[FORM OF UNDERWRITING AGREEMENT]
Pride Petroleum Services, Inc.
___% Convertible Subordinated Debentures due _________, 2006
UNDERWRITING AGREEMENT
_____________, 1996
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX X. XXXXX & CO. INC.
XXXXXX XXXXXX & COMPANY, INC.
c/x Xxxxxxxxx, Lufkin & 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
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Debentures are convertible are herein collectively called the
"SECURITIES."
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. 33-_____),
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 in the United States, in- cluding
all documents incorporated or deemed to be incor- porated 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 a purchase price equal to the percentage of the principal amount
thereof set forth on the cover page of the Prospectus under the heading
"Proceeds to the Company" (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,
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severally and not jointly, agrees to purchase the principal amount of Additional
Debentures (subject to such adjustments to eliminate partial Debentures as
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation ("DLJ") may determine) that
bears the same proportion to the total principal amount of 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, without the prior written consent of the Underwriters,
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 Under- writers of and
payment for the Firm Debentures shall be made at 10:00 A.M., New York City time,
on the third business day (such time and date being referred to as the "CLOSING
DATE") following the initial public offering of the Firm Debentures
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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.
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
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such post-effective amendment to become effective at the earliest
possible time. The Company will comply fully and in a timely manner
with the applicable provisions of Rule 424 and Rule 430A under the Act.
(b) It will advise you promptly and, if requested by you,
confirm such advice in writing, (i) 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
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as first filed with the Commission and of each amendment to it,
including all exhibits filed therewith or incorporated by reference
therein, and will furnish to you and each Underwriter designated by you
such number of conformed copies of the Registration Statement as so
filed and of each amendment to it, without exhibits, as you may
reasonably request.
(d) It will not file any amendment to the Registration
Statement, 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
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Act, and will furnish to each Underwriter and to such dealers as you
shall specify without charge such number of copies thereof as such
Underwriter and such dealers may reasonably request.
(g) Prior to any public offering of the 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 mail and make generally available to its security
holders as soon as reasonably practicable a consolidated earnings
statement covering a period of at least twelve months beginning after
the "effective date" (as defined in Rule 158 under the Act) of the
Registration Statement (but in no event commencing later than 90 days
after such date) which shall satisfy the provisions of Section 11(a) of
the Act and Rule 158 thereunder and shall advise you in writing when
such statement has been so mailed and made available.
(i) It will timely complete all required filings and otherwise
comply fully in a timely manner with all provisions of the Securities
Exchange Act of 1934, as amended, including the rules and regulations
thereunder (collectively, the "Exchange Act"), to cause the Securities
to be registered pursuant thereto.
(j) During the period of five years after the date of this
Agreement, it will (i) mail as soon as reasonably practicable after the
end of each fiscal year to the record holders of the Securities and of
its Common Stock a financial report of the Company and its
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subsidiaries on a consolidated basis (and a similar financial report of
all unconsolidated subsidiaries, if any), all such financial reports to
include a consolidated balance sheet, a consolidated statement of
operations, a consolidated statement of cash flows and a consolidated
statement of shareholders' equity as of the end of and for such fiscal
year, together with comparable information as of the end of and for the
preceding year, certified by independent certified public accountants,
and (ii) mail as soon as practicable after the end of each quarterly
period (except for the last quarterly period of each fiscal year) to
such holders, a consolidated balance sheet, a consolidated statement of
operations and a consolidated statement of cash flows (and similar
financial reports of all unconsolidated subsidiaries, if any) as of the
end of and for such period, and for the period from the beginning of
such year to the close of such quarterly period, together with
comparable information for the corresponding periods of the preceding
year.
(k) During the period referred to in paragraph (j), 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.
(l) It will use the proceeds from the sale of the Debentures
in the manner described in the Prospectus under the caption "Use of
Proceeds."
(m) 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 will use its best
efforts to maintain such inclusion for a period of five years after the
effective date of the Registration Statement.
(n) It will not voluntarily claim, and will resist any
attempts to claim, the benefits of any usury laws against the holders
of the Debentures.
(o) It has not taken and will not take, directly or
indirectly, any action designed, or that might
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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.
(p) 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 printing (including word processing), 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), (ii) the registration with the Commission and 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 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), (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
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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
statements in or omissions from the Registration Statement or the
Prospectus (or any supplement or amendment to any of them) based upon
and conforming with information relating to any Underwriter furnished
to the Company in writing by or on behalf of any Underwriter through
DLJ expressly for use therein. The Company acknowledges for all
purposes under this Agreement (including this paragraph and Section 9
hereof) that the statements set forth in the first (including the
table), 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
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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.
(iv) The only entities in which the Company has an
equity or other ownership interest are [list subsidiaries]
(collectively, the "SUBSIDIARIES"). Each of the Company and its
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 on the Company and
its Subsidiaries, taken as a whole.
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(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 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 there are no outstanding (a)
securities or obligations of the Company convertible into or
exchangeable for any capital stock of the Company (b) warrants, rights
or options to subscribe for or purchase from the Company any such
capital stock or any such convertible or exchangeable securities or
obligations, or (c) obligations of the Company to issue any shares of
capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options; all offers and
sales of the Company's capital stock by the Company prior to the date
hereof were at all relevant times duly registered under the Act or
exempt from the registration requirements of the Act and were duly
registered or the subject of an available exemption from the
registration requirements of the applicable state securities or blue
sky laws; the 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;
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
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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, except to the extent
that a waiver of rights under any usury laws may be unenforceable and
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 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, except to the extent that a
waiver of rights under any usury laws may be unenforceable and 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
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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 the Act).
(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 constitute a default or cause an
acceleration of any obligation under, the charter or bylaws of the
Company or any Subsidiary or any bond, note, debenture or other
evidence of indebtedness or any indenture, mortgage, deed of trust or
other material 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, or 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 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) 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
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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 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) Coopers & Xxxxxxx L.L.P., the firm of
accountants that has certified the applicable consolidated financial
statements and supporting schedules of the Company filed with the
Commission as part of or incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants with
respect to the Company and the Subsidiaries, as required by the Act.
The consolidated financial statements, together with related schedules
and notes, set
15
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,
accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company. Each of
the Company and its subsidiaries keeps books and records that fairly
reflect its assets and maintains internal accounting controls which
provide reasonable assurance that (a) transactions are executed in
accordance with management's authorization, (b) transactions are
recorded as necessary to permit preparation of the Company's
consolidated financial statements in accordance with generally accepted
accounting principles and to maintain accountability for the assets of
the Company, (c) access to the assets of the Company and each of its
subsidiaries is permitted only in accordance with management's
authorization, and (d) the recorded accountability for assets of the
Company and each of its subsidiaries is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to
any material differences.
(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
16
or any Subsidiary, 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, including without limitation, all licenses from
the insurance departments of the various states where the Subsidiaries
write insurance business, as are, in all material respects, necessary
to own, lease and operate their respective properties and to conduct
their respective businesses; the Company and each of its Subsidiaries
has fulfilled and performed all of its material obligations with
respect to such Permits and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination
thereof or results or would result in any other material impairment of
the rights of the holder of any such Permit; and, except as described
in the Prospectus, such Permits contain no restrictions that are
materially burdensome to the Company or any of its Subsidiaries.
(xvii) All 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
17
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, 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) 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. There is (A) no significant 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 (B) 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, except such as would not have a Material Adverse
Effect.
(xx) Except as otherwise set forth in the
Prospectus or such as would not have a Material Adverse
18
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
reasonably adequate insurance coverage for those risks customarily
insured against by companies in the same business.
(xxii) Except for [describe], 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) No Subsidiary is currently prohibited,
directly or indirectly, 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 xxxx 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.
19
(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.
(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) (A) The present fair and salable value of
the assets of the Company exceeds the amount that will be required to
be paid on or in respect of the existing debts and other liabilities
(including contingent liabilities) of the Company as they become
absolute and mature, and (B) following the issuance of the Debentures,
the present fair and salable value of the assets of the Company will
exceed the amount that will be required to be paid on or in respect of
the existing debts and other liabilities (including contingent
liabilities) of the Company as they become absolute and mature. The
assets of the Company do not constitute unreasonably small capital to
carry out its business as presently conducted (and will not constitute
unreasonably small capital to carry out its business as proposed to be
conducted) including the capital needs of the Company, taking into
account the projected capital requirements and capital availability of
the Company. The Company does not intend to, and does not believe that
it will, incur debts beyond its ability to pay such debts as they
mature. The Company will not permit its subsidiaries to incur debts
beyond their respective abilities to pay such debts as they mature.
(xxix) 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
20
affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(xxx) 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 and each of the Subsidiaries, jointly and
severally, agree 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 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.
21
(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 or any Subsidiary, 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 and the Subsidiaries 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 or such Subsidiary, as
the case may be). Upon receiving such notice, the Company or such
Subsidiary 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 (who
shall not, except with the consent of the Indemnified Person, be
counsel to the Company or a subsidiary of the Company) and, after
written notice from the Company to such Indemnified Person of its
election so to assume the defense thereof within 5 business days after
receipt of the notice from the Indemnified Person of such action or
proceeding, the Company and the Subsidiaries 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 and the Subsidiaries agree in writing to pay such fees
and expenses, or (ii) the Company fails promptly to assume such defense
or fails to employ counsel reasonably satisfactory to such Indemnified
Person or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Person
and the Company or an affiliate of the Company, and such Indemnified
Person shall have been advised by counsel either (x) that there may be
one or more legal defenses available to such Indemnified Person that
are different from or additional to those available to the Company or
such affiliate or (y) a conflict may exist between such Indemnified
Person and the Company or such affiliate (in which case, if such
Indemnified Person notifies the Company in writing, the Company shall
not have the right to assume the defense thereof), it being understood,
however, that the Company and the Subsidiaries shall not, in connection
with any one such action or proceeding or separate but substantially
similar or related actions or proceedings arising out of
22
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 and the Subsidiaries 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 and the Subsidiaries agree,
jointly and severally, 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 ten business 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 prior to the
date of such settlement. The Company and the Subsidiaries 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
23
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 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 and its Subsidiaries 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
and its Subsidiaries 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
24
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 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 Securities 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.
25
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. The Company shall have performed or complied with all of their
agreements herein contained and required to be performed or complied
with by them 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
26
material to the Company and its Subsidiaries taken as a whole and is
required to be disclosed in the notes to its financial statements in
accordance with GAAP and which is not so disclosed in or incorporated
by reference into the Registration Statement.
(d) You shall have received a certificate of the Company,
dated the Closing Date, executed on behalf of the Company by the Chief
Executive Officer and the Chief Financial Officer of the Company, in
their capacities as officers of the Company confirming the matters set
forth in paragraphs (a), (b) and (c) of this Section 10.
(e) You shall have received an opinion (satisfactory to you
and your counsel), dated the Closing Date, of XxXxxxxxxx Xxxxxxxx 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; (B) the shares of issued and outstanding
Common Stock have been duly authorized and are validly issued and are
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; and (C) 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
27
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 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;
(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 the Subsidiaries that is not
organized under the laws of a state of the United States (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
28
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 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 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;
(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 (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 and 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, 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;
(vi) to the knowledge of such counsel, each of the
Foreign Subsidiaries has such Permits, as are in all material respects,
necessary to own, lease and operate its properties and to conduct its
business in the manner described in the Prospectus; to the knowledge of
such counsel, each of the Foreign 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.
(g) You shall have received an opinion (satis-
factory to you and your counsel), dated the Closing
29
Date, of Xxxxx & Xxxxx, counsel for the Company, to the effect that:
(i) 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 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 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, and such counsel need express no opinion concerning the
enforceability of the waiver of rights under any usury laws contained
in Section 4.9 of the Indenture;
(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 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, and such counsel need express no opinion concerning the
enforceability of the waiver of rights
30
under any usury laws contained in Section 4.9 of the
Indenture;
(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), complied as to form in all material respects to the
applicable requirements of the Exchange Act.
(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;
31
(viii) 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;
(ix) 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.
(x) the Debentures and the Indenture conform
in all material respects to the descriptions thereof
contained in the Registration Statement and the
Prospectus;
(xi) at the time it became effective and on the
Closing Date, the Registration Statement (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 no
opinion need be expressed) complied 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;
(xii) 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 and to which the
Company or any Subsidiary is a party or bound, or constitute a default
under, any statute, rule or regulation to which the Company or any
Subsidiary is a party
32
or by which any of them is bound, or to which any of the properties of
the Company or any Subsidiary is subject, or any order of any court or
governmental agency or body having jurisdiction over the Company or any
Subsidiary or any of their properties;
(xiii) 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 adequately disclosed in the
Prospectus;
(xiv) the statements made in the Prospectus under the
captions "_________________", "_________________" and
"_____________________," insofar as the same constitute summary
descriptions of ___________________________, are accurate in all
material respects.
(xv) 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;
(xvi) 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) (A) 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 (B) has the corporate power and authority to own and
lease its properties and to conduct its business as described in the
Prospectus;
33
(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 or in this Agreement, 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 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
34
respective property is subject of a character required
to be disclosed in the Registration Statement which is
not adequately disclosed in the Prospectus;
(viii) 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.
In addition, each of Xxxxx & Xxxxx 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) no facts came to such counsel's attention
that caused such counsel to believe that the Registration Statement (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, 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
35
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, the laws of the State of New York and the State of Texas,
[and the corporate law of the State of Delaware]. The opinion of Xxxxxx X.
Xxxxxxx shall be limited to the laws of the United States, the laws of the State
of Texas, [and the corporate law of the State of Delaware]. The opinion of each
foreign counsel shall be limited to the laws of the jurisdiction in which the
Foreign Subsidiary with respect to which such opinion is given is organized.
(i) You shall have received on the Closing Date an opinion,
dated the Closing Date, of Weil, Gotshal & 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.
(m) Prior to the Closing Date, the Company shall
have furnished to you or caused to be furnished to you
36
such further information, certificates and documents as
you may reasonably request.
(n) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company
at or prior to the Closing Date.
(o) There shall not have been any announcement by any
"nationally recognized statistical rating organization," as defined for
purposes of Rule 436(g) under the Act, nor shall any such organization
have advised the Company or the Underwriters, that (i) it is
downgrading its rating assigned to any class of securities of the
Company or (ii) it is reviewing any such rating with a view to possible
downgrading, or with negative implications, or direction not
determined.
The several obligations of the Underwriters to purchase
Additional Debentures hereunder are subject to satisfaction on and as of the
Option Closing Date of the conditions set forth in paragraphs (a) through (j)
above except that the opinions called for in paragraphs (e) and (f) and the
letters referred to in (g) 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
37
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 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
38
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 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
39
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: [___________________], with a copy
to Xxxxx & Xxxxx, L.L.P., at 0000 Xxx Xxxxx Xxxxx, Xxxxxxx, Xxxxx 00000,
Attention: L. Xxxxxxx Xxxxxx, Esq., (b) if to any Underwriter, to Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, 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. on
behalf of itself and each of its
Subsidiaries
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, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:
[J. Xxxx Xxxxxxx]
[Managing Director]
41
SCHEDULE I
PRINCIPAL
AMOUNT
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation $
Xxxxxx X. Xxxxx & Co. Inc.
Xxxxxx Xxxxxx & Company, Inc.
Total $60,000,000
42
