default of Underwriters. If any Manager or Managers default
in their obligations to purchase International Securities hereunder on either
the First or any Optional Closing Date and the aggregate number of shares of
International Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares
of International Securities that the Underwriters are obligated to purchase on
such Closing Date, CSFBL may make arrangements satisfactory to the Company and
the Selling Stockholders for the purchase of such International Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by such Closing Date the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder,
to purchase the International Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Manager or
Underwriters so default and the aggregate number of shares of International
Securities with respect to which such default or defaults occur exceeds 10% of
the aggregate amount of International Securities that the Underwriters are
obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC and the Company for the purchase of such International Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 9 (provided that if such default
occurs with respect to International Optional Securities after the First
Closing Date, this Agreement will not terminate as to the International Firm
Securities or any International Optional Securities purchased prior to such
termination). As used in this Agreement, the term "Manager" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Manager from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Stockholders, of the Company or its officers and of
the several Managers set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and
payment for the International Securities. If this Agreement is terminated
pursuant to Section 8 or if for any reason the purchase of the International
Securities by the Underwriters is not consummated, the Company and the Selling
Stockholders shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 5 and the respective obligations of the Company, the
Selling Stockholders and the Managers pursuant to Section 7 shall remain in
effect and if any International Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the International Securities
by the Managers is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (iii), (iv), or (v) of Section 6(h), the Company
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and the Selling Stockholders will reimburse the Managers for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the International Securities.
10. Notices. All communications hereunder will be in writing and,
if sent to the Managers, will be mailed, delivered or telegraphed and confirmed
to CSFBL at Xxx Xxxxx Xxxxxx, Xxxxxx X00 0XX England, Attention: Company
Secretary, or, if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at 0000 Xxxx Xxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000,
Attention: Xxxxxx X. Xxxxxxx, or, if sent to the Selling Stockholders or any of
them, will be mailed, delivered or telegraphed and confirmed c/o the Company,
0000 Xxxx Xxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxxx X.
Xxxxxxx; provided, however, that any notice to a Manager pursuant to Section 7
will be mailed, delivered or telegraphed and confirmed to such Manager.
11. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective personal
representatives and successors and the officers and directors and controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder.
12. Representation of Managers and Selling Stockholders. CSFBL
will act for the several Managers in connection with the transactions
contemplated by this Agreement, and any action under this Agreement taken by
CSFBL will be binding upon all the Managers. Xxxxxx X. Xxxxxxx and Xxxxxx X.
Xxxxxx will act for the Selling Stockholders pursuant to the Powers of Attorney
granted by the Selling Stockholders in connection with such transactions, and
any action under or in respect of this Agreement taken by Messrs. Xxxxxxx and
Xxxxxx will be binding upon all the Selling Stockholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of
the counterparts hereof, whereupon it will become a binding agreement among the
Company, the Selling Stockholders and the several Underwriters in accordance
with its terms.
Very truly yours,
FALCON DRILLING COMPANY, INC.
By:
-----------------------------------------
Xxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
THE SELLING STOCKHOLDERS
NAMED IN SCHEDULE B HERETO
By:
----------------------------------------
Attorney-in-Fact
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
CS FIRST BOSTON LIMITED
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Salomon Brothers Inc
Xxxxxxxx Xxxxxxxx & Co.
Xxxxxxx & Company International
Each by its duly authorized attorney-in-fact:
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SCHEDULE A
Number of
Manager International Firm Securities
------- -----------------------------
CS First Boston Limited . . . . . . . . . . . . . . . . . . . . . . . . . . .
-------------------
Total . . . . . . . . . . . . . . . . . . . . . . .
===================
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SCHEDULE B
NUMBER OF
INTERNATIONAL FIRM
SECURITIES
SELLING STOCKHOLDER TO BE SOLD
------------------- ----------
-----------------
Total . . . . . . . . . . . . . . . . . . . . . . . . .
=================
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SCHEDULE C
SELLER MAXIMUM NUMBER OF
------ OPTIONAL SHARES
TO BE SOLD
----------
Falcon Drilling Company, Inc. . . . . . . . . . . . . . . . . . . . . .
-------------------
Total . . . . . . . . . . . . . . . . . . . . . . . . .
==================
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