Exhibit 10.2
EXECUTION VERSION
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FIRST AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
AMONG
PRIDE INTERNATIONAL, INC.
FIRST RESERVE FUND VII, L.P.
AND
FIRST RESERVE FUND VIII, L.P.
MARCH 31, 2000
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FIRST AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
This First Amended and Restated Shareholders Agreement (this "Agreement")
is entered into as of the 31st day of March, 2000 by and among Pride
International, Inc., a Louisiana corporation (the "Company"), First Reserve Fund
VII, L.P., a Delaware limited partnership ("First Reserve VII"), and First
Reserve Fund VIII, L.P., a Delaware limited partnership ("First Reserve
VIII")(collectively, "First Reserve").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Securities Purchase Agreement entered
into by and between First Reserve VII and the Company dated as of May 5, 1999,
as amended (as so amended, the "Purchase Agreement"), First Reserve VII received
upon consummation of the transactions contemplated by the Purchase Agreement,
shares of Common Stock, no par value, of the Company;
WHEREAS, pursuant to that certain Securities Purchase Agreement entered
into by and among First Reserve VIII, the Company and Twin Oaks Financial Ltd.
dated as of March 31, 2000 (the "Second Purchase Agreement"), First Reserve VIII
received upon consummation of the transactions contemplated thereby additional
shares of Common Stock (the shares of Common Stock acquired pursuant to the
Purchase Agreement together with the shares of Common Stock acquired pursuant to
the Second Purchase Agreement are collectively referred to herein as the "Common
Stock"); and
WHEREAS, the parties hereto desire to reflect herein the agreements
relating to representation of First Reserve on the Board of the Company
described in Section 5.7 of the Purchase Agreement and to set forth certain
additional agreements among them relating to the First Reserve Group's (as
defined below) acquisition and ownership of Company Securities.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
ARTICLE 1
DEFINED TERMS
Section 1.1 Defined Terms. The following capitalized terms when used in
this Agreement shall have the following meanings:
"Affiliate" shall have the respective meanings assigned thereto in Rule 405
as presently promulgated under the Securities Act.
"Amethyst Agreement" means the Put and Exchange Agreement dated September
14, 1999 between the Company and First Reserve.
"beneficial ownership" and "group" shall have the respective meanings
assigned thereto in Rules 13d-3 and 13d-5 as presently promulgated under the
Exchange Act.
"Board" means the Board of Directors of the Company.
"Common Stock" has the meaning assigned in the Recitals to this Agreement.
"Company Securities" means, collectively, the Common Stock and any class or
series of the Company's preferred stock, and any other securities, warrants or
options or rights of any nature (whether or not issued by the Company) that are
convertible into, exchangeable for, or exercisable for the purchase of, or
otherwise give the holder thereof any rights in respect of Common Stock, or any
class or series of Company preferred stock that is entitled to vote generally
for the election of directors or otherwise.
"Director" means any member of the Board.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"First Reserve Group" means, collectively, First Reserve and its
Affiliates; provided, however, that a Person shall not be deemed a member of the
First Reserve Group if the only reason that such Person would be deemed an
Affiliate of First Reserve is because it is (a) a limited partner of First
Reserve, (b) an operating company in which First Reserve (and/or any other fund
or funds similar to First Reserve that is controlled by, controlling or under
common control with First Reserve) has an investment, but in which First Reserve
and such other funds do not, in the aggregate (i) have at least a majority of
the voting power (defined in a manner consistent with the definition of Voting
Power set forth herein with respect to the Company) of the securities of such
operating company, or (ii) the contractual right to designate at least a
majority of the members of the board of directors (or similar governing body) of
such operating company, or (c) an Affiliate of an operating company described in
clause (b) who is not otherwise an Affiliate of the First Reserve Group.
"Own Company Securities" means from and after the first date upon which the
aggregate amount invested by the First Reserve Group in the Company equals or
exceeds $50 million (regardless of whether, as a result of share repurchases,
dividends or otherwise, the First Reserve Group's investment in the Company
subsequently becomes less than $50 million); provided, however, the First
Reserve Group shall not be deemed to "Own Company Securities" after the date
(after such date on which the First Reserve Group is first deemed to Own Company
Securities) that its aggregate direct or indirect beneficial ownership of
capital stock of the Company constitutes or would be convertible into or
exchangeable for less than 5% of the then outstanding shares of Common Stock.
"Person" means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture or other entity of whatever nature.
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"Purchase Agreement" shall have the meaning assigned in the Recitals to
this Agreement.
"Purchase Agreements" means, when the plural is used, the Purchase
Agreement and the Second Purchase Agreement, collectively.
"Registration Rights Agreement" means the provisions of Article 5 hereof,
as amended, modified or supplemented from time to time.
"Second Purchase Agreement" shall have the meaning assigned in the Recitals
to this Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Termination Date"means April 1, 2006.
"Voting Power" means, at, any measurement date, the total number of votes
that could have been cast in an election of directors of the Company had a
meeting of the stockholders of the Company been duly held based upon a record
date as of the measurement date if all Company Securities then outstanding and
entitled to vote at such meeting were present and voted to the fullest extent
possible at such meeting.
Section 1.2 Other Definitions. Definitions applicable to the
Registration Rights Agreement provisions of this Agreement are found in
Article 5 hereof.
Section 1.3 Construction. Whenever the context requires, the gender of
all words used in this Agreement includes the masculine, feminine, and neuter,
and the singular shall include the plural, and vice versa. Except as specified
otherwise, all references to Articles and Sections refer to articles and
sections of this Agreement, and all references to exhibits are to Exhibits
attached to this Agreement, each of which is made a part of this Agreement for
all purposes. The word "including" shall mean "including, without limitation"
unless the context otherwise requires.
ARTICLE 2
BOARD OF DIRECTORS; VOTING
Section 2.1 Election of Directors. (a) For so long as First Reserve or
any of the First Reserve Group collectively Own Company Securities, First
Reserve shall have the right (i) to nominate one person for election to the
Board; provided, however, that the person nominated shall be a managing director
or other higher official of First Reserve Corporation or otherwise be reasonably
acceptable to the Company, and (ii) (A) to receive all notices, reports and
other communications sent to Directors at the same time they are transmitted to
Directors, and to receive reasonable notice of and to have one representative
attend any meeting of the Company's Board,
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(B) to consult with and advise members of senior management of the Company, and
(C) upon reasonable notice, to have access to the books and records of the
Company. If at any time more than one member of the First Reserve Group shall be
the owner of Company Securities, First Reserve shall have the right set forth in
subparagraph (i) of this Section 2.1(a) and may delegate (with notice to the
Company) any of the rights set forth in subparagraph (ii) of this Section 2.1(a)
to the extent deemed advisable by First Reserve in order to comply with laws and
regulations applicable to the First Reserve Group and the members thereof. First
Reserve hereby designates ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as its initial nominee for
election to the Company's Board.
(b) The Company agrees with First Reserve that the Company will take all
steps necessary to increase the authorized number of members of the Board by one
and to have the person initially designated by First Reserve appointed to the
Company's Board of Directors on the Closing Date (as such term is defined in the
Purchase Agreement). At each subsequent election of directors at which the term
of the nominee of First Reserve as a director of the Company expires, the
Company will nominate the designee of First Reserve for election to the
Company's Board for the succeeding term for which Directors are elected, will
recommend his or her election to the Company's stockholders and otherwise will
use its reasonable best efforts to cause the Company's stockholders to elect the
designee of First Reserve to the Company's Board. The Company shall use its
reasonable best efforts to solicit from its stockholders proxies voted in favor
of such nominee, and shall vote all management proxies in favor of such nominee,
except for such proxies that specifically indicate to the contrary. The rights
set forth in this Section 2.1(a) shall survive until the termination of this
Agreement as provided in Section 6.1 hereof.
(c) In the event that any Director designated pursuant to Section 2.1(a)
for any reason ceases to serve as a member of the Board during his term of
office, First Reserve shall be entitled to designate a successor Director to
fill the vacancy created thereby on the terms and subject to the conditions of
this Section 2.1. If and to the extent that the remaining members of the Board
are entitled to fill vacancies on the Board, upon the occurrence of any vacancy,
the Board will promptly take any actions necessary to fill such vacancies in
accordance with the foregoing provision in order to cause the election of the
nominee of First Reserve.
Section 2.2 No Inconsistent Company Actions. The Company hereby agrees
not to take any action inconsistent with the provisions of Section 2.1.
ARTICLE 3
ACQUISITION AND SALE OF COMPANY SECURITIES
Section 3.1. Company Securities. First Reserve covenants and agrees with
the Company that, without the consent of the Company, except for the Company
Securities acquired pursuant to the Purchase Agreements or any similar agreement
to which the Company and First Reserve (or its Affiliates or designees) are
parties, any Company Securities acquired with the consent of the Company and any
Company Securities issued pursuant to a stock split, stock dividend or
recapitalization with respect to such Company Securities, no member of the First
Reserve Group
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shall, directly or indirectly, acquire any Company Securities, if the effect of
such acquisition, agreement or other action would be to increase the aggregate
beneficial ownership of Company Securities by the First Reserve Group by an
amount equal to 3% or more of either the Voting Power or the number of
outstanding shares of any class or series of Company Securities.
Section 3.2 Distribution of Company Securities. First Reserve covenants
that it shall not, and that it shall cause each other member of the First
Reserve Group that it controls not to, directly or indirectly, sell, transfer
beneficial ownership of, pledge, hypothecate or otherwise dispose of any Company
Securities, except by conversion, exchange or exercise of such Company
Securities pursuant to their terms in a manner not otherwise in violation of
Section 3.1 or pursuant to:
(a) a bona fide pledge of or the granting of a security interest or
any other lien or encumbrance in such Company Securities to a lender that is not
a member of the First Reserve Group to secure a bona fide loan for money
borrowed made to one or more members of the First Reserve Group, the foreclosure
of such pledge or security interest or any other lien or encumbrance that may be
placed involuntarily upon any Company Securities, or the subsequent sale or
other disposition of such Company Securities by such lender or its agent;
(b) a transfer, assignment, sale or disposition of such Company
Securities to another member of the First Reserve Group that has signed this
Agreement;
(c) a distribution of Company Securities to any partner of First
Reserve; provided that any distributee that is a member of the First Reserve
Group has signed this Agreement; and provided, further that any arrangements
coordinated or initiated by or on behalf of First Reserve to assist its limited
partners in the sale of Company Securities distributed to them must comply with
the provisions of this Section 3.2;
(d) sales in public offerings registered under the Securities Act;
(e) sales effected in compliance with the provisions of Rule 144 under
the Securities Act;
(f) other privately negotiated sales of Company Securities;
(g) upon consummation of or otherwise in connection with a business
combination or similar transaction involving the Company that is approved by the
Board;
(h) sales in a tender offer open to all holders of Company Securities;
or
(i) put rights and call rights granted in the Second Purchase
Agreement.
Notwithstanding anything to the contrary in this Section 3.2, in effecting any
sale, transfer of any beneficial interest in or other disposition of Company
Securities pursuant to Sections 3.2 (c), (d) and
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(f), above, the members of the First Reserve Group selling, transferring or
disposing such Company Securities shall, unless the Company consents otherwise,
use their reasonable best efforts to refrain from knowingly selling,
transferring or disposing of such number of Company Securities as represent
either the right to acquire or ownership of 5% or more of the Voting Power to
any one Person or group of Persons (other than Twin Oaks, Inc.).
Section 3.3. Proxy Solicitations. First Reserve agrees that as a
stockholder, the First Reserve Group shall vote or cause to be voted all Company
Securities of which any member of the First Reserve Group is the beneficial
owner with respect to each matter submitted to the Company's stockholders
providing for, involving, expected to facilitate or that could reasonably be
expected to result in a business combination or other change in control of the
Company that has not been approved by the Board (including without limitation
the election or removal of one or more Company directors or one or more nominees
for director proposed by the Board), either (a) in the manner recommended by the
Board, or (b) proportionately with all other holders of Company Securities
voting with respect to such matter (provided, that the First Reserve Group shall
at all times retain the power to vote for the election of the nominee of First
Reserve to the Company's Board). First Reserve hereby agrees that it and each
member of the First Reserve Group that it controls shall not take any action, or
solicit proxies in any fashion, inconsistent with the provisions of this
Section 3.3.
Section 3.4. Groups. First Reserve covenants that it shall not, and that
no other member of the First Reserve Group that it controls shall, join a
partnership, limited partnership, syndicate or other group, or otherwise act in
concert with any other Person, for the purpose of acquiring, holding, voting or
disposing of any Company Securities, other than the First Reserve Group itself.
Section 3.5. Limitation on Covenants. Notwithstanding any provision to
the contrary in this Agreement, during any period that any person designated by
First Reserve to serve as a Director in accordance with the provisions of
Section 2.1(a) is not serving as a Director as a result of the failure of the
Company or the Board to comply with the terms of this Agreement, or if any such
designee is not elected by the stockholders (and Section 2.1(a) and Section 2.2
are complied with), then the covenants set forth in this Article 3 shall cease
to be effective during such period; provided, however, that if a person
designated by First Reserve ceases to be a Director by reason of death or
resignation, then the provisions of this Section 3.5 shall not apply if the
Board appoints First Reserve's designated replacement to fill any such vacancy
within 15 business days after the Company receives notice of such designation.
The provisions of this Section 3.5 shall be in addition to any other remedies
that First Reserve may have in connection with a breach of the provisions of
Article 2 hereof.
ARTICLE 4
LEGEND AND STOP TRANSFER ORDER
Section 4.1 Legend and Stop Transfer Order. To assist in effectuating
the provisions of this Agreement, First Reserve hereby consents: (a) to the
placement, on certificates issued with
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respect to the shares of Common Stock issued to it pursuant to the Purchase
Agreements or otherwise promptly after any Company Securities become subject to
the provisions of this Agreement, of the following legend on all certificates
representing ownership of Company Securities owned of record by any member of
the First Reserve Group or by any Person where a member of the First Reserve
Group is the beneficial owner thereof, until such shares are sold, transferred
or disposed in a manner permitted hereby to a Person who is not then a member of
the First Reserve Group:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF
AN AGREEMENT AMONG, INTER ALIA, PRIDE INTERNATIONAL, INC. AND FIRST RESERVE
FUND VIII, L.P., AND MAY NOT BE VOTED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE THEREWITH.
COPIES OF THE AGREEMENT ARE ON FILE AT THE OFFICE OF THE CORPORATE
SECRETARY OF PRIDE INTERNATIONAL, INC.
; and (b) to the entry of stop transfer orders with the transfer agent or agents
of Company Securities against the transfer of Company Securities except in
compliance with the requirements of this Agreement, or if the Company acts as
its own transfer agent with respect to any Company Securities, to the refusal by
the Company to transfer any such securities except in compliance with the
requirements of this Agreement. The Company agrees to remove promptly all
legends and stop transfer orders with respect to the transfer of Company
Securities being made to a Person who is not then a member of the First Reserve
Group in compliance with the provisions of this Agreement.
ARTICLE 5
REGISTRATION RIGHTS AGREEMENT
Section 5.1. Defined Terms. The following capitalized terms when used in
this Registration Rights Agreement shall have the following meanings:
"Amethyst Registrable Securities" means the shares of Common Stock that (i)
are Registrable Securities and (ii) are received by a member of the First
Reserve Group upon exchange of the Exchangeable Stock pursuant to Section 5.10
or 5.11 of the Purchase Agreement or would be received by a member of the First
Reserve Group upon exercise of its right to exchange the Exchangeable Stock
pursuant to Section 5.10 of the Purchase Agreement.
"Demand Registration" means a demand registration as defined in Section
5.2(a) hereof.
"Existing Holders" means the holders of registerable securities in
accordance with the terms of the Existing Registration Rights Agreements.
"Existing Registration Rights Agreements" means that certain (i)
Registration Rights Agreement, dated as of September 1, 1993, by and among the
Company and ▇▇▇▇ ▇. ▇▇▇▇▇, (ii)
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Registration Rights Agreement, dated as of March 10, 1997, by and among the
Company and Ackermans & van Haaran Group and Soletanche Group, and (ii)
Registration Rights Agreement, dated as of October 1, 1998, by and among the
Company and DWC Amethyst N.V.
"Holders" means the holders of the Registrable Securities in accordance
with the terms of this Registration Rights Agreement.
"Indemnified Party" has the meaning set forth in Section 5.3(c).
"Indemnifying Party" has the meaning set forth in Section 5.3(c).
"Piggyback Registration" means a piggyback registration as defined in
Section 5.2(b) hereof.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to the
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
"Registrable Securities" means (a) all shares of Common Stock issued to
First Reserve pursuant to the Purchase Agreements including all shares of Common
Stock which may be issued upon exchange of the Exchangeable Stock or otherwise
pursuant to the Amethyst Agreement and (b) any other securities issued by the
Company after the date hereof with respect to such shares of Common Stock by
means of exchange, reclassification, dividend, distribution, split up,
combination, subdivision, recapitalization, merger, spin-off, reorganization or
otherwise; provided, however, that as to any Registrable Securities, such
securities shall cease to constitute Registrable Securities for the purposes of
this Registration Rights Agreement if and when: (i) a Registration Statement
with respect to the sale of such securities shall have been declared effective
by the SEC and such securities shall have been sold pursuant thereto; (ii) such
securities shall have been sold in compliance with of all applicable resale
provisions of Rule 144 under the Securities Act; (iii) such securities may be
sold by the Holder thereof in reliance upon Rule 144(k) (or any successor rule)
promulgated under the Securities Act, or (iv) such securities cease to be issued
and outstanding for any reason.
"Registration Statement" means any registration statement filed by the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Registration Rights Agreement, including the Prospectus included
therein, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
"SEC" means the Securities and Exchange Commission, or any successor agency
thereto.
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"Securities Act" means the Securities Act of 1933, as amended.
Section 5.2. Registration Rights
(a) Demand Registration. (i) At any time after June 21, 2000, First
Reserve may at any time and from time to time make a written request for
registration under the Securities Act in a firm commitment underwritten public
offering of Registrable Securities owned by them having a good faith estimated
public offering price of at least $20 million (a "Demand Registration");
provided that the Company shall not be obligated to effect more than three
Demand Registrations in any 12-month period or more than an aggregate of three
Demand Registrations pursuant to this Section 5.2(a). Such request will specify
the number of shares of Registrable Securities proposed to be sold. Within five
days of such request, the Company shall give written notice of such request to
all other Holders of Registrable Securities and shall include in the
registration in respect of which notice has been given all Registrable
Securities with respect to which the Company has received written requests from
Holders for inclusion therein within ten days after the Company's notice
regarding such registration has been given as provided herein. If Registrable
Securities of other Holders are included in such registration, the Holder or
Holders requesting such Demand Registration may reduce the number of shares of
Registrable Securities initially specified to be included in such registration
in its or their sole discretion; provided, that Registrable Securities having a
good faith estimated public offering price of at least $20 million are included
in such registration. A registration will not count as a Demand Registration
until the Registration Statement filed pursuant to such registration has been
declared effective by the SEC and remains effective for the period specified in
Section 5.2(d)(i).
(ii) The Holder or Holders requesting the Demand Registration shall
select the managing underwriters (including the book running lead managing
underwriters) and any additional investment bankers and managers to be used in
connection with the offering (unless a member of the First Reserve Group is
included among the Holders selling pursuant to such registration, in which case
First Reserve shall select such underwriters, investment bankers and managers);
provided that the lead managing underwriter must be reasonably satisfactory to
the Company.
(iii) Neither the Company nor any of its security holders (other than
the Holders of Registrable Securities in such capacity) shall be entitled to
include any of the Company's securities in a Registration Statement initiated as
a Demand Registration under this Section 5.2(a) without the consent of First
Reserve.
(iv) In addition to the Demand Registration rights enumerated above,
with respect to the Amethyst Registrable Securities at any time after (X) July
1, 2002 or (Y) such earlier date which is 60 days prior to the date on which the
Exchangeable Stock shall have been exchanged for Common Stock pursuant to
Section 5.10 or 5.11 of the Purchase Agreement, First Reserve may make a request
in writing that the Company file a registration statement under the Securities
Act to register under the Securities Act all Amethyst Registrable Securities
(whether or not such Amethyst
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Registrable Securities are then issued and outstanding) for resale on a delayed
or continuous basis for a period of one year in an amount equal to the lesser of
(A) all such Amethyst Registrable Securities, or (B) the number of Amethyst
Registrable Securities that could be sold pursuant to the provisions of Rule 144
by an affiliate of the Company (assuming such Amethyst Registrable Securities
were not restricted securities within the meaning of Rule 144) during such one-
year period. Such a request (and the related registration) shall be in addition
to the Demand Registrations provided for in Section 5.2(a)(i) of this Agreement.
(b) Piggyback Registration. If the Company proposes to file a
registration statement under the Securities Act with respect to an offering of
Common Stock (i) for the Company's own account (other than a registration
statement on Form S-4 or S-8 (or any substitute form that may be adopted by the
SEC for transactions traditionally registered on Form S-4 or S-8)) or (ii) for
the account of any of its holders of Common Stock, including without limitation,
the Existing Holders (other than pursuant to a Demand Registration under Section
5.2(a)), then the Company shall give written notice of such proposed filing to
First Reserve as soon as practicable (but in no event later than the earlier to
occur of (i) the tenth day following receipt by the Company of notice of
exercise of other demand registration rights and (ii) 15 days before the filing
date), and such notice shall offer First Reserve the opportunity to register
such number of shares of Registrable Securities as First Reserve may request
within 10 days after receipt by First Reserve of the Company's notice on the
same terms and conditions as the Company's or such holder's Common Stock (a
"Piggyback Registration"). First Reserve will be permitted to withdraw all or
any part of its Registrable Securities from a Piggyback Registration at any time
prior to the date the Registration Statement filed pursuant to such Piggyback
Registration becomes effective with the SEC.
(c) Reduction of Offering. Notwithstanding anything contained herein,
if the Piggyback Registration is an underwritten offering and the lead managing
underwriter of such offering delivers a written opinion to the Company that the
size of the offering that the Company, First Reserve, the Existing Holders and
any other Persons whose securities are proposed to be included in such offering
is such that the offering or the offering price would be materially and
adversely affected, the Company will include in such Piggyback Registration in
the following order of priority (i) first, all of the securities proposed to be
registered by the Company (if the offering is for the account of the Company),
or, if the offering is for the account of the Existing Holders (or any of them),
all of the securities proposed to be registered by such Existing Holders, (ii)
second, all of the Registrable Securities requested by First Reserve, and (iii)
thereafter, the securities proposed to be registered by any other Persons.
(d) Filings; Information. Whenever First Reserve requests that any
Registrable Securities be registered pursuant to Section 5.2(a) hereof, the
Company will use its reasonable best efforts to effect the registration of such
Registrable Securities and to permit the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, as promptly as is
practicable, and in connection with any such request:
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(i) the Company will as expeditiously as possible, but in no event
later than 30 days after receipt of a request to file a registration statement
with respect to such Registrable Securities, prepare and file with the SEC a
Registration Statement on any form for which the Company then qualifies and
which counsel for the Company shall deem appropriate and available for the sale
of the Registrable Securities to be registered thereunder in accordance with the
intended method of distribution thereof and which is reasonably satisfactory to
First Reserve, and use its reasonable best efforts to cause such Registration
Statement to become and remain effective for a period of not less than 90 days
(or such shorter period which will terminate when all Registrable Securities
covered by such Registration Statement have been sold); provided that if at the
time the Company receives a request to file a Registration Statement with
respect to Registrable Securities or thereafter, the Company is engaged in
confidential negotiations or other confidential business activities, disclosure
of which would be required in such Registration Statement or a related
prospectus or supplement thereto (but would not be required if such Registration
Statement were not filed) and the board of directors of the Company determines
in good faith that such disclosure would be materially detrimental to the
Company and its stockholders, the Company shall have a period of not more than
120 days (less the number of days during the previous 12 months that the use of
a Prospectus was suspended pursuant to Section 5.2(d)(vi) and/or this Section
5.2(d)(i)) within which to file such registration statement measured from the
date of the Company's receipt of First Reserve's request for registration in
accordance with Section 5.2(a) hereof or to file any supplement required by
Section 5.2(d)(vi). The filing of a registration statement may only be deferred
once for any potential transaction or event or related transactions or events
that could arise as a result of negotiations or other activities and any
registration statement whose filing has been deferred as a result shall be filed
forthwith if the negotiations or other activities are disclosed or terminated.
In order to defer the filing of a registration statement pursuant to this
Section 5.2(d)(i), the Company shall promptly, upon determining to seek such
deferral, deliver to First Reserve a certificate signed by the President or
Chief Financial Officer of the Company stating that the Company is deferring
such filing pursuant to this Section 5.2(d)(i).
(ii) the Company will prepare and file with the SEC such amendments
and supplements to such Registration Statement and the Prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective for the period set forth in Section 5.2(d)(i) and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement.
(iii) the Company will, if requested, prior to filing a
Registration Statement or any amendment or supplement thereto, furnish to First
Reserve and each applicable managing underwriter, if any, copies thereof, and
thereafter furnish to First Reserve and each such underwriter, if any, such
number of copies of such Registration Statement, amendment and supplement
thereto (in each case including all exhibits thereto and documents incorporated
by reference therein) and the Prospectus included in such Registration Statement
(including each preliminary Prospectus) as First Reserve or each such
underwriter may reasonably request in order to facilitate the sale of the
Registrable Securities.
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(iv) After the filing of the Registration Statement, the Company
will promptly notify First Reserve of any stop order issued or, to the Company's
knowledge, threatened to be issued by the SEC and take all reasonable actions
required to prevent the entry of such stop order or to remove it as soon as
possible if entered.
(v) the Company will use its reasonable best efforts to qualify
the Registrable Securities for offer and sale under such other securities or
blue sky laws of such jurisdictions in the United States as First Reserve
reasonably requests; provided that the Company will not be required to (A)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph 5.2(d)(v), (B)
subject itself to taxation in any such jurisdiction or (C) consent to general
service of process in any such jurisdiction.
(vi) the Company will as promptly as is practicable notify First
Reserve, at any time when a Prospectus is required by law to be delivered in
connection with sales by an underwriter or dealer, of the occurrence of any
event requiring the preparation of a supplement or amendment to such Prospectus
so that, as thereafter delivered to the purchasers of such Registrable
Securities, such Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and promptly make available to First
Reserve and to the underwriters any such supplement or amendment. First Reserve
agrees that, upon receipt of any notice from the Company of the occurrence of
any event of the kind described in the preceding sentence, First Reserve will
forthwith discontinue the offer and sale of Registrable Securities pursuant to
the Registration Statement covering such Registrable Securities until receipt by
First Reserve and the underwriters of the copies of such supplemented or amended
Prospectus and, if so directed by the Company, First Reserve will deliver to the
Company all copies, other than permanent file copies, then in First Reserve's
possession of the most recent Prospectus covering such Registrable Securities at
the time of receipt of such notice. In the event the Company shall give such
notice, the Company shall extend the period during which such Registration
Statement shall be maintained effective as provided in Section 5.2(d)(i) by the
number of days during the period from and including the date of the giving of
such notice to the date when the Company shall make available to First Reserve
such supplemented or amended Prospectus.
(vii) the Company will enter into customary agreements
(including an underwriting agreement in customary form) and take such other
actions as are reasonably required in order to expedite or facilitate the sale
of such Registrable Securities.
(viii) the Company will furnish to First Reserve and to each
underwriter a signed counterpart, addressed to such underwriter, of an opinion
or opinions of counsel to the Company and a comfort letter or comfort letters
from the Company's independent public accountants, each in customary form and
covering such matters of the type customarily covered by opinions or comfort
letters, as the case may be, as the managing underwriter reasonably requests.
12
(ix) the Company will make generally available to its security
holders, as soon as reasonably practicable, an earnings statement covering a
period of 12 months, beginning within three months after the effective date of
the Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the SEC thereunder.
(x) the Company will use its reasonable best efforts to cause all
such Registrable Securities to be listed on each securities exchange or market
on which the Common Stock is then listed.
The Company may require First Reserve to furnish promptly in writing to the
Company such information regarding First Reserve, the plan of distribution of
the Registrable Securities and other information as the Company may from time to
time reasonably request or as may be legally required in connection with such
registration.
(e) Registration Expenses. In connection with any Demand Registration
or any Piggyback Registration, the Company shall pay the following expenses
incurred in connection with such registration: (i) filing fees with the SEC;
(ii) fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities); (iii) printing expenses; (iv)
fees and expenses incurred in connection with the listing of the Registrable
Securities; (v) fees and expenses of counsel and independent certified public
accountants for the Company and (vi) the reasonable fees and expenses of any
additional experts retained by the Company in connection with such registration.
In connection with the preparation and filing of a Registration Statement
pursuant to Section 5.2(a), the Company will also pay the reasonable fees and
expenses of a single legal counsel chosen by First Reserve. First Reserve shall
pay any underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities and any other expenses of First Reserve.
(f) Participation in Underwritten Registrations. No Person may
participate in any underwritten registered offering contemplated hereunder
unless such Person (a) agrees to sell its securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and this
Registration Rights Agreement.
(g) Holdback Agreements. First Reserve agrees not to effect any
public sale (including a sale pursuant to Rule 144 of the Securities Act) of any
Registrable Securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the 14 days prior to, and during the
120-day period beginning on, the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration in which First Reserve
participates, other than the Registrable Securities to be sold pursuant to such
registration statement.
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Section 5.3. Indemnification
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless First Reserve, its general partner, the general partner of the
general partner, and the officers and directors of such general partner, and
each Person, if any, who controls First Reserve within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses arising
out or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or prospectus relating to the
Registrable Securities or any preliminary Prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities and expenses are
caused by any untrue statement or omission or alleged untrue statement or
omission based upon information relating to First Reserve or the plan of
distribution furnished in writing to the Company by or on behalf of First
Reserve expressly for use therein; provided, that the foregoing indemnity with
respect to any preliminary Prospectus shall not inure to the benefit of First
Reserve if a copy of the most current Prospectus at the time of the delivery of
the Registrable Securities was not provided to the purchaser, the Company had
previously furnished First Reserve with a sufficient number of copies of the
current Prospectus and such current Prospectus would have cured the defect
giving rise to such loss, claim, damage or liability. The Company also agrees
to indemnify any underwriters of the Registrable Securities, their officers and
directors and each Person who controls such underwriters on substantially the
same basis as that of the indemnification of First Reserve provided in this
Section 5.3(a).
(b) Indemnification by First Reserve. First Reserve agrees to
indemnify and hold harmless the Company, its officers and directors, and each
Person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to First Reserve, but only with
reference to information relating to First Reserve or the plan of distribution
furnished in writing by or on behalf of First Reserve expressly for use in any
Registration Statement or Prospectus, or any amendment or supplement thereto, or
any preliminary Prospectus. First Reserve also agrees to indemnify and hold
harmless any underwriters of the Registrable Securities, their officers and
directors and each person who controls such underwriters on substantially the
same basis as that of the indemnification of the Company provided in this
Section 5.3(b).
(c) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to Section 5.3(a) or
Section 5.3(b), such Person (the "Indemnified Party") shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Party") in
writing and the Indemnifying Party shall have the right to assume the defense of
such proceeding and retain counsel reasonably satisfactory to such Indemnified
Party to represent such Indemnified Party and any others the Indemnifying Party
may designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees
14
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Indemnified Party
and the Indemnifying Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) at any time for all such Indemnified Parties,
and that all such fees and expenses shall be reimbursed as they are incurred.
In the case of any such separate firm for the Indemnified Parties, such firm
shall be designated in writing by the Indemnified Parties. The Indemnifying
Party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent, or if there be a final
judgment for the plaintiff, the Indemnifying Party shall indemnify and hold
harmless such Indemnified Parties from and against any loss or liability (to the
extent stated above) by reason of such settlement or judgment.
(d) Contribution. If the indemnification provided for in this
Registration Rights Agreement is unavailable to an Indemnified Party in respect
of any losses, claims, damages, liabilities or expenses referred to herein, then
each such 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 or expenses in such
proportion as is appropriate to reflect the relative fault of the Company and
First Reserve and the underwriters in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities. The
relative fault of the Company and, First Reserve and the underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and First Reserve agree that it would not be just and
equitable if contribution pursuant to this Section 5.3(d) were determined by pro
rata allocation or by any other method of allocation that 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 or liabilities 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.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
Section 5.4. Rule 144. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange Act
and that it will take such further action as First Reserve may reasonably
request to the extent required from time to time to enable First Reserve to sell
Registrable Securities without registration under the Securities Act within the
limitation of
15
the exemptions provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC. Upon the request of First Reserve, the Company will deliver
to First Reserve a written statement as to whether it has complied with such
reporting requirements.
Section 5.5. Miscellaneous.
(a) Notices. Any notice or other communication required or permitted
under this Registration Rights Agreement shall be in writing or by telex,
telephone or facsimile transmission with subsequent written confirmation, and
may be personally served or sent by United States mail and shall be deemed to
have been given upon receipt by the party notified. For purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this Section 5.5) shall be as set forth opposite each party's
name on the signature page hereof.
(b) Termination. This Registration Rights Agreement will terminate
upon the earlier of (i) the date upon which the Company and First Reserve
mutually agree in writing to terminate this Registration Rights Agreement and
(ii) the first date on which there ceases to be any Registrable Securities.
(c) Transfer of Registration Rights. The rights of Holders hereunder
may be assigned by Holders to a transferee or assignee of any Registrable
Securities provided that the Company is given written notice at the time of or
within a reasonable time after said transfer, stating the name and address of
such transferee or assignee and identifying the securities with respect to which
such registration rights are being assigned; and provided further that the
registration rights granted by the Company in Section 5.2 may only be
transferred to, and the definition of "Holders" shall only include, transferees
who meet either of the following criteria: such transferee is (i) a holder of
100,000 or more shares of the Registrable Securities before giving effect to the
transfer, (ii) a member of the First Reserve Group, or (iii) a bank, trust
company or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form. To the extent the
rights under Section 5.2(a) of this Agreement are assigned to multiple Holders,
all rights hereunder that may be exercised by the First Reserve Group may only
be exercised by one or more Holders holding 50% or more of the Registrable
Securities in the aggregate.
(d) Waivers and Amendments; Noncontractual Remedies; Preservation of
Remedies. This Registration Rights Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived, only by a
written instrument signed by the Company and the Holders of a majority of the
Registrable Securities or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising a right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any such right, power or privilege, nor any single or
partial exercise of any such right, power or privilege, preclude a further
exercise thereof or the exercise of any other such right, power or privilege.
The rights and remedies herein provided are cumulative and are not exclusive of
any rights
16
or remedies that any party may otherwise have at law or in equity. The rights
and remedies of any party based upon, arising out of or otherwise in respect of
any breach of any provision of this Registration Rights Agreement shall in no
way be limited by the fact that the act, omission, occurrence or other state of
facts upon which any claim of any such breach is based may also be the subject
matter of any other provision of this Registration Rights Agreement (or of any
other agreement between the parties) as to which there is no breach.
(e) Severability. If any provision of this Registration Rights
Agreement or the applicability of any such provision to a person or
circumstances shall be determined by any court of competent jurisdiction to be
invalid or unenforceable to any extent, the remainder of this Registration
Rights Agreement or the application of such provision to Persons or
circumstances other than those for which it is so determined to be invalid and
unenforceable, shall not be affected thereby, and each provision of this
Registration Rights Agreement shall be valid and shall be enforced to the
fullest extent permitted by law. To the extent permitted by applicable law each
party hereto hereby waives any provision or provisions of law which would
otherwise render any provision of this Registration Rights Agreement invalid,
illegal or unenforceable in any respect.
(f) Successors and Assigns. Subject to Section 5.5(c), this
Registration Rights Agreement shall be binding upon and inure to the benefit of
and be enforceable by the successors and assigns of the parties hereto.
(g) Other Registration Rights Agreements. Without the prior written
consent of First Reserve, the Company will neither enter into any new
registration rights agreements that conflict with the terms of this Registration
Rights Agreement nor permit the exercise of any other registration rights in a
manner that conflicts with the terms of the registration rights granted
hereunder.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Termination. Except as provided in Section 5.5(b) as to the
Registration Rights Agreement (which shall be governed by such Section 5.5(b))
and this Section 6.1, the respective covenants and agreements of First Reserve
and the Company contained in this Agreement will continue in full force and
effect until the earliest to occur of either of the following: (i) the
Termination Date, or (ii) the sale or other disposition in accordance with this
Agreement by the First Reserve Group of Company Securities if after and giving
effect to such sale or other disposition, the First Reserve Group beneficially
owns in the aggregate Company Securities representing less than 5% of the Voting
Power (including all exchangeable and convertible Company Securities on an "as-
if" exchanged or converted basis). Upon any termination of this Agreement
pursuant to this Section 6.1 all of the obligations of the Company and First
Reserve hereunder (other than the Registration Rights Agreement) shall
terminate.
17
Section 6.2 Notices. Any notice or other communication required or
permitted hereunder shall be in writing or by telex, telephone or facsimile
transmission with subsequent written confirmation, and may be personally served
or sent by United States mail and shall be deemed to have been given upon
receipt by the party notified. For purposes hereof, the addresses of the parties
hereto (until notice of a change thereof is delivered as provided in this
Section 6.2) shall be as set forth opposite each party's name on the signature
page hereof.
Section 6.3 Waivers and Amendments; Noncontractual Remedies;
Preservation of Remedies. Other than with respect to the provisions of the
Registration Rights Agreement, which shall be governed by Section 5.5(d), this
Agreement may be amended, superseded, canceled, renewed or extended, and the
terms hereof may be waived, only by a written instrument signed by the Company
and the holders of a majority of the Company Securities held by the First
Reserve Group or, in the case of a waiver, by the party waiving compliance. No
delay on the part of any party in exercising a right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any such right, power or privilege, nor any single or partial
exercise of any such right, power or privilege, preclude a further exercise
thereof or the exercise of any other such right, power or privilege. The rights
and remedies herein provided are cumulative and are not exclusive of any rights
or remedies that any party may otherwise have at law or in equity. The rights
and remedies of any party based upon, arising out of or otherwise in respect of
any breach of any provision of this Agreement (other than the Registration
Rights Agreement, which shall be governed by Section 5.5(d)) shall in no way be
limited by the fact that the act, omission, occurrence or other state of facts
upon which any claim of any such breach is based may also be the subject matter
of any other provision of this Agreement (or of any other agreement between the
parties) as to which there is no breach.
Section 6.4 Severability. If any provision of this Agreement or the
applicability of any such provision to a person or circumstances shall be
determined by any court of competent jurisdiction to be invalid or unenforceable
to any extent, the remainder of this Agreement or the application of such
provision to persons or circumstances other than those for which it is so
determined to be invalid and unenforceable, shall not be affected thereby, and
each provision of this Agreement shall be valid and shall be enforced to the
fullest extent permitted by law. To the extent permitted by applicable law each
party hereto hereby waives any provision or provisions of law which would
otherwise render any provision of this Agreement invalid, illegal or
unenforceable in any respect.
Section 6.5 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts and when so executed shall constitute one
Agreement, notwithstanding that all parties are not signatories to the same
counterpart.
Section 6.6 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such state, without giving
effect to the conflict of laws principles of such state.
18
Section 6.7 Successors and Assigns. Subject to the transfer
restrictions contained in this Agreement, this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the successors and assigns of
the parties hereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
19
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
Address: PRIDE INTERNATIONAL, INC.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ----------------------------------
Attn: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ President and Chief Executive
Officer
Address: FIRST RESERVE FUND VIII, L.P.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇ By: First Reserve GP VIII, L.P., its
Fax: ▇▇▇-▇▇▇-▇▇▇▇ General Partner
By: First Reserve Corporation, its
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
Address: FIRST RESERVE FUND VII, L.P.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇ By: First Reserve GP VII, L.P., its
Fax: ▇▇▇-▇▇▇-▇▇▇▇ General Partner
By: First Reserve Corporation, its
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
