Pride Petroleum Services, Inc.
___% Convertible Subordinated Debentures due 2006
UNDERWRITING AGREEMENT
January ___, 1996
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX X. XXXXX & CO. INC.
XXXXXX XXXXXX & COMPANY, INC.
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Pride Petroleum Services, Inc., a Louisiana corporation (the
"COMPANY"), confirms its agreement with the several underwriters listed in
Schedule I hereto (the "UNDERWRITERS") as follows.
1. THE DEBENTURES. Subject to the terms and conditions herein
set forth, the Company proposes to issue and sell to the Underwriters
$60,000,000 aggregate principal amount of its ___% Convertible Subordinated
Debentures due 2006 (the "FIRM DEBENTURES"). The Company also proposes to issue
and sell to the several Underwriters not more than $9,000,000 aggregate
principal amount of additional ___% Convertible Subordinated Debentures due 2006
(the "ADDITIONAL DEBENTURES" and, together with the Firm Debentures, the
"DEBENTURES"), if requested by the Underwriters as provided in Section 3 hereof.
The Debentures are to be issued under an Indenture to be dated as of
____________, 1996, by and between the Company and Marine Midland Bank, as
Trustee (the "INDENTURE"), and will be convertible, at the option of the
holders, into newly-issued shares of the Company's Common Stock, no par value
(the "COMMON STOCK"). The Debentures and the shares of Common Stock into which
the Debentures are convertible are herein collectively called the "SECURITIES."
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2. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 (No. 333-00027),
including a prospectus, subject to completion, related to the Securities. The
registration statement, as amended by pre-effective or post-effective amendment
pursuant to the Act, including all documents incorporated or deemed to be
incorporated by reference therein, financial statements, exhibits (other than
the Form T-1), the information (if any) contained in a prospectus that is deemed
to be a part of such registration statement at the time of its effectiveness
pursuant to Rule 430A under the Act, is hereinafter referred to as the
"REGISTRATION STATEMENT," and the prospectus in the form first used to confirm
sales of the Debentures, including all documents incorporated or deemed to be
incorporated by reference therein, is hereinafter referred to as the
"PROSPECTUS."
3. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to the
terms and conditions hereof, the Company agrees to issue and sell to the
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, Firm Debentures in the respective principal amount
set forth opposite the name of such Underwriter in Schedule I hereto, plus such
amount as they individually may become obligated to purchase pursuant to Section
11 hereof, at ___% of the principal amount thereof, plus accrued interest, if
any, from the date of first issuance of any Debentures (the "PURCHASE PRICE").
On the basis of the representations and warranties contained
in this Agreement, and subject to the terms and conditions hereof, the Company
agrees to issue and sell to the Underwriters, and the Underwriters shall have a
one-time right to purchase from the Company, up to all of the Additional
Debentures at the Purchase Price. Additional Debentures may be purchased as
provided in Section 5 hereof solely for the purpose of covering over-allotments
made in connection with the offering of the Firm Debentures. If any Additional
Debentures are to be purchased, each Underwriter, severally and not jointly,
agrees to purchase the principal amount of Additional Debentures (subject to
such adjustments to eliminate partial Debentures as Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation ("DLJ") may determine) that bears the same proportion to
the total principal amount of
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Additional Debentures to be purchased as the principal amount of Firm Debentures
set forth opposite the name of such Underwriter in Schedule I hereto bears to
the total principal amount of Firm Debentures.
The Company hereby agrees, and, concurrently with the
execution of this Agreement, shall deliver a letter executed by each of the
current directors and executive officers of the Company pursuant to which such
directors and executive officers agree that, for a period of 90 days after the
date of the Prospectus (or 30 days, in the case of Xxxxxx X. Xxxx), without the
prior written consent of DLJ, neither the Company, nor such directors and
executive officers, will, directly or indirectly, offer, sell, contract to sell,
grant any option to purchase, or otherwise dispose of any shares of Common
Stock, or any securities convertible into or exercisable or exchangeable for, or
warrants, options or rights to purchase or acquire, Common Stock or enter into
any agreement to do any of the foregoing, except pursuant to this Agreement.
Notwithstanding the foregoing, during such period (x) the Company may grant
stock options pursuant to the Company's currently existing stock option plans,
and (y) the directors, officers and other stockholders subject to such
agreements may transfer or otherwise dispose of shares of Common Stock pursuant
to BONA FIDE gifts, provided that, prior to any such transfers or dispositions
referred to in this clause (y), the transferee delivers to DLJ, on behalf of the
Underwriters, a written agreement pursuant to which such transferee agrees to be
bound by the terms of such agreement as if a signatory thereto.
4. TERMS OF THE PUBLIC OFFERING. The Company is advised by you
that the Underwriters propose (i) to make a public offering of their respective
portions of the Securities as soon after the effective date of the Registration
Statement as in your judgment is advisable and (ii) initially to offer the
Securities upon the terms set forth in the Prospectus.
5. DELIVERY AND PAYMENT. Delivery to the Underwriters of and
payment for the Firm Debentures shall be made at 10:00 A.M., New York City time,
on the third business day (or fourth business day if permitted by Rule 15c6-1(c)
of the Exchange Act (as defined below)) (such time and date being referred to as
the "CLOSING DATE") following the initial public offering of the Firm Debentures
as advised by you to the Company, at such place as you shall designate. The
Closing Date and the location of delivery of and the form of payment for the
Firm Debentures may be varied by agreement between you and the Company.
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Delivery to the Underwriters of and payment for any Additional
Debentures to be purchased by the Underwriters shall be made at such place as
DLJ shall designate, at 10:00 A.M., New York City time, on such date (the
"OPTION CLOSING DATE"), which may be the same as the Closing Date but shall in
no event be earlier than the Closing Date, as shall be specified in a written
notice from DLJ to the Company of the Underwriters' determination to purchase a
principal amount, specified in said notice, of Additional Debentures. Such
notice may be given at any time within 30 days after the date of this Agreement,
provided that the Option Closing Date shall not be earlier than two business
days nor later than ten business days after such notice. The Option Closing Date
and the location of delivery of and payment for the Additional Debentures may be
varied by agreement between DLJ and the Company.
The Debentures shall be registered in such names and issued in
such denominations as you shall request in writing not later than two full
business days prior to the Closing Date or the Option Closing Date, as the case
may be, and shall be made available to you for inspection not later than 9:30
A.M., New York City time, on the business day next preceding the Closing Date or
the Option Closing Date, as the case may be. Definitive Debentures shall be
delivered to you on the Closing Date or the Option Closing Date, as the case may
be, with any transfer taxes payable upon initial issuance thereof duly paid by
the Company, for the respective accounts of the Underwriters against payment of
the Purchase Price therefor by certified or official bank check or checks
payable in New York Clearing House or similar next-day funds to the order of the
Company.
6. AGREEMENTS OF THE COMPANY. The Company agrees
with you that:
(a) It will, if the Registration Statement has not heretofore
become effective under the Act, and, if necessary or required by law,
file an amendment to the Registration Statement or, if necessary
pursuant to Rule 430A under the Act, a post-effective amendment to the
Registration Statement, as soon as practicable after the execution and
delivery of this Agreement, and will use its best efforts to cause the
Registration Statement or such post-effective amendment to become
effective at the earliest possible time. The Company will comply fully
and in a timely manner with the applicable provisions of Rule 424 and
Rule 430A under the Act.
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(b) It will advise you promptly and, if requested by you,
confirm such advice in writing, (i) when the Registration Statement has
become effective, if and when the Prospectus is sent for filing
pursuant to Rule 424 under the Act and when any post-effective
amendment to the Registration Statement becomes effective, (ii) of the
receipt of any comments from the Commission that relate to the
Registration Statement or requests by the Commission for amendments to
the Registration Statement or amendments or supplements to the
Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, or of the suspension of qualification of the
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for such purpose by the Commission or any state
securities commission or other regulatory authority, and (iv) of the
happening of any event during the period referred to in paragraph (e)
below which makes any statement of a material fact made in the
Registration Statement (as amended or supplemented from time to time)
untrue or which requires the making of any additions to or changes in
the Registration Statement (as amended or supplemented from time to
time) in order to make the statements therein not misleading or that
makes any statement of a material fact made in the Prospectus (as
amended or supplemented from time to time) untrue or which requires the
making of any additions to or changes in the Prospectus (as amended or
supplemented from time to time) in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any
state securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption of the Securities
under any state securities or Blue Sky laws, the Company shall, if
reasonably requested by you, use every reasonable effort to obtain the
withdrawal or lifting of such order at the earliest possible time.
(c) It will furnish to the Underwriters without charge four
(4) signed copies of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits filed
therewith or incorporated by reference therein, and will furnish to you
and each Underwriter designated by you such number of conformed copies
of the Registration Statement
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as so filed and of each amendment to it, without
exhibits, as you may reasonably request.
(d) It will not file any amendment to the Registration
Statement, whether before or after the time when the Registration
Statement becomes effective, or make any amendment or supplement to the
Prospectus, of which you shall not previously have been advised and
provided a copy prior to the filing or making thereof or to which you
shall reasonably object; and it will prepare and file with the
Commission, promptly upon your reasonable request, any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
that may be necessary or advisable in connection with the distribution
of the Debentures by you, and will use its best efforts to cause the
same to become effective as promptly as possible.
(e) Promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as in the
opinion of counsel for the Underwriters a prospectus is required by the
Act to be delivered in connection with sales by an Underwriter or a
dealer, it will furnish to each Underwriter and dealer without charge
as many copies of the Prospectus (and of any amendment or supplement to
the Prospectus) as such Underwriter or dealer may reasonably request
for the purposes contemplated by the Act.
(f) If during the period specified in paragraph (e) any event
shall occur as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances existing as of the date the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with the Act, it will, as promptly as
practicable, prepare and file with the Commission an appropriate
amendment or supplement to the Prospectus so that the statements in the
Prospectus, as so amended or supplemented, will not, in the light of
the circumstances existing as of the date the Prospectus is so
delivered, be misleading, and will comply with the Act, and will
furnish to each Underwriter and to such dealers as you shall specify
without charge such number of copies thereof as such Underwriter and
such dealers may reasonably request.
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(g) Prior to any public offering of the Securities, it will
cooperate with you and counsel for the Underwriters in connection with
the registration or qualification of the Securities for offer and sale
by the several Underwriters and by dealers under the state securities
or Blue Sky laws of such jurisdictions as you may request (provided,
that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to
take any action that would subject it to general consent to service of
process in any jurisdiction in which it is not now so subject). The
Company will continue such qualification in effect so long as required
by law for distribution of the Securities and will file such consents
to service of process or other documents as may be necessary in order
to effect such registration or qualification (provided, that the
Company shall not be obligated to take any action that would subject it
to general consent to service of process in any jurisdiction in which
it is not now so subject).
(h) It will make generally available to its security holders
as soon as reasonably practicable a consolidated earnings statement
covering a period of at least twelve months beginning after the
"effective date" (as defined in Rule 158 under the Act) of the
Registration Statement (but in no event commencing later than 90 days
after such date) which shall satisfy the provisions of Section 11(a) of
the Act and Rule 158 thereunder.
(i) It will timely complete all required filings and otherwise
comply fully in a timely manner with all provisions of the Securities
Exchange Act of 1934, as amended, including the rules and regulations
thereunder (collectively, the "Exchange Act"), to cause the Securities
to be registered pursuant thereto.
(j) During the period of five years after the date of this
Agreement, to furnish to you as soon as available a copy of each report
or other publicly available information of the Company mailed to the
holders of the Securities or of its Common Stock or filed with the
Commission and such other publicly available information concerning the
Company and its subsidiaries as you may reasonably request.
(k) It will use the proceeds from the sale of the
Debentures in the manner described in the Prospectus
under the caption "Use of Proceeds."
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(l) (i) It will cause the Debentures to be included for
trading on the Nasdaq SmallCap Market and any shares of Common Stock
issuable upon conversion of the Debentures to be included for trading
on the Nasdaq Stock Market National Market (the "NASDAQ-NM") and (ii)
will use commercially reasonable efforts to maintain the inclusion of
the Debentures for trading on the Nasdaq SmallCap Market or a national
securities exchange for a period of three years after the effective
date of the Registration Statement.
(m) It has not taken and will not take, directly or
indirectly, any action designed, or that might reasonably be expected,
to cause or result in stabilization or manipulation of the market price
of the Debentures or the Common Stock to facilitate the sale or resale
of the Debentures.
(n) It will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to
or after the Closing Date or the Option Closing Date, as the case may
be, and to satisfy all conditions precedent to the delivery of the
Debentures.
7. PAYMENT OF EXPENSES. The Company agrees with you that
whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated, the Company will pay and be responsible for all costs,
expenses, fees (other than, except as provided in Sections 7(iii) and (v),
Section 9 and Section 11 hereof, the fees and expenses of your counsel) and
taxes in connection with (i) the preparation, printing, filing and distribution
under the Act of the Registration Statement (including financial statements and
exhibits), each Prospectus, preliminary prospectus and all amendments and
supplements to any of them, prior to or during the period specified in paragraph
6(e) (but not exceeding 270 days following the effective date of the
Registration Statement), (ii) the issuance and delivery of the Securities, (iii)
the registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the jurisdictions referred to in paragraph 6(g)
above (including, in each case, the reasonable fees and disbursements of counsel
for the Underwriters relating to such registration or qualification and any
memoranda relating thereto), (iv) furnishing such copies of the Registration
Statement, Prospectus and preliminary prospectus, and all amendments and
supplements to any of them, as may be requested for use in connection with the
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offering or sale of the Securities by the Underwriters or by dealers to whom
Securities may be sold, prior to or during the period specified in paragraph
6(e) (but not exceeding 270 days following the effective date of the
Registration Statement), (v) filing, registration and clearance with the
National Association of Securities Dealers, Inc. (the "NASD") in connection with
the offering of the Securities (including in each case any disbursements of
counsel for the Underwriters relating thereto), (vi) the printing (including
word processing) of this Agreement, any memoranda describing state securities or
Blue Sky laws and all other agreements, memoranda, correspondence and other
documents printed, distributed and delivered in connection with the offering of
the Securities, (vii) the inclusion of the Securities on the Nasdaq SmallCap
Market and the Nasdaq-NM and (viii) the performance by the Company of its other
obligations under this Agreement, the cost of its personnel and other internal
costs, including (without limitation) the fees of the Trustee, the cost of
printing and engraving the Debentures and the certificates representing the
Common Stock issuable upon conversion of the Debentures, and all expenses and
taxes incident to the sale and delivery of the Securities to you.
8. REPRESENTATIONS AND WARRANTIES. (a) The
Company represents and warrants to each Underwriter that:
(i) When the Registration Statement becomes effective
and at the date of the Prospectus (if different), including at the date
of any post-effective amendment or supplement, the Registration
Statement will comply in all material respects with the provisions of
the Act, and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; the Prospectus
(and any supplements or amendments thereto) will at all such times
comply in all material respects with the provisions of the Act and will
not at any such time contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and
warranties contained in this paragraph 8(i) shall not apply to (A)
statements in or omissions from the Registration Statement or the
Prospectus (or any supplement or amendment to any of them) based upon
and conforming with information relating to any Underwriter furnished
to the Company in writing by or on behalf of
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any Underwriter through DLJ expressly for use therein or (B) the Form
T-1. The Company acknowledges for all purposes under this Agreement
(including this paragraph and Section 9 hereof) that the statements set
forth in the first (including the table), third and final paragraphs of
the section entitled "Underwriting" in the Prospectus constitute the
only written information furnished to the Company by or on behalf of
the Underwriters for use in the Registration Statement or the
Prospectus or any preliminary prospectus (or any amendment or
supplement to any of them) and that the Underwriters shall not be
deemed to have provided any information (and therefore are not
responsible for any statements or omissions) pertaining to any
arrangement or agreement with respect to any party other than the
Underwriters. No contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement is not described and
filed as required.
(ii) The documents incorporated by reference in the
Registration Statement or the Prospectus pursuant to Item 12 of Form
S-3 under the Act, at the time they were or hereafter are filed or last
amended, as the case may be, with the Commission, complied and will
comply in all material respects with the requirements of the Exchange
Act and, when read together and with the other information in the
Prospectus, at the time the Registration Statement becomes effective
and at the Closing Date and the Option Closing Date, as the case may
be, 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, in the light of the circumstances under
which they were or are made, not misleading.
(iii) Each preliminary prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 or 430A under the Act,
complied when so filed in all material respects with the provisions of
the Act and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
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(iv) Each "significant subsidiary" (as such term is
defined in Regulation S-X under the Exchange Act) of the Company is
listed on Exhibit 21 to the Annual Report on Form 10-K of the Company
for the year ended December 31, 1994 or is described in the
Registration Statement as having been acquired after December 31, 1994.
Each of the Company and the subsidiaries of the Company (the
"SUBSIDIARIES") has been duly organized, is validly existing and in
good standing under the laws of its jurisdiction of organization and
has full corporate power and authority to carry on its business as it
is currently being conducted (and, in the case of the Company, to
authorize the offering of the Securities and to issue, sell and deliver
the Securities), and is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect (as defined below).
(v) All of the issued and outstanding shares of
capital stock of each of the Subsidiaries has been duly authorized and
validly issued and are owned directly or indirectly by the Company. All
such shares are fully paid and nonassessable, and, except as disclosed
in the Prospectus, are owned by the Company free and clear of any
security interest, mortgage, pledge, claim, lien, encumbrance or
adverse interest of any nature (each, a "LIEN"). There are no
outstanding subscriptions, rights, warrants, options, calls,
convertible or exchangeable securities, commitments of sale, or Liens
related to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership interests in,
any Subsidiary.
(vi) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization"; all the shares of issued and outstanding Common Stock
have been duly authorized and validly issued and are fully paid,
nonassessable and not subject to any preemptive or similar rights;
except as disclosed in the Prospectus and for options issued under the
Pride Petroleum Services, Inc. Long-Term Incentive Plan or the Pride
Petroleum Services, Inc. 1993 Directors' Stock Option Plan, there are
no outstanding (a) securities or
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obligations of the Company convertible into or exchangeable for any
capital stock of the Company, (b) warrants, rights or options to
subscribe for or purchase from the Company any such capital stock or
any such convertible or exchangeable securities or obligations, or (c)
obligations of the Company to issue any shares of capital stock, any
such convertible or exchangeable securities or obligations, or any such
warrants, rights or options; all offers and sales of the Company's
capital stock by the Company prior to the date hereof were at all
relevant times duly registered under the Act or exempt from the
registration requirements of the Act and were duly registered or the
subject of an available exemption from the registration requirements of
the applicable state securities or blue sky laws; the shares of Common
Stock initially issuable upon conversion of the Debentures have been
duly authorized and reserved for issuance and sale upon conversion of
the Debentures, and the Common Stock, when issued and delivered by the
Company upon such conversion, will be validly issued and fully paid and
nonassessable and free of any Lien (other than Liens created by the
holder of the Debentures); the capital stock of the Company, including
the Common Stock, conforms in all material respects to all statements
relating thereto in the Prospectus and the Registration Statement; and
the issuance of the shares of Common Stock by the Company upon
conversion of the Debentures will not be subject to preemptive or other
similar rights;
(vii) The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended, and has been duly authorized
by all necessary corporate action on the part of the Company and, when
executed and delivered by the Company in accordance with its terms
(assuming the due execution and delivery thereof by the Trustee), will
be a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws, now or hereafter in effect, relating to or
affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought at
law or in equity).
(viii) The Debentures have been duly authorized by
all necessary corporate action on the part of the Company and on the
Closing Date, the Indenture and
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the Debentures will have been duly executed by the Company and will
conform in all material respects to the descriptions thereof in the
Prospectus. When the Debentures are issued, executed and authenticated
in accordance with the Indenture and paid for in accordance with the
terms of this Agreement, the Debentures will be legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms and entitled to the benefits of the
Indenture, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws, now or
hereafter in effect, relating to or affecting creditors' rights and
remedies generally (regardless of whether enforcement is sought at law
or in equity).
(ix) Neither the Company nor any Subsidiary is in
violation of or in default under (a) its charter or bylaws or (b) any
bond, debenture, note or any other evidence of indebtedness or any
indenture, mortgage, deed of trust or other contract, lease or other
instrument to which it is a party or by which it is bound, or to which
any of its property or assets is subject, which could reasonably be
expected to have a material adverse effect, singly or in the aggregate,
on the business, results of operations, financial condition or business
affairs, of the Company and the Subsidiaries, taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(x) This Agreement has been duly and validly
authorized, executed and delivered by the Company, and constitutes a
valid and legally binding agreement of the Company, enforceable against
the Company in accordance with its terms (except as rights to indemnity
and contribution hereunder may be limited by federal or state
securities laws or public policy relating thereto).
(xi) The execution and delivery of this Agreement and
the Indenture by the Company, the issuance and sale of the Securities,
the performance of this Agreement and the Indenture 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 for such consents as have been obtained and except as such
may be required under the securities or Blue Sky laws of the various
states) and will not conflict with or result in a breach of any of the
terms or provisions of, or
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constitute a default or cause an acceleration of any obligation under,
(A) the charter or bylaws of the Company or any Subsidiary, (B) any
bond, note, debenture or other evidence of indebtedness or any
indenture, mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any Subsidiary is a party or by
which any of them is bound, or to which any of the property or assets
of the Company or any Subsidiary is subject, which could reasonably be
expected to have a Material Adverse Effect, (C) any order of any court
or governmental agency or authority entered in any proceeding to which
the Company or any Subsidiary is a party or by which any of them is
bound, or (D) violate or conflict with any applicable Federal, state or
local law, rule, administrative regulation or ordinance or
administrative or court decree applicable to the Company or any
Subsidiary or any of its property.
(xii) Except as disclosed in the Prospectus, there is
no action, suit or proceeding before or by any court or governmental
agency or body pending against the Company or any of its Subsidiaries
that is required to be disclosed in the Registration Statement or the
Prospectus, or which could reasonably be expected to have a Material
Adverse Effect, or materially and adversely affect the performance of
the Company's obligations pursuant to this Agreement and, to the best
of the Company's knowledge, no such proceedings are contemplated or
threatened. No action has been taken with respect to the Company or any
Subsidiary, and no statute, rule or regulation or order has been
enacted, adopted or issued by any governmental agency that prevents the
issuance of the Securities, suspends the effectiveness of the
Registration Statement, prevents or suspends the use of any preliminary
prospectus or the Prospectus or prevents or suspends the sale of the
Securities in any of the jurisdictions that you may have specified
pursuant to Section 6(g) hereof; no injunction, restraining order or
other order of any court of competent jurisdiction has been issued with
respect to the Company or any Subsidiary that would prevent the
issuance of the Securities, suspend the effectiveness of the
Registration Statement, prevent or suspend the use of any preliminary
prospectus or the Prospectus or prevent or suspend the sale of the
Securities in any jurisdiction that you may have specified pursuant to
Section 6(g) hereof; no action, suit or proceeding before any court or
arbitrator or any governmental body, agency or official (domestic or
14
foreign), is pending against or, to the knowledge of the Company,
threatened against, the Company or any Subsidiary that, if adversely
determined, could reasonably be expected to (a) interfere with or
adversely affect the issuance of the Securities or (b) in any manner
invalidate this Agreement or the Indenture; and every request of the
Commission, or any securities authority or agency of any jurisdiction,
for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) has been complied with in all
material respects.
(xiii) The Debentures have been approved for
inclusion in the Nasdaq SmallCap Market and the Common Stock issuable
upon conversion of the Debentures have been approved for inclusion in
the Nasdaq-NM, subject to official notice of issuance.
(xiv) Xxxxxxx & Xxxxxxx L.L.P., the firm of
accountants that has certified the applicable consolidated financial
statements and supporting schedules of the Company filed with the
Commission as part of or incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants with
respect to the Company and the Subsidiaries, as required by the Act.
The consolidated financial statements, together with related schedules
and notes, set forth or incorporated by reference in the Prospectus and
the Registration Statement comply as to form in all material respects
with the requirements of the Act. Such financial statements fairly
present in all material respects the consolidated financial position of
the Company and the Subsidiaries at the respective dates indicated and
the results of their operations and their cash flows for the respective
periods indicated, and have been prepared in accordance with generally
accepted accounting principles ("GAAP"), except as otherwise expressly
stated therein, as consistently applied throughout such periods. The
other financial and statistical information and data included or
incorporated by reference in the Prospectus and in the Registration
Statement, historical and PRO FORMA, are, in all material respects,
accurate and prepared on a basis consistent with such financial
statements and the books and records of the Company. Each of the
Company and its subsidiaries keeps books and records that fairly
reflect its assets and maintains internal accounting controls which
provide reasonable assurance that (a) transactions are executed in
accordance with management's
15
authorization, (b) transactions are recorded as necessary to permit
preparation of the Company's consolidated financial statements in
accordance with generally accepted accounting principles and to
maintain accountability for the assets of the Company, (c) access to
the assets of the Company and each of its subsidiaries is permitted
only in accordance with management's authorization, and (d) the
recorded accountability for assets of the Company and each of its
subsidiaries is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any material
differences.
(xv) Except as disclosed in the Registration
Statement, subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) neither
the Company nor any Subsidiary has incurred any liabilities or
obligations, direct or contingent, that are material to the Company and
the Subsidiaries, taken as a whole, nor entered into any transaction
not in the ordinary course of business that is material to the Company
and the Subsidiaries, taken as a whole, and is required to be disclosed
on a balance sheet in accordance with GAAP, either when considered
alone or together with all other such transactions, (ii) there has been
no decision or judgment in the nature of litigation adverse to the
Company or any Subsidiary that could reasonably be expected to have a
Material Adverse Effect, and (iii) there has been no material adverse
change in the financial condition or in the results of operations,
business affairs or business prospects of the Company and the
Subsidiaries, taken as a whole (any of the above, a "MATERIAL ADVERSE
CHANGE").
(xvi) The Company and each of its Subsidiaries has
such certificates, permits, licenses, approvals, authorizations and
other rights (collectively, "PERMITS") issued by governmental or
regulatory authorities as are, in all material respects, necessary to
own, lease and operate their respective properties and to conduct their
respective businesses; the Company and each of its Subsidiaries has
fulfilled and performed all of its material obligations with respect to
such Permits and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or results
or would result in any other material impairment of the rights of the
holder of any such Permit; and, except as described
16
in the Prospectus, such Permits contain no restrictions that are
materially burdensome to the Company and its Subsidiaries considered as
a whole.
(xvii) All material tax returns required to be filed
by the Company and the Subsidiaries in every jurisdiction have been
filed, other than those filings being contested in good faith, and,
except as disclosed in the Prospectus, all taxes, including withholding
taxes, penalties and interest, assessments, fees and other charges due
or claimed to be due from such entities have been paid.
(xviii) Except as would not, individually or in the
aggregate, have a Material Adverse Effect (a) neither the Company nor
any Subsidiary is in violation of any foreign, Federal, state or local
laws and regulations relating to pollution or protection of human
health or the environment (including, without limitation, ambient air,
surface water, ground water, land surface or subsurface strata),
including, without limitation, laws and regulations relating to
emissions, discharges, releases or threatened releases of toxic or
hazardous substances, materials or wastes, or petroleum and petroleum
products ("MATERIALS OF ENVIRONMENTAL CONCERN"), or otherwise relating
to the storage, disposal, transport or handling of Materials of
Environmental Concern (collectively, "ENVIRONMENTAL LAWS"), which
violation includes, but is not limited to, noncompliance with any
permits or other governmental authorizations; (b) neither the Company
nor any Subsidiary has received any communication (written or oral),
whether from a governmental authority or otherwise, alleging any such
violation or noncompliance, and there are no circumstances, either
past, present or that are reasonably foreseeable, that may lead to such
violation in the future; (c) there is no pending or threatened claim,
action, investigation or notice (written or oral) by any person or
entity alleging potential liability for investigatory, cleanup, or
governmental responses costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Material of
Environmental Concern at any location owned or operated by the Company
or any Subsidiary, now or in the past, or (y) circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law
(collectively, "ENVIRONMENTAL CLAIMS"); and (d) there are no past or
present actions, activities,
17
circumstances, conditions, events or incidents, that could form the
basis of any Environmental Claim against the Company or any Subsidiary
or against any person or entity whose liability for any Environmental
Claim the Company or any Subsidiary has retained or assumed either
contractually or by operation of law.
(xix) Except as would not have a Material Adverse
Effect, (A) neither the Company nor any Subsidiary is in material
violation of any Federal, state or local law relating to discrimination
in the hiring, promotion or pay of employees nor any applicable wage or
hour laws nor any provisions of the Employee Retirement Income Security
Act of 1974, as amended, or the rules and regulations promulgated
thereunder, (B) there is no unfair labor practice complaint pending
against the Company or any Subsidiary or, to the best knowledge of the
Company, threatened against any of them, before the National Labor
Relations Board or any state or local labor relations board, and (C)
there is no labor dispute in which the Company or any Subsidiary is
involved nor, to the best knowledge of the Company, is any labor
dispute imminent, other than routine disciplinary and grievance
matters.
(xx) Except as otherwise set forth in the Prospectus
or such as would not have a Material Adverse Effect, the Company and
each Subsidiary has good and marketable title, free and clear of all
Liens (except Liens for taxes not yet due and payable), to all property
and assets described in the Registration Statement as being owned by
it. All leases to which the Company or any Subsidiary is a party are
valid and binding and no default has occurred or is continuing
thereunder, which might result in a Material Adverse Effect, and the
Company and each Subsidiary enjoy peaceful and undisturbed possession
under all such leases to which any of them is a party as lessee with
such exceptions as do not materially interfere with the use made by the
Company or such Subsidiary.
(xxi) The Company and its Subsidiaries maintain what
they believe to be reasonably adequate insurance coverage for those
risks that the Company believes to be customarily insured against by
companies in the same business.
(xxii) Except for the Registration Rights
Agreement between the Company and Offshore Rigs, L.L.C.,
18
the Registration Rights Agreement between the Company and Xxxxxxx X.
Xxxxx and Xxxxx X. Xxxxxx, and the Agreement dated as of June 13, 1995
between the Company, Financial Overseas Management, S.A. (or its
designee) and Xxxxx X. Xxxxxxx Xxxx and Xxx Xxxxx Xxxxxxx Xxxx, no
holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security of the
Company. No holder of any security of the Company has any right to
require registration of shares of Common Stock or any other security of
the Company as part of or under the Registration Statement.
(xxiii) Neither the Company nor any Subsidiary is a
party to any agreement that currently prohibits, directly or
indirectly, any Subsidiary from paying any dividends to the Company,
from making any other distributions on such Subsidiary's capital stock,
from repaying to the Company any loans or advances to such subsidiary
or from transferring any of such Subsidiary's property or assets to the
Company or any other Subsidiary of the Company, except as disclosed in
the Prospectus.
(xxiv) The Company and the Subsidiaries own or
possess the right to use all patents, trademarks, trademark
registrations, service marks, service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets and rights described in
the Prospectus as being owned by them or any of them or necessary for
the conduct of their respective businesses, and the Company is not
aware of any claim to the contrary or any challenge by any other person
to the rights of the Company and the Subsidiaries with respect to the
foregoing.
(xxv) The Company is not, and will not be as a result
of the consummation of the transactions contemplated by this Agreement,
an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(xxvi) The conditions for use of a Registration
Statement on Form S-3 set forth in the General Instructions to Form S-3
have been satisfied with respect to the Company and the transactions
contemplated by this Agreement and the Registration Statement.
19
(xxvii) To the knowledge of the Company after inquiry
of its executive officers and directors, there are no direct or
indirect associations or affiliations with any member of the NASD among
the Company's executive officers, directors or principal stockholders,
except as set forth in the Registration Statement or as otherwise
disclosed to the Underwriters.
(xxviii) Neither the Company nor any of its
subsidiaries, or any of their affiliates, does business with the
government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes (Chapter
92-198, Laws of Florida).
(xxix) Except as disclosed in the Prospectus, there
are no business relationships or related party transactions required to
be disclosed therein by Item 404 of Regulation S-K of the Commission.
9. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless, (i)
each of the Underwriters and (ii) each person, if any, who controls
(within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) any of the Underwriters (any of the persons referred to
in this clause (ii) being hereinafter referred to as a "CONTROLLING
PERSON") (any person referred to in clause (i) or (ii) may hereinafter
be referred to as an "INDEMNIFIED PERSON") to the fullest extent
lawful, from and against any and all losses, claims, damages,
liabilities, actions and expenses (including without limitation and as
incurred, reimbursement of all reasonable costs of investigating,
preparing, pursuing, or defending any claim or action, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of
counsel employed by any Indemnified Person in accordance with the
provisions of this Section 9) directly or indirectly caused by, related
to, based upon or arising out of, or in connection with any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (including, in each case,
any amendment or supplement thereto) or any preliminary prospectus, or
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary
20
to make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading, except
insofar as such losses, claims, damages, liabilities or expenses are
caused by an untrue statement or omission or alleged untrue statement
or omission that is made in reliance upon and in conformity with
information relating to any Underwriter furnished in writing to the
Company through DLJ by or on behalf of any such Underwriter expressly
for use therein; PROVIDED that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages, liabilities, actions or expenses purchased Debentures, or any
controlling person of such Underwriter, if a copy of the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) had not been sent or given by or on
behalf of such Underwriter to such person at or prior to the written
confirmation of the sale of Debentures to such person by such
Underwriter and the untrue statement or omission (or alleged untrue
statement or omission) of a material fact in such preliminary
prospectus was corrected in the Prospectus (as amended or
supplemented).
(b) In case any action or proceeding (including any
governmental investigation) shall be brought or asserted against any of
the Indemnified Persons with respect to which indemnity may be sought
against the Company, such Underwriter (or the Underwriter controlled by
such controlling person) shall promptly notify the Company in writing
(provided, that the failure to give such notice shall not relieve the
Company of any liability which it may have pursuant to this Agreement,
unless and only to the extent that such omission results in the loss or
compromise of any material rights or defenses by the Company). Upon
receiving such notice, the Company shall be entitled to participate in
any such action or proceeding and to assume, at its sole expense, the
defense thereof, with counsel reasonably satisfactory to such
Indemnified Person and, after written notice from the Company to such
Indemnified Person of its election so to assume the defense thereof,
the Company shall not be liable to such Indemnified Person hereunder
for legal expenses of other counsel subsequently incurred by such
Indemnified Person in connection with the defense thereof, other than
reasonable costs of investigation, unless (i) the Company agrees in
writing to pay such
21
fees and expenses, or (ii) the Company fails promptly to assume such
defense or fails to employ counsel reasonably satisfactory to such
Indemnified Person or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include both such
Indemnified Person and the Company or an affiliate of the Company, and
such Indemnified Person shall have been advised by counsel either (x)
that there may be one or more legal defenses available to such
Indemnified Person that are different from or additional to those
available to the Company or such affiliate or (y) a conflict may exist
between such Indemnified Person and the Company or such affiliate (in
which case, if such Indemnified Person notifies the Company in writing,
the Company shall not have the right to assume the defense thereof), it
being understood, however, that the Company shall not, in connection
with any one such action or proceeding or separate but substantially
similar or related actions or proceedings arising out of the same
general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition
to any local counsel) at any time for each such Indemnified Person. The
Company shall be liable for any settlement of any such action or
proceeding effected with the prior written consent of the Company,
which consent will not be unreasonably withheld, and the Company agrees
to indemnify and hold harmless any Indemnified Person from and against
any loss, claim, damage, liability or expense by reason of any such
settlement. Notwithstanding the immediately preceding sentence, if in
any case where the fees and expenses of counsel are at the expense of
the indemnifying party and an Indemnified Person shall have requested
the indemnifying party to reimburse the Indemnified Person for such
fees and expenses of counsel as incurred, such indemnifying party
agrees that it shall be liable for any settlement of any action
effected without its written consent if (i) such settlement is entered
into more than 30 days after the receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall have
failed to reimburse the Indemnified Person in accordance with such
request for reimbursement (or, if within 30 days of the receipt of the
aforesaid request, the indemnifying party shall have made a good faith
written challenge to the reasonableness of the amount or nature of the
reimbursement requested or the sufficiency of the documentation
supporting the reimbursement requested (which challenge shall
specifically set forth the amount
22
or nature of the requested reimbursement which the indemnifying party
in good faith believes to be unreasonable or the basis for the good
faith claim as to the insufficiency of any supporting documentation),
then such indemnifying party shall not have reimbursed the indemnified
party for the amount which is not being so challenged) prior to the
date of such settlement. The Company shall not, without the prior
written consent of each Indemnified Person, settle or compromise or
consent to the entry of judgment in or otherwise seek to terminate any
pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought
hereunder (whether or not any Indemnified Person is a party thereto),
unless such settlement, compromise, consent or termination includes an
unconditional release of each Indemnified Person from all liability
arising out of such action, claim, litigation or proceeding.
(c) Each of the Underwriters agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors,
officers who sign the Registration Statement, any person controlling
(within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) the Company, to the same extent as the foregoing
indemnity from the Company and the Subsidiaries to each of the
Indemnified Persons, but only with respect to claims and actions based
on information relating to such Underwriter that was furnished in
writing by such Underwriter through DLJ expressly for use in the
Registration Statement or the Prospectus or any Preliminary Prospectus
and only insofar as the information included in the Registration
Statement, the Prospectus or any Preliminary Prospectus was presented
therein in conformity with the information furnished by such
Underwriter as provided above. In case any action or proceeding
(including any governmental investigation) shall be brought or asserted
against the Company, any of its directors, any such officer, or any
such controlling person based on the Registration Statement, the
Prospectus or any preliminary prospectus in respect of which indemnity
may be sought against any Underwriter pursuant to the foregoing
sentence, the Underwriter shall have the rights and duties given to the
Company (except that if the Company shall have assumed the defense
thereof, such Underwriter shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of
such
23
Underwriter), and the Company, its directors, any such officers and
each such controlling person shall have the rights and duties given to
the Indemnified Person by Section 9(b) above.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or expenses referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities and
expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other hand, from the offering of the 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 indemnifying parties and the indemnified party,
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand, and the Underwriters,
on the other hand, shall be deemed to be in the same proportion as the
total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company,
bear to the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company on the one
hand and the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact related to information supplied by the Company on the one
hand or by the Underwriters on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The indemnity and contribution
obligations set forth herein of any party shall be in addition to any
liability or obligation such party may otherwise have to the other.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9(d) were
determined by pro rata allocation (even if the Underwriters were
treated as one
24
entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in
the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 9,
no Underwriter (and its related Indemnified Persons) shall be required
to contribute, in the aggregate, any amount in excess of the amount by
which the total underwriting discount applicable to the Debentures
purchased by such Underwriter exceeds the amount of any damages which
such Underwriter (and its related Indemnified Persons) has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 9(d) are several in
proportion to the respective aggregate price to the public of
Securities purchased by each of the Underwriters hereunder and not
joint.
10. CONDITIONS TO UNDERWRITERS' OBLIGATIONS. The
obligations of the several Underwriters to purchase the Firm
Debentures under this Agreement are subject to the satisfac-
tion of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the Closing
Date. All agreements of the Company set forth in Sections 6(a) through
(f), Sections 6(i), 6(l)(i) and 6(m), and the last paragraph of Section
3 of this Agreement that are required to be performed or complied with
by the Company at or prior to the Closing Date shall have been
performed or complied with by the Company at or prior to the Closing
Date. The Company shall have performed or complied in all material
respects with all of its agreements herein contained (other than those
referenced in the immediately preceding sentence) and required to be
25
performed or complied with by it at or prior to the
Closing Date.
(b) (i) The Registration Statement shall have become effective
(or, if a post-effective amendment is required to be filed pursuant to
Rule 430A under the Act, such post-effective amendment shall have
become effective) not later than 5:00 p.m., New York City time, on the
date of this Agreement or at such later date and time as you may
approve in writing and, at the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been commenced or shall
be pending before or threatened by the Commission, (ii) every request
for additional information on the part of the Commission shall have
been complied with in all material respects, and (iii) no stop order
suspending the sale of the Securities in any jurisdiction referred to
in Section 6(g) shall have been issued and no proceeding for that
purpose shall have been commenced or shall be pending or threatened
which would, in your reasonable judgment, make it impracticable or
inadvisable to market the Securities or to enforce contracts for the
sale of the Securities.
(c) (i) Since the date of the latest balance sheet included in
the Registration Statement and the Prospectus, there shall not have
been any Material Adverse Change, whether or not arising in the
ordinary course of business, (ii) since the date of the latest balance
sheet included in the Registration Statement and the Prospectus, there
shall not have been any material adverse change, or any development
involving a prospective material adverse change, in the capital stock
or long-term debt, or any material increase in short-term debt, of the
Company or any of its Subsidiaries and (iii) the Company and its
Subsidiaries shall have no liability or obligation, direct or
contingent, that is material to the Company and its Subsidiaries taken
as a whole and is required to be disclosed in the notes to its
financial statements in accordance with GAAP and which is not so
disclosed in or incorporated by reference into the Registration
Statement.
(d) You shall have received a certificate of the Company,
dated the Closing Date, executed on behalf of the Company by the Chief
Executive Officer and the Chief Financial Officer of the Company, in
their capacities as
26
officers of the Company confirming the matters set forth
in paragraphs (a), (b) and (c) of this Section 10.
(e) You shall have received an opinion (satisfactory to you
and your counsel), dated the Closing Date, of XxXxxxxxxx Xxxxxxxx Xxxx,
a law corporation, counsel for the Company, to the effect that:
(i) (A) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation and (B) has the corporate power and
authority to own and lease its properties and to conduct its business
as described in the Prospectus;
(ii) the Company has the corporate power and
authority to enter into and perform this Agreement and the Indenture
and to issue, sell and deliver the Securities; this Agreement and the
Indenture have been duly and validly authorized by all necessary
corporate action by the Company, and have been duly executed and
delivered by the Company;
(iii) (A) the authorized capital stock of the Company
conforms as to legal matters to the description thereof contained in
the "Description of Capital Stock" section of the Registration
Statement and the Prospectus; and (B) the shares of Common Stock
initially issuable upon conversion of the Debentures have been duly
authorized and reserved for issuance upon conversion of the Debentures
and, when issued and delivered upon such conversion, the Common Stock
will be validly issued, fully paid and nonassessable and not subject to
any preemptive or similar rights pursuant to Louisiana Law or the
Company's charter or by-laws;
(iv) the Debentures have been duly authorized
for issuance and sale to the Underwriters pursuant to
this Agreement;
(v) this Agreement has been duly authorized,
executed and delivered by the Company;
(vi) neither the issuance and sale of the Securities,
nor the performance of the Company's obligations pursuant to this
Agreement or the Indenture will (A) conflict with, result in a breach
of, or constitute a default under the terms of any Louisiana statute,
rule or regulation to which the Company or any of its
27
properties is subject Company or (B) violate any of the
provisions of the charter or by-laws of the Company as
in effect on the date of the opinion;
(vii) the certificate of incorporation and bylaws of
the Company conform to the descriptions thereof contained in the
Registration Statement and the Prospectus and the provisions of
Louisiana law described in the Registration Statement and the
Prospectus conform to the descriptions thereof contained in the
Registration Statement and the Prospectus.
(f) You shall have received an opinion (satisfactory to you
and your counsel), dated the Closing Date, of such foreign counsel for
the Company as are acceptable to you, to the effect that:
(i) (A) Each of Pride International, C.A.
and Pride Petrotech S.A.M.P.I.C. (the "FOREIGN
SUBSIDIARIES") has been duly organized and is validly
existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and (B) has
the corporate power and authority to own and lease its
properties and to conduct its business as described in
the Prospectus;
(ii) Each of the Foreign Subsidiaries is duly
qualified and is in good standing as a foreign corporation authorized
to do business in each jurisdiction in which the nature of its business
or its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a Material
Adverse Effect;
(iii) all of the issued and outstanding capital stock
of each of the Foreign Subsidiaries has been duly authorized and
validly issued, and is fully paid and nonassessable, and the shares of
capital stock of each Foreign Subsidiary are owned directly by the
Company free and clear of any perfected security interest and, to such
counsel's knowledge, any other security interests, claims, liens or
encumbrances; and
(iv) to such counsel's knowledge, except as disclosed
in the Prospectus or in this Agreement, there are no outstanding (a)
securities or obligations of the any of the Foreign Subsidiaries
convertible into or exchangeable for any capital stock of any such
subsidiary, (b) warrants, rights or options to subscribe
28
for or purchase from any such subsidiary any such capital stock or any
such convertible or exchangeable securities or obligations, or (c)
obligations of any such subsidiary to issue any shares of capital
stock, any such convertible or exchangeable securities or obligations,
or any such warrants, rights or options.
(g) You shall have received an opinion (satisfactory to you
and your counsel), dated the Closing Date, of Xxxxx & Xxxxx, L.L.P.,
counsel for the Company, to the effect that:
(i) to such counsel's knowledge, except as disclosed
in the Prospectus and for options issued under the Pride Petroleum
Services, Inc. Long-Term Incentive Plan or the Pride Petroleum
Services, Inc. 1993 Directors' Stock Option Plan, there are no
outstanding (a) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of
the Company or any such subsidiary, (b) warrants, rights or options to
subscribe for or purchase from the Company or any such subsidiary any
such capital stock or any such convertible or exchangeable securities
or obligations, or (c) obligations of the Company or any such
subsidiary to issue any shares of capital stock, any such convertible
or exchangeable securities or obligations, or any such warrants, rights
or options;
(ii) the Indenture, assuming due authorization,
execution and delivery thereof by the Company and the Trustee, is a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws then or thereafter in effect relating to or affecting
rights and remedies of creditors, and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity) and to the discretion of the court before which any
proceeding therefor may be brought;
(iii) the Debentures, when issued, executed and
authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters in accordance with the
terms of this Agreement, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms, subject to applicable bank-
29
ruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and similar laws then or thereafter in effect relating to or affecting
rights and remedies of creditors, and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity) and to the discretion of the court before which any
proceeding therefor may be brought;
(iv) this Agreement (assuming the due authorization,
execution and delivery hereof by the Company and the valid
authorization, execution and delivery by the Underwriters) is a valid
and binding agreement of the Company enforceable in accordance with its
terms (except as rights to indemnity and contribution hereunder may be
limited by applicable law) subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws then or thereafter in effect relating to or affecting
rights and remedies of creditors, and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity) and to the discretion of the court before which any
proceeding therefor may be brought;
(v) the Registration Statement has become effective
under the Act and the Form 8-A relating to the Debentures has become
effective under the Exchange Act; any required filing of the
Prospectus, and any supplements thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule
424(b); and to the knowledge of such counsel no stop order suspending
the effectiveness of the Registration Statement or of the Form 8-A has
been issued and no proceedings therefor initiated or threatened by the
Commission;
(vi) each document previously filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus, at the
time it was filed or last amended (except for financial statements, the
notes thereto and related schedules and other financial, numerical,
statistical or accounting data included or incorporated by reference
therein or omitted therefrom, as to which such counsel need express no
opinion), appeared on its face to comply as to form in all material
respects to the applicable requirements of the Exchange Act.
30
(vii) the Indenture complies as to form in all
material respects with the Trust Indenture Act of 1939, as amended (the
"TIA"), and the rules and regulations thereunder and, upon
effectiveness of the Registration Statement, will be duly qualified
under the TIA;
(viii) to the knowledge of such counsel, no
authorization, approval, consent or order of any court or United States
Federal or State, governmental authority or agency is required to be
obtained by the Company in connection with the sale by the Company of
the Securities to you, except (a) such as have been obtained under the
Act, and (b) such as may be required by the NASD or under the state
securities or Blue Sky laws or regulations of any jurisdiction in the
United States in connection with the purchase and distribution of the
Securities by the Underwriters.
(ix) the respective provisions of the Debentures and
the Indenture described in the Registration Statement and the
Prospectus conform in all material respects to the respective
descriptions thereof contained in the Registration Statement and the
Prospectus;
(x) the Registration Statement, at the time it became
effective, and the Prospectus, on its issue date and on the Closing
Date (except, in each case, for financial statements, the notes
thereto, the auditors' report thereon and related schedules and other
financial, numerical, statistical or accounting data included or
incorporated by reference therein or omitted therefrom, as to which no
opinion need be expressed), appeared on their face to comply as to form
in all material respects with the applicable requirements of the Act;
to the knowledge of such counsel, there are no contracts or agreements
to which the Company or any Subsidiary is a party or by which any of
them may be bound that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement other than those described therein or filed or
incorporated by reference as exhibits thereto;
(xi) neither the issuance and sale of the Securities,
nor the performance of the Company's obligations pursuant to this
Agreement or the Indenture will conflict with, result in a breach of,
or constitute a
31
default under (A) the terms of any indenture or other agreement or
instrument and to which the Company or any Subsidiary is a party or
bound which is material to the Company and its Subsidiaries considered
as a whole and of which such counsel has knowledge, (B) any statute,
rule or regulation to which the Company or any Subsidiary is a party or
by which any of them is bound, or to which any of the properties of the
Company or any Subsidiary is subject, or (C) any order of any court or
governmental agency or body having jurisdiction over the Company or any
Subsidiary or any of their properties of which such counsel has
knowledge;
(xii) to the knowledge of such counsel, there is no
current, pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any Subsidiary or to which any of their
respective property is subject of a character required to be disclosed
in the Registration Statement which is not disclosed in the Prospectus;
(xiii) the Company is not, and will not be as a
result of the consummation of the transactions contemplated by this
Agreement, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended;
(xiv) to the knowledge of such counsel, no holder of
any security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company as part of
or under the Registration Statement;
(h) You shall have received an opinion (satis-
factory to you and your counsel), dated the Closing
Date, of Xxxxxx X. Xxxxxxx, General Counsel of the
Company, to the effect that:
(i) Each of the Subsidiaries that has been organized
under the laws of a state of the United States (the "U.S.
SUBSIDIARIES") has been duly organized and is validly existing as
corporations in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to own and
lease its properties and to conduct its business as described in the
Prospectus;
32
(ii) the Company and each of the U. S.
Subsidiaries is duly qualified and is in good standing
as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such
qualification, except where the failure to be so
qualified would not have a Material Adverse Effect;
(iii) all of the issued and outstanding capital stock
of each of the U. S. Subsidiaries has been duly authorized and validly
issued, and is fully paid and nonassessable, and the shares of capital
stock of each Subsidiary are owned directly by the Company free and
clear of any perfected security interest and, to such counsel's
knowledge, any other security interests, claims, liens or encumbrances;
(iv) to such counsel's knowledge, except as disclosed
in the Prospectus and for options issued under the Pride Petroleum
Services, Inc. Long-Term Incentive Plan or the Pride Petroleum
Services, Inc. 1993 Directors' Stock Option Plan, there are no
outstanding (a) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of
the Company or any such subsidiary, (b) warrants, rights or options to
subscribe for or purchase from the Company or any such subsidiary any
such capital stock or any such convertible or exchangeable securities
or obligations, or (c) obligations of the Company or any such
subsidiary to issue any shares of capital stock, any such convertible
or exchangeable securities or obligations, or any such warrants, rights
or options;
(v) neither the issuance and sale of the Securities,
nor the performance of the Company's obligations pursuant to this
Agreement or the Indenture will violate any of the provisions of the
charter or by-laws of the Company or any Subsidiary as in effect on the
date of the opinion;
(vi) to the knowledge of such counsel, no holder of
any security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company as part of
or under the Registration Statement;
(vii) to the knowledge of such counsel, there
is no current, pending or threatened action, suit or
33
proceeding before any court or governmental agency, authority or body
or any arbitrator involving the Company or any Subsidiary or to which
any of their respective property is subject of a character required to
be disclosed in the Registration Statement which is not disclosed in
the Prospectus;
(viii) except as will not have a Material Adverse
Effect: to the knowledge of such counsel, each of the Company and its
Subsidiaries has such Permits, as are in all material respects,
necessary to own, lease and operate their respective properties and to
conduct their respective businesses in the manner described in the
Prospectus; to the knowledge of such counsel, each of the Company and
its Subsidiaries has fulfilled and performed all of its material
obligations with respect to such Permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of
the rights of the holder of any such Permit, subject in each case to
such qualification as may be set forth in the Prospectus;
(ix) to the knowledge of such counsel, neither the
issuance and sale of the Securities, nor the performance of the
Company's obligations pursuant to this Agreement or the Indenture will
(A) conflict with, result in a breach of, or constitute a default under
the terms of any material indenture or other material agreement or
instrument to which any Foreign Subsidiary is a party or bound, or
constitute a default under, any statute, rule or regulation to which
any Foreign Subsidiary is a party or by which any of them is bound, or
to which any of the properties of any Foreign Subsidiary is subject, or
any order of any court or governmental agency or body having
jurisdiction over any Foreign Subsidiary or any of their properties,
except as will not have a Material Adverse Effect, or (B) violate any
of the provisions of the charter or by-laws of any Foreign Subsidiary
as in effect on the date of the opinion; and
(x) the respective provisions of the employment
agreements and the Pride Petroleum Services, Inc. Long-Term Incentive
Plan described in the Company's proxy statement incorporated by
reference into the Prospectus conform in all material respects to the
respective descriptions thereof contained in such proxy statement.
34
In addition, each of Xxxxx & Xxxxx, L.L.P. and Xxxxxx X.
Xxxxxxx shall state that such counsel has participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company, your representatives and your
counsel at which the contents of the Registration Statement and Prospectus and
related matters were discussed and, although such counsel did not independently
verify such information and is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus, on the basis of the
foregoing (relying as to the factual matters upon the statements of officers and
other representatives of the Company and state officials and as to materiality
to a large degree on officers and other representatives of the Company and your
representatives) no facts came to such counsel's attention that led such counsel
to believe that the Registration Statement (other than the financial statements,
the notes thereto and the auditors' report thereon and other financial,
numerical, statistical and accounting data included or incorporated by reference
therein, or omitted therefrom, or the exhibits thereto or the Form T-1, as to
which such counsel need express no belief) as amended or supplemented, at the
time such Registration Statement or any post-effective amendment became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading (other than information omitted therefrom in
reliance on Rule 430A under the Act), or the Prospectus (other than the
financial statements and notes thereto and other financial, numerical,
statistical and accounting data included or incorporated by reference therein,
or omitted therefrom, as to which such counsel need express no belief) as
amended or supplemented, as of its date and the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
The opinion of Xxxxx & Xxxxx shall be limited to the laws of
the United States and the laws of the State of New York and the State of Texas.
The opinion of Xxxxxx X. Xxxxxxx shall be limited to the laws of the United
States, the laws of the State of Texas, and the corporate law of the State of
Delaware. The opinion of each foreign counsel shall be limited to the laws of
the jurisdiction in which the
35
Foreign Subsidiary with respect to which such opinion is given is organized.
(i) You shall have received on the Closing Date an opinion,
dated the Closing Date, of Xxxx, Xxxxxxx & Xxxxxx LLP, counsel for the
Underwriters, in form and substance reasonably satisfactory to you.
(j) You shall have received letters on and as of the date
hereof as well as on and as of the Closing Date (in the latter case
constituting an affirmation of the statements set forth in the former,
based on limited procedures), in form and substance satisfactory to
you, from Coopers & Xxxxxxx L.L.P., independent public accountants,
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(k) You shall have received letters on and as of the date
hereof as well as on and as of the Closing Date (in the latter case
constituting an affirmation of the statements set forth in the former,
based on limited procedures), in form and substance satisfactory to
you, from Xxxxxxx, Xxxxxx & Co., independent public accountants, with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(l) At the Closing Date, the Debentures shall have been
approved for inclusion on the Nasdaq SmallCap Market, subject to
official notice of issuance, and the Common Stock issuable upon
conversion of the Debentures have been approved for inclusion in the
Nasdaq-NM, subject to official notice of issuance, and the Company
shall have furnished to you evidence of the foregoing.
(m) Prior to the Closing Date, the Company shall have
furnished to you or caused to be furnished to you such further
information, certificates and documents as you may reasonably request.
(n) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company
at or prior to the Closing Date.
(o) There shall not have been any announcement by
any "nationally recognized statistical rating
36
organization," as defined for purposes of Rule 436(g) under the Act,
nor shall any such organization have advised the Company or the
Underwriters, that (i) it is downgrading its rating assigned to any
class of securities of the Company or (ii) it is reviewing any such
rating with a view to possible downgrading, or with negative
implications, or direction not determined.
The several obligations of the Underwriters to purchase
Additional Debentures hereunder are subject to satisfaction on and as of the
Option Closing Date of the conditions set forth in paragraphs (a) through (o)
above except that the opinions called for in paragraphs (e) through (i) and the
letters referred to in (j) and (k) shall be revised to reflect the sale of the
Additional Debentures.
11. EFFECTIVE DATE OF AGREEMENT, DEFAULTS AND TERMINATION.
This Agreement shall become effective upon the later of (i) the execution of
this Agreement, (ii) the effectiveness of the Registration Statement, and (iii)
if a post-effective amendment is required to be filed pursuant to Rule 430A
under the Act, the effectiveness of such post-effective amendment.
This Agreement may be terminated at any time prior to the
Closing Date or the Option Closing Date, as the case may be, by you by written
notice to the Company if any of the following has occurred: (i) subsequent to
the date the Registration Statement is declared effective or the date of this
Agreement, any Material Adverse Change to the Company, which would, in your
opinion, make it impracticable or inadvisable to market the Securities, or to
enforce contracts for the sale of the Securities, (ii) any outbreak or
escalation of hostilities or other national or international calamity or crisis
or material adverse change in the financial markets of the United States or
elsewhere, if the effect of such outbreak, escalation, calamity, crisis or
change in such financial markets would, in your opinion, make it impracticable
or inadvisable to market the Securities or to enforce contracts for the sale of
the Securities, (iii) any suspension of trading generally in securities on the
NYSE, the American Stock Exchange or the Nasdaq NM or limitation on prices for
securities on any such exchange or system, (iv) the delisting of the Common
Stock from the Nasdaq NM (v) any declaration of a general banking moratorium by
either Federal or New York state authorities, (vi) the enactment, publication,
decree or other promulgation of any Federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
would have
37
a Material Adverse Effect, (vii) the taking of any action by any Federal, state
or local government or agency in respect of its monetary or fiscal affairs that
in your opinion has a material adverse effect on the financial markets in the
United States, and would, in your opinion, make it impracticable or inadvisable
to market the Securities or (viii) the Debentures shall have been downgraded or
placed on any "watch list" for possible downgrading by any nationally recognized
statistical rating organization.
If on the Closing Date or on the Option Closing Date, as the
case may be, any of the Underwriters shall fail or refuse to purchase the Firm
Debentures or the Additional Debentures, as the case may be, which it has agreed
to purchase hereunder on such date, and the aggregate principal amount of such
Firm Debentures or Additional Debentures, as the case may be, that such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed or
refused to purchase does not exceed 10% of the total principal amount of such
Debentures to be purchased on such date by all Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the amount of
Firm Debentures set forth opposite its name in Schedule I hereto bears to the
aggregate principal amount of Firm Debentures which all the non-defaulting
Underwriters, as the case may be, have agreed to purchase, or in such other
proportion as you (at your option) may specify, to purchase the Firm Debentures
or Additional Debentures that such defaulting Underwriter or Underwriters, as
the case may be, agreed but failed or refused to purchase on such date; PROVIDED
that in no event shall the aggregate principal amount of Firm Debentures or
Additional Debentures, as the case may be, that any Underwriter has agreed to
purchase pursuant to Section 2 hereof be increased pursuant to this Section 11
by an amount in excess of one-ninth of such principal amount of Firm Debentures
or Additional Debentures without the written consent of such Underwriter. If, on
the Closing Date or on the Option Closing Date, as the case may be, any of the
Underwriters shall fail or refuse to purchase the Firm Debentures or Additional
Debentures, as the case may be, and the total principal amount of Firm
Debentures or Additional Debentures with respect to which such default occurs
exceeds 10% of the total amount of Debentures to be purchased on such date by
all Underwriters and arrangements satisfactory to you and the Company for the
purchase of such Debentures are not made within 48 hours after such default,
this Agreement shall terminate without liability on the part of the
non-defaulting Underwriters and the Company, except as otherwise provided in
this Section 11. In any such case that does not result in
38
termination of this Agreement, either you or the Company may postpone the
Closing Date or the Option Closing Date, as the case may be, for not longer than
seven (7) days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve a defaulting
Underwriter from liability in respect of any default of any such Underwriter
under this Agreement.
The indemnity and contribution provisions and the other
agreements, representations and warranties set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Debentures, regardless of (i) any investigation,
or statement as to the results thereof, made by or on behalf of any of the
Underwriters or by or on behalf of the Company or the officers or directors of
the Company or any controlling person of the Company, (ii) acceptance of the
Debentures and payment for them hereunder and (iii) termination of this
Agreement.
If this Agreement shall be terminated by the Underwriters
pursuant to clause (i) or (viii) of the second paragraph of this Section 11 as a
result of any act or omission of the Company or because of the failure or
refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, the Company agrees to reimburse you for all
reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of counsel) incurred by you. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it agrees to
pay pursuant to Section 7 hereof.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Subsidiaries, the Underwriters, any indemnified party referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The terms "successors and assigns" shall not include a
purchaser of any of the Securities from any of the several Underwriters merely
because of such purchase.
12. MISCELLANEOUS. Notices given pursuant to any
provision of this Agreement shall be addressed as follows:
(a) if to the Company, to it at 0000 Xxxx Xxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxxx X.
39
Xxxxxxx, with a copy to Xxxxx & Xxxxx, L.L.P., at 0000 Xxx Xxxxx Xxxxx, Xxxxxxx,
Xxxxx 00000, Attention: X. Xxxxxxx Xxxxxx, Esq., (b) if to any Underwriter, to
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Syndicate Department, and, in each case, with a copy to
Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000-0000, Attention: Xxxxxx X. Xxxxxxx, Esq., or in any case to such other
address as the person to be notified may have requested in writing.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOV-
ERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW
YORK.
40
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument. Please confirm that the
foregoing correctly sets forth the agreement among the Company and you.
Very truly yours,
PRIDE PETROLEUM SERVICES, INC.
By:
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
Date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX X. XXXXX & CO. INC.
XXXXXX XXXXXX & COMPANY, INC.
By: XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
Name: _________________________
Title: ________________________
41
SCHEDULE I
PRINCIPAL
AMOUNT
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation $
Xxxxxx X. Xxxxx & Co. Inc.
Xxxxxx Xxxxxx & Company, Inc.
Total $60,000,000
42
