<PAGE> 1
SCHEDULE 13D
(Rule 13d-101)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Under the Securities Exchange Act of 1934
Amendment No. 1
---
Pride International, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock
- --------------------------------------------------------------------------------
(Title of Class of Securities)
741541106
- --------------------------------------------------------------------------------
(CUSIP Number)
Thomas R. Denison - First Reserve Corporation, 1801 California St., #4110,
Denver, CO 80202, (303) 382-1280
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
March 31, 2000
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of
this Schedule 13D, and is filing this schedule because of Rule 13d-1(e),
13d-1(f) or 13d-1(g), check the following box following box. / /
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE> 2
- --------------------- ------------------
CUSIP No. 741541106 SCHEDULE 13D Page 2 of 13 Pages
- --------------------- ------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
First Reserve Fund VII, Limited Partnership
I.R.S. No.: 06-1457408
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 820,327
----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
----------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 820,327
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
820,327
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* /X/
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
1.3%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 3
- --------------------- ------------------
CUSIP No. 741541106 SCHEDULE 13D Page 3 of 13 Pages
- --------------------- ------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
First Reserve Fund VIII, LP
I.R.S. No.: 06-1507364
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 9,407,939
----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
----------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 9,407,939
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,407,939
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* /X/
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
14.5%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 4
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CUSIP No. 741541106 SCHEDULE 13D Page 4 of 13 Pages
- --------------------- ------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
First Reserve GP VII, LP
I.R.S. No.: 06-1520256
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 820,327
----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
----------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 820,327
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
820,327
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* /X/
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
1.3%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 5
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CUSIP No. 741541106 SCHEDULE 13D Page 5 of 13 Pages
- --------------------- ------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
First Reserve GP VIII, LP
I.R.S. No.: 06-1507318
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 9,407,939
----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
----------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 9,407,939
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,407,939
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* /X/
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
14.5%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 6
- --------------------- ------------------
CUSIP No. 741541106 SCHEDULE 13D Page 6 of 13 Pages
- --------------------- ------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
First Reserve Corporation
I.R.S. No.: 06-1210123
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 10,238,266
----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
----------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 10,238,266
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,238,266
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
15.8%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 7
- --------------------- ------------------
CUSIP No. 741541106 SCHEDULE 13D Page 7 of 13 Pages
- --------------------- ------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
William E. Macaulay
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 10,000
----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
----------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 10,000
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,000
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
0.0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 8
- --------------------- ------------------
CUSIP No. 741541106 SCHEDULE 13D Page 8 of 13 Pages
- --------------------- ------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John A. Hill
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
----------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* /X/
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
0.0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 9
This Amendment No. 1 to the statement on Schedule 13D filed on July 26,
1999, by First Reserve Fund VII, Limited Partnership ("Fund VII"), First Reserve
Fund VIII, L.P. ("Fund VIII", and collectively, with Fund VII, the "Funds"),
First Reserve GP VII, L.P., ("GP VII"), First Reserve GP VIII, L.P. ("GP VIII"),
First Reserve Corporation ("First Reserve"), William E. Macaulay and John A.
Hill relates to the Common Stock, no par value per share (the "Common Stock"),
of Pride International, Inc., a Delaware corporation ("Pride" or the "Company").
That Schedule 13D is hereby amended as set forth below.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 is hereby amended by deleting the first sentence of the second
paragraph thereof and replacing it with the following:
The Funds are Delaware limited partnerships with limited terms of
existence. Their principal purpose is to make equity, equity-linked and debt
investments in companies engaged in various energy and energy related
activities.
The remaining paragraphs of Item 2 are unchanged.
ITEM 3. SOURCE OF FUNDS.
Item 3 is hereby amended to add the following paragraph at the end of
Item 3:
Fund VIII entered into a Securities Purchase Agreement (the "Purchase
Agreement") with Pride and its wholly owned subsidiary Twin Oaks Financial Ltd.
("Twin Oaks") on March 31, 2000. Pursuant to the terms and conditions of the
Purchase Agreement, Fund VIII purchased 4,500,000 shares of Common Stock of the
Company. As consideration for the shares, Fund VIII delivered a cash payment of
$72,000,000. The cash delivered at the closing was contributed to Fund VIII by
its partners.
The remaining paragraphs of Item 3 are unchanged.
ITEM 4. PURPOSE OF THE TRANSACTION.
Item 4 is hereby amended to add the following paragraph at the end of
Item 4:
The purpose of the securities purchase was to increase the Funds'
investment in the Company.
On March 31, 2000, the Funds entered into the First Amended and
Restated Shareholders Agreement (the "Restated Shareholders Agreement") with
Pride. Pursuant to the Restated Shareholders Agreement, and more fully described
in Item 6 below, the Funds have the right to designate one member of the board
of directors of Pride. William E. Macaulay, an officer of First Reserve,
currently serves as a director of the Company. Additionally, the Restated
Shareholders Agreement contains certain covenants that restrict the Funds'
ability to acquire or dispose of Pride Common Stock. First Reserve and the Funds
may also decide, subject to contractual limitations, to dispose of Company
securities at any time or to formulate other purposes, plans or proposals
regarding the Company or any of its securities based on all of the above factors
and on the eventual liquidation of each Fund in accordance with its respective
partnership agreement.
The remaining paragraphs of Item 4 are unchanged.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is hereby deleted and replaced with the following:
PAGE 9 OF 13 PAGES
<PAGE> 10
(a) As of March 31, 2000, the Funds beneficially owned an aggregate of
10,228,266 shares of Common Stock. Additionally, William E. Macaulay holds stock
options issued under the Company's non-employee director stock option plan
covering 10,000 shares of Common Stock. The 10,238,266 total shares constitute
approximately 15.8% of the 65,000,000 shares of Common Stock outstanding as of
March 29, 2000, as reported by the Company, but including the shares issued on
March 31, 2000.
GP VII and GP VIII, as the general partner of Fund VII and Fund VIII,
respectively, may be deemed to beneficially own the shares of Common Stock owned
by those respective Funds. First Reserve as the general partner of GP VII and GP
VIII may be deemed to beneficially own all of the shares of Common Stock owned
by the Funds. First Reserve shares beneficial ownership of the options held by
Mr. Macaulay under certain terms of his employment agreement with First Reserve.
Mr. Macaulay and Mr. Hill, as directors and shareholders of First Reserve, may
be deemed to share beneficial ownership of the shares beneficially owned by
First Reserve and the Funds. Mr. Macaulay and Mr. Hill disclaim beneficial
ownership of such shares. Except as set forth otherwise in this Schedule 13D,
neither the filing of this Schedule nor any of its contents shall be deemed to
constitute an admission that Mr. Macaulay or Mr. Hill is the beneficial owner of
the Common Stock referred to in this paragraph for purposes of Section 13(d) of
the Exchange Act or for any other purpose, and such beneficial ownership is
expressly disclaimed.
The number and percentage of shares of Common Stock beneficially owned
by each Reporting Person are as follows:
<TABLE>
<CAPTION>
Percentage of Shares of
Common Stock
Outstanding on March
Shares 29, 2000
------ -----------------------
<S> <C> <C>
Fund VII 820,327 1.3%
Fund VIII 9,407,939 14.5%
GP VII (through Fund VII) 820,327 1.3%
GP VIII (through Fund VIII) 9,407,939 14.5%
First Reserve* 10,238,266 15.8%
William E. Macaulay* 10,238,266 15.8%
John A. Hill* 10,228,266 15.8%
</TABLE>
* 10,228,266 of the shares reported as beneficially owned by First Reserve, Mr.
Macaulay and Mr. Hill are directly owned by the Funds. Additionally, 10,000 of
the shares reported are stock options issued to Mr. Macaulay. Mr. Hill
disclaims beneficial ownership of all such shares, and Mr. Macaulay disclaims
beneficial ownership of all shares not directly held by him.
PAGE 10 OF 13 PAGES
<PAGE> 11
(b) Except as described in Item 6, each Fund shares with its general
partner the power to vote or to direct the vote of the shares directly held by
it. GP VII and GP VIII, in their roles as general partners of Fund VII and Fund
VIII, respectively, and First Reserve, in its role as general partner of GP VII
and GP VIII, share with each Fund the power to cause each Fund to dispose of or
vote the shares of Common Stock directly held by such Fund. First Reserve also
shares dispositive control over the 10,000 shares issued as stock options held
by Mr. Macaulay under certain terms of his employment with First Reserve. As a
result of their positions with and ownership interest in First Reserve, Mr.
Macaulay and Mr. Hill may be deemed to have shared power to direct the voting
and disposition of the 10,238,266 shares reported.
(c) See Source of Funds, in Item 3 above.
(d) To the best knowledge of the Reporting Persons, no other person has
the right to receive, or the power to direct the receipt of dividends from, or
the power to direct the receipt of proceeds of the sale of the shares of Common
Stock owned by the Reporting Persons.
(e) Not applicable
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is hereby amended to add the following at the end of Item 6:
On March 31, 2000, Pride, Fund VIII, and Twin Oaks entered into the
Securities Purchase Agreement. Under the Purchase Agreement, First Reserve and
Twin Oaks have certain put and call rights with respect to the 4,500,000 shares
acquired under the Purchase Agreement. Those rights are more fully explained in
the Purchase Agreement, attached hereto as Exhibit A. In addition, Fund VIII may
not vote these shares or transfer these shares until the shareholders of Pride
have approved the March 31, 2000 transaction.
On March 31, 2000, the Funds and Pride and Twin Oaks entered into the
Restated Shareholders Agreement with respect to the 4,500,000 shares purchased.
The Restated Shareholders Agreement allows First Reserve to designate one member
of the Company's board of directors, provided that the person designated shall
be a managing director or other higher official of First Reserve, or otherwise
reasonably acceptable to the Company. The Restated Shareholders Agreement also
restricts First Reserve and its affiliates from acquiring securities of the
Company, except those acquired pursuant to the Purchase Agreement, that would
result in an increase in the aggregate beneficial ownership of Company
securities by an amount equal to 3% or more of either the Voting Power (as
defined in the Restated Shareholders Agreement) or the number of outstanding
shares of any class or series of Company securities. Additionally, it restricts
First Reserve and its affiliates from selling , transferring or disposing of
Company securities in certain transactions to any person or group, other than
Twin Oaks, that would own 5% or greater of the Voting Power. The Restated
Shareholders Agreement also grants demand and piggyback registration rights to
First Reserve with respect to the Common Stock held by them.
ITEM 7. EXHIBITS.
Exhibit A: Securities Purchase Agreement Dated as of March 31,
2000 By and Among Pride International, Inc., First
Reserve Fund VIII, L.P. and Twin Oaks Financial, Ltd.
Exhibit B: First Amended and Restated Shareholders Agreement
Among Pride International, Inc., First Reserve
Fund VII, L.P., and First Reserve Fund VIII, L.P.
dated March 31, 2000.
PAGE 11 OF 13 PAGES
<PAGE> 12
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Dated: April 6, 2000.
FIRST RESERVE FUND VII, LIMITED PARTNERSHIP
By: First Reserve GP VII, LP, as General Partner
By: First Reserve Corporation,
as General Partner
By: /s/ Thomas R. Denison
---------------------------------
Name: Thomas R. Denison
Title: Managing Director
FIRST RESERVE FUND VIII, L.P.
By: First Reserve GP VIII, LP, as General Partner,
By: First Reserve Corporation
as General Partner
By: /s/ Thomas R. Denison
---------------------------------
Name: Thomas R. Denison
Title: Managing Director
FIRST RESERVE GP VII, LP
By: First Reserve Corporation,
as General Partner
By: /s/ Thomas R. Denison
---------------------------------
Name: Thomas R. Denison
Title: Managing Director
PAGE 12 OF 13 PAGES
<PAGE> 13
FIRST RESERVE GP VIII, LP
By: First Reserve Corporation,
as General Partner
By: /s/ Thomas R. Denison
---------------------------------
Name: Thomas R. Denison
Title: Managing Director
FIRST RESERVE CORPORATION
By: /s/ Thomas R. Denison
---------------------------------------
Name: Thomas R. Denison
Title: Managing Director
William E. Macaulay
By: /s/ Thomas R. Denison
---------------------------------------
Name: Thomas R. Denison
His Attorney-in-Fact
(See Previously Filed Power of Attorney)
John A. Hill
/s/ Thomas R. Denison
--------------------------------------
Name: Thomas R. Denison
His Attorney-in-Fact
(See Previously Filed Power of Attorney)
PAGE 13 OF 13 PAGES
<PAGE> 1
EXHIBIT A
EXECUTION VERSION
SECURITIES PURCHASE AGREEMENT
DATED AS OF MARCH 31, 2000
BY AND AMONG
PRIDE INTERNATIONAL, INC.,
FIRST RESERVE FUND VIII, L.P.
AND
TWIN OAKS FINANCIAL LTD.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I DEFINITIONS
Section 1.1 DEFINITIONS ............................................. 1
"Affiliate" ............................................. 1
"Agreement" ............................................. 1
"Annual Report" ......................................... 1
"Average Market Price" .................................. 1
"Beneficial Owner" ...................................... 1
"Business Combination" .................................. 1
"Business Combination Date" ............................. 2
"Call Notice" ........................................... 2
"Call Right" ............................................ 2
"Closing" ............................................... 2
"Closing Date" .......................................... 2
"Commission" ............................................ 2
"Common Stock" .......................................... 2
"Company" ............................................... 3
"Company Indemnified Party" ............................. 3
"Continuing Directors" .................................. 3
"Contracts" ............................................. 3
"Costs" ................................................. 3
"Dispute" ............................................... 3
"Environmental Claims" .................................. 3
"Environmental Laws" .................................... 3
"Exchange Act" .......................................... 3
"First Reserve Group" ................................... 3
"GAAP" .................................................. 3
"Group" ................................................. 3
"Governmental Authority" ................................ 3
"Incorporated Documents" ................................ 3
"Indemnified Party" ..................................... 3
"Indemnifying Party" .................................... 3
"Intermediary" .......................................... 3
"Liens" ................................................. 3
"Loss" and "Losses" ..................................... 3
"Material Adverse Change" ............................... 4
"Material Adverse Effect" ............................... 4
"Materials of Environmental Concern" .................... 4
"Own Company Securities" ................................ 4
"Permits" ............................................... 4
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
"Person" ................................................ 4
"Prospectus" ............................................ 4
"Purchase Price" ........................................ 4
"Purchaser" ............................................. 4
"Purchaser Indemnified Party" ........................... 4
"Put Date" .............................................. 4
"Put Notice" ............................................ 4
"Put Payment" ........................................... 4
"Put Right" ............................................. 5
"Registration Statement" ................................ 5
"SEC Reports" ........................................... 5
"Securities Act" ........................................ 5
"Sellers" ............................................... 5
"Shareholder Approval Date" ............................. 5
"Shareholders Agreement" ................................ 5
"Shares" ................................................ 5
"Subsidiary" ............................................ 5
"Trading Date" .......................................... 5
"Transactions" .......................................... 5
"Twin"................................................... 5
Section 1.2 OTHER DEFINITIONS ....................................... 5
Section 1.3 CONSTRUCTION ............................................ 6
ARTICLE II ISSUANCE AND PURCHASE OF COMMON STOCK
Section 2.1 ISSUANCE AND PURCHASE OF COMMON STOCK ................... 6
Section 2.2 THE CLOSING ............................................. 6
Section 2.3 PUT RIGHTS .............................................. 6
Section 2.4 CALL RIGHTS ............................................. 7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.1 ORGANIZATION ............................................ 7
Section 3.2 CAPITALIZATION .......................................... 8
Section 3.3 POWER AND AUTHORITY; ENFORCEABILITY ..................... 8
Section 3.4 CONSENTS AND APPROVALS .................................. 9
Section 3.5 COMMISSION REPORTS ...................................... 10
Section 3.6 FINANCIAL STATEMENTS..................................... 10
Section 3.7 LITIGATION .............................................. 11
Section 3.8 INTELLECTUAL PROPERTY ................................... 11
Section 3.9 PERMITS ................................................. 11
Section 3.10 NO ADVERSE CHANGE; ABSENCE OF LIABILITIES .............. 12
Section 3.11 TAX RETURNS ............................................ 12
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 3.12 PROPERTIES AND CONTRACTS ................................. 12
Section 3.13 ENVIRONMENTAL MATTERS .................................... 12
Section 3.14 LABOR MATTERS ............................................ 13
Section 3.15 INSURANCE ................................................ 13
Section 3.16 NO INVESTMENT COMPANY .................................... 13
Section 3.17 REGISTRATION RIGHTS; PUT RIGHTS .......................... 13
Section 3.18 NO INTEGRATION ........................................... 13
Section 3.19 NO REGISTRATION .......................................... 14
Section 3.20 BROKER'S OR FINDER'S COMMISSIONS ......................... 14
Section 3.21 USE OF PROCEEDS; MARGIN REGULATIONS ...................... 14
Section 3.22 NO ILLEGAL OR IMPROPER TRANSACTIONS ...................... 14
Section 3.23 COMPLETENESS OF INFORMATION; ABSENCE OF MISSTATEMENTS AND
OMISSIONS ................................................ 14
Section 3.24 SOLVENCY ................................................. 15
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Section 4.1 AUTHORITY ................................................. 15
Section 4.2 CONSENTS AND APPROVAL; NO VIOLATION ....................... 15
Section 4.3 SECURITIES LAWS ........................................... 16
Section 4.4 BROKER'S OR FINDER'S COMMISSIONS .......................... 16
ARTICLE V COVENANTS
Section 5.1 USE OF PROCEEDS ........................................... 16
Section 5.2 CORPORATE EXISTENCE ....................................... 16
Section 5.3 COMPLIANCE WITH LAWS ...................................... 16
Section 5.4 MAINTENANCE OF PROPERTIES AND PERMITS ..................... 17
Section 5.5 ACCESS TO INFORMATION ..................................... 17
Section 5.6 SEC FILINGS ............................................... 17
Section 5.7 APPROPRIATE ACTION; CONSENTS; FILINGS ..................... 18
Section 5.8 CONDUCT OF BUSINESS PENDING CLOSING ....................... 18
Section 5.9 NO IMPAIRMENT ............................................. 19
Section 5.10 RECOMMENDATION TO SHAREHOLDERS ........................... 19
Section 5.11 NO SENIOR PUT RIGHTS ..................................... 19
ARTICLE VI PURCHASER'S CONDITIONS
Section 6.1 REPRESENTATIONS AND COVENANTS ............................. 19
Section 6.2 SHAREHOLDERS AGREEMENT .................................... 20
Section 6.3 COMPANY CAUSED MATERIAL ADVERSE CHANGE .................... 20
Section 6.4 REQUIRED CONSENTS, APPROVALS AND FILINGS .................. 20
</TABLE>
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<TABLE>
<S> <C> <C>
Section 6.5 NEW YORK STOCK EXCHANGE APPROVAL .......................... 20
Section 6.6 PAYMENTS .................................................. 20
Section 6.7 OPINIONS OF COUNSEL ....................................... 20
Section 6.8 ADDITIONAL DOCUMENTS ...................................... 20
ARTICLE VII COMPANY'S CONDITIONS
Section 7.1 REPRESENTATIONS AND COVENANTS ............................. 20
Section 7.2 SHAREHOLDERS AGREEMENT .................................... 21
Section 7.3 REQUIRED CONSENTS AND APPROVALS ........................... 21
ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER
Section 8.1 TERMINATION ............................................... 21
Section 8.2 SURVIVAL; FAILURE TO CLOSE ................................ 21
ARTICLE IX OTHER PROVISIONS
Section 9.1 BROKERAGE FEES AND COMMISSIONS ............................ 21
Section 9.2 PUBLIC ANNOUNCEMENTS ...................................... 22
ARTICLE X INDEMNIFICATION
Section 10.1 INDEMNIFICATION BY THE COMPANY ........................... 22
Section 10.2 INDEMNIFICATION BY THE PURCHASER ......................... 22
Section 10.3 INDEMNIFICATION PROCEDURES ............................... 22
Section 10.4 TERMINATION .............................................. 23
ARTICLE XI MISCELLANEOUS
Section 11.1 DISPUTE RESOLUTION ....................................... 24
Section 11.2 ENTIRE AGREEMENT ......................................... 26
Section 11.3 NOTICES .................................................. 27
Section 11.4 GOVERNING LAW ............................................ 27
Section 11.5 SEVERABILITY ............................................. 28
Section 11.6 EXPENSES ................................................. 28
Section 11.7 DESCRIPTIVE HEADINGS ..................................... 28
Section 11.8 COUNTERPARTS ............................................. 28
Section 11.9 ASSIGNMENT ............................................... 28
Section 11.10 AMENDMENTS; WAIVERS ..................................... 28
</TABLE>
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EXHIBIT A FIRST AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
EXHIBIT B FORM OF OPINION OF BAKER BOTTS L.L.P.
EXHIBIT C FORM OF OPINION OF SHER GARNER CAHILL RICHTER KLEIN
MCALISTER & HILBERT, L.L.P.
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SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement ("Agreement") is made and entered
into as of the 31st of March, 2000, by and among Pride International, Inc., a
Louisiana corporation (the "Company"), Twin Oaks Financial Ltd., a British
Virgin Islands corporation and a wholly-owned subsidiary of the Company ("Twin";
and together with the Company, the "Sellers"), and First Reserve Fund VIII,
L.P., a Delaware limited partnership (the "Purchaser").
WHEREAS, subject to the terms and conditions of this Agreement, the
Company is desirous of receiving additional investment, and the Purchaser is
desirous of making an additional investment in the Company;
NOW, THEREFORE, the Company and the Purchaser agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. As used in this Agreement, the following terms
have the meanings indicated:
"Affiliate" and the terms contained in the definition thereof which are
themselves defined terms shall have the respective meanings given to such terms
in Rule 405 under the Securities Act.
"Agreement" has the meaning ascribed to such term in the first
paragraph hereof.
"Annual Report" means the Annual Report on Form 10-K for the Year Ended
December 31, 1998 of the Company, or, from and after the date of its filing, the
Annual Report on Form 10-K for the Year Ended December 31, 1999.
"Average Market Price" means, for a given security, the average Market
Price for such security for the twenty Trading Day period ending on and
including the Trading Day prior to the date of determination.
"Beneficial Owner" is defined in Rules 13d-3 and 13d-5 of the Exchange
Act, but without taking into account any contractual restrictions or limitations
on voting or other rights.
"Business Combination" means (i) any consolidation, merger, share
exchange or similar business combination transaction involving the Company or
Twin with any Person, (ii) any Change of Control Stock Event, (iii) the sale,
assignment, conveyance, transfer, lease or other disposition by the Company or
Twin of all or substantially all of its assets or (iv) the Company shall cease
to own and control, of record and beneficially, 100% of each class of
outstanding stock of Twin. For
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purposes of this definition, "Change of Control Stock Event" means any issuance
by the Company or Twin, in a single transaction or series of related
transactions, of their respective shares of common stock or Common Stock
Equivalents in connection with the acquisition of assets (including cash) or
securities by the Company or a Subsidiary of the Company (including by way of a
merger of a Subsidiary of the Company with or into a Person) or any purchase
(whether on the open market, by consent or otherwise) of shares of common stock
of the Company or a Subsidiary, except where (i) the shareholders of the Company
or Twin immediately prior to such issuance or purchase own (in substantially the
same proportion relative to each other as such shareholders owned the common
stock or voting stock of the Company or Twin, as the case may be, immediately
prior to such consummation) (x) more than 50% of the voting stock of the Company
or Twin, as the case may be, immediately after such issuance, and (y) more than
50% of the outstanding common stock of the Company or Twin, as the case may be,
immediately after such issuance or purchase, (ii) the members of the Board of
Directors (the "Board") of the Company or Twin, as the case may be, immediately
after entering into the agreement relating to such issuance or purchase (or if
no such agreement is entered into, then immediately after such issuance or
purchase) consist of a majority of Continuing Directors and (iii) no Person or
Group of Persons immediately after such issuance or purchase is the Beneficial
Owner of 35% or more of the total outstanding voting stock (calculated based
on the total number of outstanding voting stock prior to the date of such
issuance or purchase) of the Company or Twin, as the case may be, or common
stock. In calculating the percentage of the voting stock of the Company or Twin
owned by the shareholders of the Company or Twin, as the case may be,
immediately prior to an issuance or purchase of common stock or Common Stock
Equivalents in which there is more than one class or series of voting stock, the
percentage of the voting stock shall be calculated based on the number of votes
eligible to be cast in the election of the directors of the Company or Twin,
generally. In calculating the percentages of voting stock and common stock owned
by a shareholder for purposes of this definition, such calculation shall be
calculated on a basis assuming the exercise or conversion in full of all Common
Stock Equivalents and on a basis disregarding all Common Stock Equivalents, and
the percentage which results in the lower percentage owned by such shareholder
shall apply in the application of clause (i) above.
"Business Combination Date" means the earlier of (i) the date the
Company or Twin announces that it has agreed to a transaction that, upon
consummation thereof, would result in a Business Combination or (ii) the date a
Business Combination of the Company or Twin occurs.
"Call Notice" has the meaning ascribed to such term in Section 2.4.
"Call Right" has the meaning ascribed to such term in Section 2.4.
"Closing" has the meaning ascribed to such term in Section 2.2.
"Closing Date" has the meaning ascribed to such term in Section 2.2.
"Commission" has the meaning ascribed to such term in Section 3.5.
"Common Stock" means the common stock, no par value, of the Company.
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"Company" has the meaning ascribed to such term in the first paragraph
hereof
"Company Indemnified Party" has the meaning ascribed to such term in
Section 10.2.
"Continuing Directors" means (a) the directors of the Company on the
Closing Date and (b) each other director if (a) in each case, such other
director's nomination for election to the board of director's of the Company is
recommended by at least two-thirds of the then Continuing Directors.
"Contracts" means any indenture, mortgage, deed of trust, loan
agreement, note, lease, license, franchise agreement, permit, certificate,
contract or other agreement or instrument to which the Company, Twin or any of
their respective Subsidiaries is a party or to which their respective properties
or assets are subject.
"Costs" has the meaning ascribed to such term in Section 11.6.
"Dispute" has the meaning ascribed to such term in Section 11.1.
"Environmental Claims" has the meaning ascribed to such term in
Section 3.13.
"Environmental Laws" has the meaning ascribed to such term in
Section 3.13.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"First Reserve Group" shall have the meaning set forth in the
Shareholders Agreement.
"GAAP" has the meaning ascribed to such term in Section 3.6.
"Group" means a group as contemplated by Section 13(d)(3) of the
Exchange Act.
"Governmental Authority" means the United States, any foreign country,
province, state, county, city or other political subdivision, government
corporation, agency or instrumentality of any thereof.
"Incorporated Documents" means all exhibits, appendices and annexes
included with or incorporated by reference in any of the SEC Reports.
"Indemnified Party" has the meaning ascribed to such term in
Section 10.3.
"Indemnifying Party" has the meaning ascribed to such term in
Section 10.3.
"Intermediary" has the meaning ascribed to such term in Section 9.1.
"Liens" has the meaning ascribed to such term in Section 3.2.
"Loss" and "Losses" have the meaning ascribed to such terms in
Section 10.1.
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"Material Adverse Change" has the meaning ascribed to such term in
Section 3.10.
"Material Adverse Effect" means any event or condition which,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on the general affairs, management, business, condition
(financial or otherwise), prospects or results of operations of the Company and
the Subsidiaries, taken as a whole.
"Materials of Environmental Concern" has the meaning ascribed to such
term in Section 3.13.
"Own Company Securities" means from and after the first date upon which
the aggregate amount invested by the Purchaser in the Common Stock and/or the
preferred stock of the Company and any other securities that are convertible
into or exchangeable for Common Stock of the Company equals or exceeds $50
million (regardless of whether, as a result of share repurchases, dividends or
otherwise, the Purchaser's investment in the Company subsequently becomes less
than $50 million); provided, however, the Purchaser shall not be deemed to "Own
Company Securities" after the date (after such date on which the First Reserve
Group is first deemed to Own Company Securities) that its aggregate direct or
indirect beneficial ownership of capital stock of the Company constitutes or
would be convertible into or exchangeable for less than 5% of the then
outstanding shares of Common Stock.
"Permits" means any licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and all declarations and filings with,
all federal, state, local and other Governmental Authorities, all
self-regulatory organizations and all courts and other tribunals presently
required or necessary to own or lease, as the case may be, and to operate the
properties of the Company, Twin and the Subsidiaries and to carry on the
business of the Company, Twin and the Subsidiaries as now or proposed to be
conducted as set forth in the SEC Reports.
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, limited liability company, joint
venture, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Prospectus" means the prospectus contained in the Registration
Statement in the form filed with the Commission pursuant to Rule 424 under the
Securities Act.
"Purchase Price" has the meaning ascribed to such term in Section 2.1.
"Purchaser" has the meaning ascribed to such terms in the first
paragraph hereof.
"Purchaser Indemnified Party" has the meaning ascribed to such term in
Section 10.1.
"Put Date" means the date the Purchaser exercises its Put Right.
"Put Notice" has the meaning ascribed to such term in Section 2.3.
"Put Payment" has the meaning ascribed to such term in Section 2.3.
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"Put Right" has the meaning ascribed to such term in Section 2.3.
"Registration Statement" means the Company's Registration Statement on
Form S-3 (file No. 333-44925), filed by the Company under the Securities Act in
the form declared effective by the Commission on March 23, 1998.
"SEC Reports" means the Registration Statement, the Annual Report, the
Company's Quarterly Report on Form l0-Q for the Quarter ended September 30,
1999, the definitive Proxy Statement dated April 27, 1999 for the Annual Meeting
of Stockholders to be held on May 25, 1999 and each other document, report or
filing made by the Company, Twin and any of its Subsidiaries since March 23,
1998 to and including the Closing Date with the Commission, including, in each
instance, all Incorporated Documents.
"Securities Act" means the Securities Act of 1933, as amended.
"Sellers" has the meaning ascribed to such term in the first paragraph.
"Shareholder Approval Date" means the date the shareholders of the
Company adopt the resolution approving the issuance of the Common Stock to the
Purchaser as set forth herein.
"Shareholders Agreement" means the First Amended and Restated
Shareholders Agreement in the form attached hereto as Exhibit A, as the same may
be further amended or restated from time to time.
"Shares" has the meaning ascribed to such term in Section 2.1.
"Subsidiary" means, when used with reference to an entity, any
corporation, a majority of the outstanding voting securities of which are owned
directly or indirectly by such entity. Such term shall also refer to any other
partnership, limited partnership, limited liability company, joint venture,
trust, or other business entity in which such entity has a material interest.
"Trading Date" means a day on which the principal market with respect
to the security in question is regularly scheduled to be open for trading, or if
there is not such principal market, then a day on which the New York Stock
Exchange is regularly scheduled to be open for trading.
"Transactions" means the issuance and sale of the Shares to the
Purchaser, the other transactions contemplated by this Agreement and the
Shareholders Agreement.
"Twin" has the meaning ascribed to such term in the first paragraph.
Section 1.2 OTHER DEFINITIONS. Other terms defined in this Agreement
have the meanings so given them.
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Section 1.3 CONSTRUCTION. Whenever the context requires, the gender of
all words used in this Agreement includes the masculine, feminine, and neuter,
and the singular shall include the plural, and vice versa. Except as specified
otherwise, all references to Articles and Sections refer to articles and
sections of this Agreement, and all references to exhibits are to Exhibits
attached to this Agreement, each of which is made apart of this Agreement for
all purposes. The word "including" shall mean "including, without limitation"
unless the context otherwise requires.
ARTICLE II
ISSUANCE AND PURCHASE OF COMMON STOCK
Section 2.1 ISSUANCE AND PURCHASE OF COMMON STOCK. (a) Subject to the
terms and conditions of this Agreement, the Company agrees to (i) issue and sell
to the Purchaser (or to another member of the First Reserve Group designated by
the Purchaser), in such proportion as the Purchaser shall designate prior to the
Closing Date, and the Purchaser (or such other member of the First Reserve
Group) agrees to subscribe for and purchase from the Company, Four Million Five
Hundred Thousand (4,500,000) shares of Common Stock of the Company at a purchase
price of $16.00 per share (the number of shares of Common Stock so delivered
being referred to herein as the "Shares").
(b) The aggregate purchase price for the Shares (the "Purchase
Price") shall be payable at the Closing by delivery by the Purchaser to the
Company of immediately available funds in the amount of $72,000,000.
(c) Prior to the Shareholder Approval Date, (i) the holder of
the Shares shall not be permitted to vote the Shares on any matter for which
shareholder approval is sought, and (ii) the Purchaser shall not, and shall
cause each other member of the First Reserve Group that it controls not to,
directly or indirectly, sell, transfer beneficial ownership of, pledge,
hypothecate or otherwise dispose of any Shares; provided however, prior to and
after the Shareholder Approval Date, subject to applicable law and the
Shareholder Agreement, the Shares shall have all the rights as any Common Stock
of the Company, except as set forth in this Section 2.1(c).
Section 2.2 THE CLOSING. Subject to the terms and conditions of this
Agreement, the issuance and purchase of the Shares shall take place at a closing
(the "Closing") to be held at the offices of Vinson & Elkins L.L.P., 1001 Fannin
Street, 23rd Floor, Houston, Texas, at 10:00 a.m. (Central time) on the day
following the satisfaction of the conditions to purchase, but not later than
March 31, 2000, or such other date as may be agreed by the parties. The date on
which the Closing occurs is referred to herein as the "Closing Date." On the
Closing Date, the Company will deliver, or cause to be delivered, certificates
representing the validly issued, fully paid and nonassessable Shares upon
receipt of the Purchase Price therefor by wire transfer of immediately available
funds to an account designated by the Company, or by such other method as is
mutually agreed to by the Purchaser and the Company. Certificates evidencing the
Shares shall bear appropriate restrictive legends deemed necessary by the
Company to comply with applicable securities laws.
Section 2.3 PUT RIGHTS. At any time, and from time to time, prior to
the Shareholder Approval Date but in no event prior to the earlier of (a) the
first anniversary of the Issue Date and (b) a Business Combination Date, the
Purchaser may elect to sell to Twin by notifying Twin in writing (the "Put
Notice"), and upon such election Twin will be required to purchase from the
Purchaser all
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(but not less than all) of the Shares (the "Put Right") for a cash price per
Share equal to the Average Market Price of the Common Stock, calculated with the
date of determination being the day immediately following the tenth Trading Day
after the Purchaser delivers the Put Notice to Twin. Twin shall make any such
redemption payment (the "Put Payment") by wire transfer to an account specified
by the Purchaser on the thirtieth day following receipt of the Put Notice. The
Purchaser's Put Rights shall terminate on the Shareholder Approval Date.
Section 2.4 CALL RIGHTS. (a) If the Board of the Company submits and
recommends to the shareholders of the Company adoption of resolutions approving
the issuance and purchase of the Common Stock by the Purchaser as specified
herein and the shareholders affirmatively fail to adopt such resolutions, then,
at any time during the 30 day period beginning on the 190th day after the
Closing Date, Twin may elect to purchase from the Purchaser by notifying the
Purchaser in writing (the "Call Notice"), and upon such election the Purchaser
will be required to sell to Twin (the "Call Right") all (but not less than all)
of the Shares for a cash price per share equal to the greater of (i) the Average
Market Price of the Common Stock, calculated with the date of determination
being the day immediately following the tenth Trading Day after Twin delivers
the Call Notice to the Purchaser, and (ii) $16 (as adjusted for stock splits,
stock dividends and recapitalization); provided that, the full cumulative
dividends shall have been paid or declared and set apart for payment upon all
Shares for all past dividend periods. Twin shall make any such redemption
payment by wire transfer to an account specified by Purchaser on the first
Business Day following the expiration of the 30th day after the Purchaser
receives the Call Notice; provided, that if subsequent to receiving such payment
Purchaser shall become entitled to additional consideration pursuant to the
proviso to the first sentence of this Section 2.4, then the Company shall
promptly (but in any event within five business days) make payment of such
additional consideration to Purchaser. The Company's Call Right under this
Section 2.4 shall terminate on the Shareholder Approval Date.
(b) If Twin exercises its Call Right pursuant to Section 2.4(a), the
Purchaser or any other member of the First Reserve Group may purchase common
stock of the Company in the open market, any equity offering of the Company, or
otherwise up to the same number of shares purchased pursuant to the execution of
the Call Right.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company and Twin jointly and severally represent and warrant to the
Purchaser as follows:
Section 3.1 ORGANIZATION. Each of the Company and the Subsidiaries is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all requisite corporate or other power and
authority to own its properties and conduct its business as now conducted and as
described in the Annual Report; each of the Company and the Subsidiaries is
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duly qualified to do business and is in good standing in all other jurisdictions
where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified would
not have a Material Adverse Effect.
Section 3.2 CAPITALIZATION. (a) As of the Closing Date, the Company
will have the authorized, issued and outstanding capitalization set forth in the
SEC Reports (other than any changes due to the exercise of outstanding stock
options or to the conversion of convertible indebtedness). Except as disclosed
in the SEC Reports, there are no outstanding (i) securities or obligations of
the Company convertible into or exchangeable for any capital stock of the
Company, (ii) 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 (iii) 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 Securities Act or exempt from the
registration requirements of the Securities 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 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. All of the
outstanding shares of capital stock of the Company and each of the Subsidiaries
have been, and as of the Closing Date will be, duly authorized and validly
issued, are fully paid and nonassessable and were not and will not be issued in
violation of any preemptive or similar rights and are owned directly or
indirectly by the Company, subject to such minimum minority ownership interests
in the non-U.S. Subsidiaries as may be required under applicable law; except as
set forth in the Prospectus and the SEC Reports and except for liens granted in
favor of the lenders under the Company's credit facility and lenders to the
Subsidiaries, all of the outstanding shares of capital stock of the Subsidiaries
will be free and clear of all liens, encumbrances, equities and claims or
restrictions on transferability ("Liens") (other than those imposed by the
Securities Act and the securities or "Blue Sky" laws of certain jurisdictions).
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.
(b) Upon receipt by the Company of the Purchase Price, the Shares
shall be duly authorized, validly issued, fully paid and non-assessable. At the
Closing, the Shares shall have been duly authorized for issuance by all
requisite corporate and other action and shall have been approved and on the
Shareholder Approval Date, listed for trading on the New York Stock Exchange.
(c) All of the outstanding capital stock of Twin is owned
beneficially and of record by the Company. Twin is a Subsidiary of the Company.
Section 3.3 POWER AND AUTHORITY; ENFORCEABILITY. (a) The Company has
all requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement and to engage in and perform the Transactions.
This Agreement and the Transactions have been duly and validly authorized by the
Company and, when executed and delivered in accordance with its terms (assuming
the due authorization, execution and delivery by the Purchaser), this Agreement
will have been duly executed and delivered and will constitute a valid and
legally binding agreement
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of the Company, enforceable against the Company in accordance with its terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor may
be brought (regardless of whether such enforcement is considered in a proceeding
in equity or at law)
(b) The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under the Shareholders
Agreement. The Shareholders Agreement has been duly and validly authorized by
the Company and, when executed and delivered by the Company (assuming due
authorization, execution and delivery by the Purchaser), will have been duly
executed and delivered and will constitute a valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its terms,
except that (i) the enforcement thereof may be subject to (A) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and (B)
general principles of equity and the discretion of the court before which any
proceeding therefor may be brought (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and (ii) any rights to indemnity
or contribution thereunder may be limited by federal and state securities laws
and public policy considerations.
Section 3.4 CONSENTS AND APPROVALS. (a) The execution and delivery of
this Agreement, the Shareholders Agreement, the issuance and sale of the Shares,
the performance of this Agreement, the Shareholders Agreement, and the
consummation of the transactions contemplated hereby and thereby will not
require any consent, approval, authorization or other order of any court, or
other Governmental Authority (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, result in a breach of or violate any
of the terms or provisions of, or constitute a default or cause an acceleration
of any obligation under, (i) the charter or bylaws of the Company or any
Subsidiary, (ii) any bond, note, debenture or other evidence of indebtedness or
any indenture, mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any Subsidiary is a party or by which any of
them is bound, or to which any of the property or assets of the Company or any
Subsidiary is subject, which could reasonably be expected to have a Material
Adverse Effect, (iii) any Permit or statute, judgment, decree, order, rule or
regulation of any court or governmental agency or body applicable to the
Company, the Subsidiaries or any of their respective properties or assets, or
(iv) subject to the accuracy of Purchaser's representations and warranties
herein, violate or conflict with any applicable foreign, 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 their respective
properties.
(b) Neither the Company nor any Subsidiary is in violation of or
in default under (i) its charter or bylaws or (ii) any bond, debenture, note or
any other evidence of indebtedness or any indenture, mortgage, deed of trust or
other contract, lease or other instrument to which it is a party or by which it
is bound, or to which any of its property or assets is subject, which could
reasonably be expected to have a Material Adverse Effect. No contract or other
document of a character required to be described in the SEC Reports or to be
filed as an exhibit to the SEC Reports is not so described or filed as required.
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(c) The Board of Directors of the Company has taken all action
required to be taken by it in order to exempt this Agreement and the
Transactions from, and this Agreement and the Transactions are exempt from, the
requirements of any "moratorium," "control share," "fair price," "affiliate
transaction," "business combination" or other antitakeover laws and regulations
of any state, including, without limitation, the State of Louisiana, and as a
result, any requirements of such antitakeover laws and regulations are
inapplicable to this Agreement and the Transactions.
Section 3.5 COMMISSION REPORTS. The Company has made all filings
required to be made by it with the Securities and Exchange Commission (the
"Commission") pursuant to Sections 12, 13, 14 and 15 of the Exchange Act. All of
such filings, and all filings made by the Company with the Commission pursuant
to such sections, rules and regulations although not required to be made,
complied in all material respects, as to both form and content, with all
applicable requirements of the Securities Act or the Exchange Act and the rules
and regulations thereunder, as applicable, and, at the time of filing, did not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. The Prospectus, the
SEC Reports and the Incorporated Documents heretofore filed were filed in a
timely manner and, when they were filed (or, if any amendment with respect to
any such document was filed, when such amendment was filed), conformed in all
material respects, as to both form and content, to the requirements of the
Securities Act or Exchange Act, as applicable; and any further SEC Reports and
Incorporated Documents filed prior to the Closing will, when so filed, be filed
in a timely manner and conform in all material respects, as to both farm and
content, to the requirements of the Exchange Act.
Section 3.6 FINANCIAL STATEMENTS. (a) PricewaterhouseCoopers LLP, 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 SEC Reports, are independent public
accountants with respect to the Company and the Subsidiaries, as required by the
Securities Act and the Exchange Act. Ernst & Young Audit, Price Waterhouse and
Pistrelli, Diaz & Associados are independent public accountants with respect to
certain Subsidiaries of the Company. The consolidated financial statements,
together with related schedules and notes, set forth or incorporated by
reference in the SEC Reports comply as to form in all material respects with the
requirements of the Securities Act and the Exchange Act, as applicable. Such
financial statements fairly present 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
SEC Reports, historical and pro forma, are, in all material respects, accurate
and prepared on a basis consistent with such financial statements and the books
and records of the Company. Each of the Company and its Subsidiaries keeps books
and records that fairly reflect its assets and maintains internal accounting
controls which provide reasonable assurance that (i) transactions are executed
in accordance with management's authorization, (ii) 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, (iii) access to the
assets of the Company and each of its Subsidiaries is permitted only in
accordance with management's authorization, and (iv) the recorded accountability
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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.
(b) As of the Closing Date after giving effect to the transaction
set forth herein, Twin's net worth will not be less than $100 million. Twin
keeps books and records that fairly reflect its assets and maintains internal
accounting controls which provide reasonable assurance that (1) transactions are
executed in accordance with management's authorization, (2) transactions are
recorded as necessary to permit preparation of Twin's unconsolidated financial
statements in accordance with generally accepted accounting principles and to
maintain accountability for the assets of Twin, (3) access to the assets of Twin
is permitted only in accordance with management's authorization, and (4) the
recorded accountability for assets of Twin is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
material differences.
Section 3.7 LITIGATION. Except as disclosed in the SEC Reports, 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 SEC Reports, or which could reasonably be expected to
have a Material Adverse Effect, or materially and adversely affect the
performance of the Company's obligations pursuant to this Agreement and, to the
best of the Company's knowledge, no such proceedings are contemplated or
threatened. No action has been taken with respect to the Company or any
Subsidiary, and no statute, rule or regulation or order has been enacted,
adopted or issued by any governmental agency and 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 prevents the issuance of the
Shares, 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 Shares or (b) in any
manner invalidate this Agreement.
Section 3.8 INTELLECTUAL PROPERTY. The Company and the Subsidiaries own
or possess the right to use all patents, trademarks, trademark registrations,
service marks, service mark registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the Annual Report 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 right of the Company and the Subsidiaries
with respect to the foregoing.
Section 3.9 PERMITS. The Company and each of its Subsidiaries has such
Permits including, without limitation, under any Environmental Laws, issued by
Governmental Authorities as are, in all material respects, necessary to own,
lease and operate their respective properties and to conduct their respective
businesses; the Company and each of its Subsidiaries has fulfilled and performed
all of its material obligations with respect to such Permits and no event has
occurred which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results or would result in any other material
impairment of the rights of the holder of any such Permit; and, except as
described in the Annual Report, such Permits contain no restrictions that are
materially burdensome to the Company and its Subsidiaries considered as a whole.
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Section 3.10 NO ADVERSE CHANGE; ABSENCE OF LIABILITIES. Except as
disclosed in the SEC Reports, subsequent to the respective dates as of which
information is given in the Annual Report, (a) 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, (b) there has
been no decision or judgment in the nature of litigation adverse to the Company
or any Subsidiary that could reasonably be expected to have a Material Adverse
Effect, and (c) 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").
Section 3.11 TAX RETURNS. All material tax returns required to be filed
by the Company and the Subsidiaries in every jurisdiction have been filed, other
than those filings being contested in good faith, and, except as disclosed in
the Annual Report, 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.
Section 3.12 PROPERTIES AND CONTRACTS. Except as otherwise set forth
in the Annual Report or such as would not have a Material Adverse Effect, the
Company and each Subsidiary has good and marketable title, free and clear of all
Liens (except Liens for taxes not yet due and payable), to all property and
assets described in the Annual Report 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.
Section 3.13 ENVIRONMENTAL MATTERS. Except as would not, individually
or in the aggregate, have a Material Adverse Effect (a) neither the Company nor
any Subsidiary is in violation of any foreign, Federal, state or local laws and
regulations relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), including, without limitation, laws
and regulations relating to emissions, discharges, releases or threatened
releases of toxic or hazardous substances, materials or wastes, or petroleum and
petroleum products ("Materials of Environmental Concern"), or otherwise relating
to the storage, disposal, transport or handling of Materials of Environmental
Concern (collectively, "Environmental Laws"), which violation includes, but is
not limited to, noncompliance with any permits or other governmental
authorizations; (b) neither the Company nor any Subsidiary has received any
communication (written or oral), whether from a governmental authority or
otherwise, alleging any such violation or noncompliance, and there are no
circumstances, either past, present or that are reasonably foreseeable, that may
lead to such violation in the future; (c) there is no pending or threatened
claim, action, investigation or notice (written or oral) by any person or entity
alleging potential liability for investigatory, cleanup, or governmental
responses costs, or natural resources or property damages, or personal injuries,
attorney's fees or penalties relating to (i) the presence, or release into the
environment, of any Materials of
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Environmental Concern at any location owned or operated by the Company or any
Subsidiary, now or in the past, or (ii) 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.
Section 3.14 LABOR MATTERS. Except as would not have a Material Adverse
Effect, (a) neither the Company nor any Subsidiary is in material violation of
any Federal, state or local law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable wage or hour laws nor any
provisions of the Employee Retirement Income Security Act of 1974, as amended,
or the rules and regulations promulgated thereunder, (b) there is no unfair
labor practice complaint pending against the Company or any Subsidiary or, to
the best knowledge of the Company, threatened against any of them, before the
National Labor Relations Board or any state or local labor relations board, and
(c) there is no labor dispute in which the Company or any Subsidiary is involved
nor, to the best knowledge of the Company, is any labor dispute imminent, other
than routine disciplinary and grievance matters.
Section 3.15 INSURANCE. The Company and its Subsidiaries maintain what
they believe to be reasonably adequate insurance coverage for those risks that
the Company believes to be customarily insured against by companies in the same
business.
Section 3.16 NO INVESTMENT COMPANY. The Company is not an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
Section 3.17 REGISTRATION RIGHTS; PUT RIGHTS. Except for the
Shareholders Agreement and the Registration Rights Agreements between the
Company and (i) Paul A. Bragg, (ii) Ackermans & van Haaran Group and Soletanche
Group, and (iii) DWC Amethyst N.V., a true, correct and complete copy of each of
which has been furnished to the Purchaser, no holder of any security of the
Company has any right to require registration of shares of the Common Stock or
any other security of the Company. Except as provided herein, Twin has not
granted any Person the right to sell or put to Twin any capital stock of the
Company or its Affiliates.
Section 3.18 NO INTEGRATION. Neither the Company nor any of the
Subsidiaries nor any of their respective Affiliates (as defined in Rule 501(b)
of Regulation D under the Securities Act) has directly, or through any agent,
(a) sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of any "security" (as defined in the Securities Act) which is or could
be integrated with the sale of the Shares in a manner that would require the
registration under the Securities Act of the Shares or (b) engaged in any form
of general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) in connection with the offering of the
Shares or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
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Section 3.19 NO REGISTRATION. It is not necessary in connection with
the offer, sale and delivery of the Shares to the Purchaser in the manner
contemplated by this Agreement to register any of the Shares under the
Securities Act or to register or qualify such offer, sale and delivery under any
applicable state "blue sky" or securities laws, based on available non-public
offering exemptions which are based, in part, on the representations of the
Purchaser in Section 4.3.
Section 3.20 BROKER'S OR FINDER'S COMMISSIONS. No broker's or finder's
fees or commissions will be payable by the Company or any of its Subsidiaries in
connection with the issuance and sale of the Shares or the Transactions.
Section 3.21 USE OF PROCEEDS; MARGIN REGULATIONS. All proceeds from the
issuance of Shares will be used by the Company only in accordance with the
provisions of Section 5.1. No part of the proceeds from the issuance of Shares
will be used by the Company to purchase or carry any margin stock" (within the
meaning of the regulations referred to in the following sentence) or to extend
credit to others for the purpose of purchasing or carrying any "margin stock."
Neither the purchase of the Shares nor the use of the proceeds thereof will
violate or be inconsistent with the provisions of regulations of the Board of
Governors of the Federal Reserve System regulating the use of margin credit.
Section 3.22 NO ILLEGAL OR IMPROPER TRANSACTIONS. Neither the Company
nor any Subsidiary has, nor has any director, officer or employee of the Company
or any Subsidiary, directly or indirectly, used funds or other assets of the
Company or any Subsidiary, or made any promise or undertaking in such regard,
for (a) illegal contributions, gifts, entertainment or other expenses relating
to political activity; (b) illegal payments to or for the benefit of
governmental officials or employees, whether domestic or foreign, (c) illegal
payments to or for the benefit of any person, firm, corporation or other entity,
or any director, officer, employee, agent or representative thereof; (d) gifts,
entertainment or other expenses that jeopardize the normal business relations
between the Company or any Subsidiary and any of its customers; (e) the
establishment or maintenance of a secret or unrecorded fund; or (f) participated
in or co-operated with an international boycott as defined in Section 999 of the
Internal Revenue Code of 1986; and there have been no knowingly false or
fictitious entries made in the books or records of the Company or any
Subsidiary.
Section 3.23 COMPLETENESS OF INFORMATION; ABSENCE OF MISSTATEMENTS AND
OMISSIONS. (a) The copies of written materials that the Company has delivered to
or made available to the Purchaser constitute true, complete and correct copies
of the originals thereof. The Company is not aware of any fact, matter or
circumstance that has not been disclosed to the Purchaser that does or may
render any such written materials untrue, inaccurate, or misleading in any
material respect (other than information contained in any such written materials
that updates or supplants portions of such written materials that were prepared
as of an earlier date).
(b) Neither the Prospectus as of the date thereof, the SEC
Reports, the Incorporated Documents nor any amendment or supplement thereto as
of the date thereof contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. No representation or warranty made by the Company
contained in this Agreement and no statement contained in any certificate, list,
exhibit or other instrument specified in
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this Agreement, contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.
Section 3.24 SOLVENCY. After giving effect to the grant of the Put
Right and assuming the payment of the Put Amount thereof, (a) the fair value of
the assets of Twin, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of Twin will be greater than the amount that will be required to
pay the probable liability in respect of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) Twin will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) Twin will not have unreasonably
small capital with which to conduct the businesses in which it is engaged as
such businesses are now conducted and are proposed to be conducted.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Sellers as follows:
Section 4.1 AUTHORITY. The Purchaser has all requisite partnership
power and authority to execute and deliver this Agreement and the Shareholders
Agreement and to consummate the Transactions to be performed by the Purchaser.
The execution and delivery of this Agreement and the Shareholders Agreement and
the consummation of the Transactions to be performed by the Purchaser have been
duly and validly authorized by all necessary action on the part of the General
Partner of the Purchaser, and no other partnership or similar proceedings are
necessary to authorize the execution and delivery of this Agreement and the
Shareholders Agreement by the Purchaser or to consummate the Transactions to be
performed by the Purchaser. This Agreement and the Shareholders Agreement have
been duly and validly executed and delivered by the Purchaser and, assuming this
Agreement and the Shareholders Agreement constitute valid and binding
obligations of the Company, each of this Agreement and the Shareholders
Agreement constitutes a valid and binding agreement of the Purchaser,
enforceable against it in accordance with its terms, except that the enforcement
thereof may be subject to (a) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, and (b) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
Section 4.2 CONSENTS AND APPROVAL; No Violation. Neither the execution
and delivery of this Agreement and the Shareholders Agreement by the Purchaser,
the consummation of the Transactions to be performed by the Purchaser, nor
compliance by the Purchaser, with any of the provisions hereof will (a) conflict
with or result in any breach of any provisions of the Agreement of Limited
Partnership of the Purchaser, (b) require any material consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Authority, except for consents, approvals, authorizations, permits, filings or
notifications which have been obtained or made, (c) result in a default (with or
without due notice or lapse of time or both) or give rise to any right of
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termination, cancellation or acceleration under any of the terms, conditions or
provisions of any material indentures or loan or credit agreements and
guaranties of any such obligations to which the Purchaser is a party or by which
the Purchaser or any of its assets may be bound, except for such defaults (or
rights of termination, cancellation or acceleration) as to which requisite
waivers or consents have been obtained, or (d) violate any material order, writ,
injunction, decree, statute, rule or regulation applicable to such Purchaser or
any of its assets.
Section 4.3 SECURITIES LAWS. The Purchaser has such knowledge and
experience in financial and business matters as enables it to evaluate the
merits and risks of an investment in the Shares. The Purchaser is an "accredited
investor" as such term is defined in Rule 501 under the Securities Act. The
Purchaser is acquiring the Shares for its own account and not with the view to
resale or redistribution thereof in violation of the Securities Act; provided
however, that the Purchaser shall at all times retain full power and authority
over the transfer of its properties and assets. The Purchaser acknowledges that
it may not transfer the Shares except pursuant to an effective registration
statement under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act, and that a legend to such
effect shall be included on the certificate representing the Shares.
Section 4.4. BROKER'S OR FINDER'S COMMISSIONS. No broker's or finder's
fees or commissions will be payable by the Purchaser in connection with the
issuance and sale of the Shares or the Transactions;
ARTICLE V
COVENANTS
Section 5.1 USE OF PROCEEDS. The entire amount of the cash proceeds
from the issuance of the Shares shall be (i) contributed to Twin to fund Twin's
acquisition of all the shares of Servicios Especiales San Antonio S.A. from
Perez Companc S.A. and Perez Companc International as contemplated by the letter
of intent dated March 1,2000 between the Company and such parties, and (ii) used
by the Company for general corporate purposes.
Section 5.2 CORPORATE EXISTENCE. For so long as the Purchaser or any of
the First Reserve Group Own Company Securities, the Company and Twin will do or
cause to be done all things necessary to preserve and keep in full force and
effect the corporate existence, rights (charter and statutory) and franchises of
the Company and each of the Subsidiaries; provided, however, that the Company or
Twin shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company, Twin and their Subsidiaries as a
whole and that the loss thereof is not disadvantageous in any material respect
to the Purchaser.
Section 5.3 COMPLIANCE WITH LAWS. For so long as the Purchaser or any
of the First Reserve Group Own Company Securities, the Company and Twin shall
and shall cause each of their Subsidiaries to comply with all applicable
federal, state and local laws, rules and regulations, including, without
limitation, Environmental Laws, except where failure to comply will not have a
Material Adverse Effect.
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Section 5.4 MAINTENANCE OF PROPERTIES AND PERMITS. For so long as the
Purchaser or any of the First Reserve Group Own Company Securities, the Company
and Twin will (a) cause all properties (except as to properties not operated by
the Company, Twin or a Subsidiary, as to which the Company and Twin shall use
their reasonable best efforts) owned by the Company, Twin or any of their
Subsidiaries or used or held for use in the conduct of its respective business
or the business of any Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, and (b) keep in full force and effect or obtain valid
Permits and fulfill and perform all obligations with respect to such Permits as
are necessary or advisable to the operation of the business of the Company, Twin
and the Subsidiaries, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company or Twin from discontinuing the maintenance of
any of such properties or Permits if such discontinuance is not disadvantageous
in any material respect to the Purchaser and would not have a Material Adverse
Effect.
Section 5.5 ACCESS TO INFORMATION. Between the date hereof and the
Closing Date, the Company and Twin will afford to the Purchaser and its
authorized representatives full access to the plant, offices, warehouses, or
other facilities and properties and to the books and records of the Company,
Twin and its Subsidiaries, will permit the Purchaser and its representatives to
make such reasonable inspections as they may require and will cause its officers
and those of their Subsidiaries to furnish the Purchaser and its representatives
with such financial and operating data, environmental assessment and other
information with respect to the business, assets and properties of the Company,
Twin and their Subsidiaries, as applicable, as the Purchaser and its
representatives may from time to time request. No inspection or examination by
the Purchaser or its representatives will constitute a waiver of any claim
against the Company or Twin for misrepresentation or breach of this Agreement.
The Purchaser shall hold strictly confidential all information obtained as a
result of such access; provided, that the Purchaser shall not be obligated to
hold confidential information which (a) was or becomes generally available to
the public other than as a result of a disclosure by the Purchaser or its
representatives, (b) was or becomes available to the Purchaser from a source
other than the Company, Twin or their representatives, provided that such source
is not bound by a confidentiality agreement with the Company, Twin or their
Subsidiaries or otherwise prohibited from transmitting the information to the
Purchaser, or (c) is required to be disclosed in order to comply with any
applicable law, order, regulation or ruling or the rules of any national
securities exchange.
Section 5.6 SEC FILINGS. For so long as the Purchaser or any of the
First Reserve Group Own Company Securities, the Company covenants and agrees
that it will (a) maintain on a current basis the filing of all reports required
to be filed by the Company pursuant to the Exchange Act and the rules and
regulations thereunder and promptly deliver to the Purchaser copies of all such
reports; (b) use its reasonable best efforts to achieve and maintain
qualification for the use of Form S-3 (or any successor form) under the
Securities Act; and (c) cooperate with the Purchaser whenever the Purchaser
wishes to dispose of any securities of the Company owned by it or any of the
First Reserve Group under Rule 144 and/or Rule 144A under the Securities Act,
to the full extent feasible in order to consummate such disposition.
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Section 5.7 APPROPRIATE ACTION; CONSENTS; FILINGS. The Company, Twin
and the Purchaser shall each use its reasonable best efforts promptly (a) to
take, or cause to be taken, all appropriate action and do, or cause to be done,
all things necessary, proper or advisable under applicable law or otherwise to
consummate and make effective the Transactions as contemplated by this Agreement
and the Shareholder Agreement in an expeditious manner, (b) to obtain from any
Governmental Authority any consents, licenses, permits, waivers, approvals,
authorizations or orders required to be obtained by the Company, Twin or the
Purchaser, respectively, in connection with the authorization, execution,
delivery and performance of this Agreement, the consummation of the Transactions
contemplated hereby, and the Shareholder Agreement, (c) to make all necessary
filings, and thereafter make any other required submissions, with respect to
this Agreement, the Transactions, and the Shareholder Agreement and any other
transactions contemplated hereby or thereby required under any applicable Law;
provided that the Company, Twin and the Purchaser shall cooperate with each
other in connection with the making of all such filings. The Company and Twin
shall furnish all information reasonably requested by the Purchaser for any
application or other filing to be made pursuant to any applicable law in
connection with the transactions contemplated by this Agreement, and the
Shareholder Agreement.
Section 5.8 CONDUCT OF BUSINESS PENDING CLOSING. During the period from
the date of this Agreement and continuing until the Closing Date, the Company
agrees that:
(a) Except as provided in this Agreement and for borrowings under
existing credit facilities, the Company shall, and shall cause each Subsidiary
to, (i) carry on its business in the usual, regular and ordinary course in a
manner consistent with its past practices and in compliance with all applicable
laws, rules and regulations and (ii) preserve its business organization,
maintain its rights and franchises, keep available the services of its officers
and key employees and preserve the goodwill and its relationships with
customers, suppliers and others having business dealings with them. The Company
shall preserve, and shall cause each Subsidiary to preserve, in full force and
effect all material leases, operating agreements, Permits, licenses, Contracts
and other material agreements which relate to the business, properties or assets
of the Company or such Subsidiary (other than those expiring by their terms) and
perform all material obligations of the Company or such Subsidiary in or under
any of such leases, agreements and Contracts relating to such assets.
(b) The Company shall not, and shall not permit any Subsidiary
to, (i) declare or pay any dividend on or make any other distribution in respect
of any of its capital stock, (ii) split, combine or reclassify any of its
capital stock or issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for shares of, its capital stock,
(iii) purchase, redeem or otherwise acquire any shares of its capital stock, or
(iv) take any preliminary action with respect to the foregoing.
(c) The Company shall not, and shall not permit any Subsidiary
to, (i) issue, deliver, sell or authorize the issuance, delivery or sale of any
shares of its capital stock of any class or any securities convertible into or
exchangeable for, or rights, warrants or options to acquire, any such shares or
convertible or exchangeable securities (other than options to acquire Common
Stock under existing employee benefit plans of the Company), or (ii) enter into
any agreement or understanding or take any preliminary action with respect to
the foregoing.
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(d) The Company shall not, and shall not permit any Subsidiary
to, (i) amend its Articles of Incorporation or Bylaws, or similar organizational
documents, or (ii) enter into any agreement or incur any obligation, the terms
of which would be violated by the consummation of the transactions contemplated
by this Agreement.
Section 5.9 NO IMPAIRMENT. The Company and Twin each will not, by
amendment of its respective Articles of Incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities, dividend, debt incurrence or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company and the Twin, but will at all
times in good faith assist in the carrying out of all the provisions herein and
in taking of all such action as may be necessary or appropriate in order to
protect the Put Right of the Purchaser against impairment.
Section 5.10 RECOMMENDATION TO SHAREHOLDERS. In connection with the
1999 annual meeting of the shareholders of the Company occurring after the date
hereof, the Board of Directors of the Company covenants to (i) submit for the
approval of the shareholders of the Company resolutions approving the issuance
and purchase of the Shares on the terms set forth herein; provided that the
Company shall provide the Purchaser with a copy of such resolutions and related
proxy materials for the Purchaser's review and comment at least 5 Business Days
prior to submitting such resolutions to the shareholders; (ii) recommend that
the shareholders of the Company vote in favor of such resolutions and (iii) use
all reasonable endeavors to obtain the aforementioned approval.
Section 5.11 NO SENIOR PUT RIGHTS. After the date hereof, the Company
shall not grant, and the Company shall not permit any Subsidiary to grant, to
any Person owning, directly or indirectly, any capital stock of the Company or
any of its Subsidiaries, any put, redemption or similar rights that will require
Twin to purchase from such Person any capital stock of the Company or any
options or warrants exercisable into such capital stock (i) in preference to
Purchaser's Put Right set forth in Section 2.3 or (ii) exercisable before the
30th day after the first anniversary of the date hereof. The Company shall
notify the Purchaser upon any grant of any put right after the date hereof.
ARTICLE VI
PURCHASER'S CONDITIONS
The obligations of the Purchaser to effect the closing of the Shares on
the Closing Date are subject to the satisfaction of the following conditions any
one or more of which may be waived in writing by the Purchaser.
Section 6.1 REPRESENTATIONS AND COVENANTS. The representations and
warranties contained in Article III hereof, to the extent qualified by
materiality shall be true and correct in all respects and to the extent not so
qualified, shall be true and correct in all material respects, in each case on
and as of the Closing Date as if made, and shall be deemed to have been remade,
on and as of the Closing Date. The Company shall have complied with all of its
obligations contained herein
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the performance of which is required on or prior to the Closing Date. The
Purchaser shall have received a certificate to the foregoing effect executed by
an executive officer of the Company.
Section 6.2 SHAREHOLDERS AGREEMENT. The Shareholders Agreement in the
form of Exhibit A shall have been duly adopted by all requisite corporate
action, executed and delivered by the Company and be in full force and effect.
Section 6.3 COMPANY CAUSED MATERIAL ADVERSE CHANGE. Since December 31,
1999, there shall have occurred no event, act, or condition caused by or arising
from an act or omission of the Company or any Subsidiary which has resulted in,
or could reasonably be expected to result in, a Material Adverse Change.
Section 6.4 REQUIRED CONSENTS, APPROVALS AND FILINGS. All consents,
approvals and waivers necessary to the consummation of the purchase and sale of
the Shares and the Transactions or as otherwise requested by the Purchaser
(other than the approval of the shareholders of the Company described in Section
5.9) shall have been obtained.
Section 6.5 NEW YORK STOCK EXCHANGE APPROVAL. All applications and
related exhibits and other materials necessary for the approval of the listing
and trading on the New York Stock Exchange of the Shares shall have been filed
with and approved by the New York Stock Exchange.
Section 6.6 PAYMENTS. The Company shall have paid to or on behalf of
the Purchaser all amounts payable pursuant to Section 11.6.
Section 6.7 OPINIONS OF COUNSEL. The Purchaser shall have received (i)
an opinion of Baker Botts L.L.P. at the Closing, in the form attached hereto as
Exhibit B, and (ii) an opinion of Sher Garner Cahill Richter Klein McAlister &
Hilbert, L.L.C. at the Closing, in the form attached hereto as Exhibit C.
Section 6.8 ADDITIONAL DOCUMENTS. The Purchaser shall have received
such other certificates, instruments and documents from the Company and each
Subsidiary as it may reasonably request pursuant to this Agreement.
ARTICLE VII
COMPANY'S CONDITIONS
The obligations of the Company to issue and sell the Shares subject to
the satisfaction of the following conditions any one or more of which may be
waived by the Company:
Section 7.1 REPRESENTATIONS AND COVENANTS. The representations and
warranties contained in Article IV hereof, to the extent qualified by
materiality shall be true and correct in all respects and to the extent not so
qualified, shall be true and correct in all material respects, in each case on
and as of the Closing Date as if made, and shall be deemed to be remade, on and
as of the Closing Date. The Purchaser shall have complied with all of its
obligations contained herein performance of which is required on or prior to the
Closing Date. The Company shall have received a certificate to the foregoing
effect executed by an officer of the General Partner of the Purchaser.
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Section 7.2 SHAREHOLDERS AGREEMENT. The Shareholders Agreement in the
form of Exhibit A shall have been duly adopted by all requisite corporate
action, executed and delivered by the Purchaser and be in full force and effect.
Section 7.3 REQUIRED CONSENTS AND APPROVALS. All consents, approvals
and waivers necessary to the consummation of the purchase and sale of the Shares
and the Transactions (other than the approval of the shareholders of the Company
described in Section 5.10) shall have been obtained.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
Section 8.1 TERMINATION. The transactions contemplated hereby maybe
abandoned at any time prior to the Closing, as follows;
(a) by the mutual written consent of the Company, Twin and the
Purchaser;
(b) by the Company and Twin, on one hand, or the Purchaser, on
the other hand, if there shall have been a breach by the other party of any of
the covenants contained herein or if any representation or warranty made by any
other party is untrue in any material respect, in either case in a manner not
capable of being cured on or before March 31, 2000.
Section 8.2 SURVIVAL; FAILURE TO CLOSE. All representations,
warranties, indemnities, and covenants contained herein or made in writing by
any party in connection herewith will survive the execution and delivery of this
Agreement and any investigation made at any time by or on behalf of Purchaser,
except that any claim for a breach of a representation or warranty must be
brought within the period set forth in Section 10.4. Notwithstanding anything
herein to the contrary, in the event the funding by Purchaser of its investment
has not occurred on or before March 31,2000, because one or more conditions set
forth in Article VI or Article VII has not been satisfied, either party may
terminate its obligations under this Agreement by written notice to, the
other; provided, however, that the provisions of this Section 8.2 and Section
11.6 shall survive any such termination; provided further, however that no party
may terminate this Agreement if such funding has failed to occur because such
party (or any Affiliate thereof) willfully or negligently fails to perform or
observe its material agreements and covenants hereunder.
ARTICLE IX
OTHER PROVISIONS
Section 9.1 BROKERAGE FEES AND COMMISSIONS. Each party agrees to pay,
and to indemnify and hold harmless the other party from and against liability
for, any compensation to any finder, broker, agent, financial advisor, or other
intermediary (collectively, an "Intermediary") retained by such party, or any
other Intermediary in connection with the transactions contemplated by this
Agreement, and the fees and expenses of defending against such liability or
alleged liability.
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Section 9.2 PUBLIC ANNOUNCEMENTS. The Company and the Purchaser (a)
will consult with each other before issuing any press release or otherwise
making any public statements with respect to the existence of this Agreement or
the Transactions and (b) shall not issue any press release or make any public
statement prior to such consultation, except in the case of clause (b) as may be
required by law or by obligations pursuant to any listing agreements between the
Company and The New York Stock Exchange.
ARTICLE X
INDEMNIFICATION
Section 10.1 INDEMNIFICATION BY THE COMPANY. The Company shall in
addition to any such rights which any Purchaser Indemnified Party (as defined
herein) may have pursuant to statute, the Company's Articles of Incorporation or
other organizational or constituent documents of the Company, or otherwise,
indemnify and hold harmless the Purchaser (including its subsidiaries,
Affiliates, designees and persons serving as officers, directors, partners,
employees, representatives and agents, each a "Purchaser Indemnified Party")
from and against any and all losses, claims, damages, taxes, fines, penalties,
costs, expenses and liabilities, joint or several, including any investigation,
legal and other expenses incurred in connection with the investigation, defense,
settlement or appeal of, and any amount paid in settlement of, any action, suit
or proceeding or any claim asserted ("Losses" or "Loss"), to which they, or any
of them, may suffer or incur which arise or result from the breach of any
representation, warranty, covenant or agreement of the Company under this
Agreement (except as limited by Section 10.4) or in any certificate, schedule or
exhibit delivered pursuant hereto, or by reason of any claim, action or
proceeding arising out of or resulting from a breach of such representations,
warranties covenants or agreements.
Section 10.2 INDEMNIFICATION BY THE PURCHASER. The Purchaser shall in
addition to any such rights which any Company Indemnified Party (as defined
herein) may have pursuant to statute, or otherwise, indemnify and hold harmless
the Company (including its subsidiaries, Affiliates, designees and persons
serving as officers, directors, partners, employees, representatives and agents,
each a "Company Indemnified Party") from and against any and all Losses, to
which they, or any of them, may suffer or incur which arise or result from the
breach of any representation, warranty, covenant or agreement of the Purchaser
under this Agreement or in any certificate, schedule or exhibit delivered
pursuant hereto, or by reason of any claim, action or proceeding arising out of
or resulting from a breach of such representations, warranties covenants or
agreements.
Section 10.3 INDEMNIFICATION PROCEDURES. Any Purchaser Indemnified
Party or Company Indemnified Party that proposes to assert the right to be
indemnified under this Article X (for purposes of this Section 10.3 such
initiating Purchaser Indemnified Party or Company Indemnified Party shall be
referred to as the "Indemnified Party") shall, promptly after receipt of notice
of commencement of any claim or action against such Indemnified Party or upon
the discovery by such Indemnifying Party of the Loss suffered by it, in either
case in respect of which a claim is to be made against the other party hereto
(the "Indemnifying Party") under Section 10.1 or Section 10.2, as the case may
be, notify the Indemnifying Party of the commencement of such action or the
occurrence of such Loss, enclosing a copy of all papers served or a brief
description of the facts resulting in such Loss, but the omission so to notify
the Indemnifying Party shall not relieve the Indemnifying Party from any
liability that the Indemnifying Party may have to any Indemnified Party under
the
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foregoing provisions of this Article X unless, and only to the extent that, such
omission results in the forfeiture of substantive rights or defenses by the
Indemnifying Party. The Indemnified Party shall have the right to retain its own
counsel in any such action and all reasonable fees, disbursements and other
charges incurred in the investigation, defense and/or settlement of such action
shall be advanced and reimbursed by the Indemnifying Party promptly as they are
incurred; provided, however, that the Indemnified Party shall agree to repay any
expenses so advanced hereunder if it is ultimately determined by a court of
competent jurisdiction that the Indemnified Party to whom such expenses are
advanced is not entitled to be indemnified as a matter of law. So long as the
Indemnified Party has reasonably concluded that no conflict of interest exists
and that the Indemnifying Party is financially capable of fulfilling its
obligations under this Article X, the Indemnifying Party may assume the defense
of any action hereunder with counsel reasonably satisfactory to the Indemnified
Party; provided, however, that the Indemnifying Party shall not settle any
action or claim for which indemnification is sought under this Article X without
the prior written consent of the Indemnified Party. In the event that the
Indemnifying Party does not assume defense of any action, it shall nonetheless
have the right to participate in (but not control) such action. The Indemnifying
Party shall not be liable for any settlement of any action or claims effected
without its written consent; provided that if such consent is withheld and
such action or claims are subsequently settled or prosecuted for a greater
amount, such Indemnifying Party shall be liable for the full amount of such
losses, damages, liabilities and expenses (including without limitation any
interest and penalties related thereto) without regard to any limitations on
indemnification set forth in this Article X.
Section 10.4 TERMINATION. The Company's and Twin's representations set
forth in Sections 3.8, 3.9, 3.11, 3.12, 3.14, 3.15, 3.16, and 3.21 shall
terminate at the Closing Date, and no claim for indemnification for any Loss for
any breach thereof may be brought after the Closing Date. The Company's
obligation to indemnify the Purchaser, and the Purchaser's obligation to
indemnify the Company, in each case as set forth in this Section 10 shall
terminate as to any Loss asserted after the close of business in Houston, Texas
on the first anniversary of the Closing Date, other than any Loss suffered as a
result of the breach of any representation of the Company contained in Sections
3.2, 3.3 and 3.23, which may be asserted indefinitely, or as a result of the
agreement set forth in Section 11.6, which may be asserted indefinitely.
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ARTICLE XI
MISCELLANEOUS
Section 11.1 DISPUTE RESOLUTION. (a) Agreement to Arbitrate. If
Purchaser and the Company are unable to resolve any controversy, dispute, claim
or other matter in question arising out of, or relating to, this Agreement, the
Shareholders Agreement, any provision hereof or thereof, the alleged breach
hereof or thereof, or in any way relating to the subject matter of this
Agreement, the Transactions or the relationship between the parties created by
this Agreement, including questions concerning the scope and applicability of
this Section 11.1, whether sounding in contract, tort or otherwise, at law or in
equity, under State or federal law, whether provided by statute or common law,
for damages or any other relief (any such controversy, dispute, claim or other
matter in question, a "Dispute"), on or before the 30th day following the
receipt by the Company or Purchaser of written notice of such Dispute from the
other party(ies), which notice describes in reasonable detail the nature of the
dispute and the facts and circumstances relating thereto, the Company or
Purchaser may, by delivery of written notice to the other party(ies), require
that a senior officer of the Company and of the General Partner of the Purchaser
meet at a mutually agreeable time and place in an attempt to resolve such
Dispute. Such meeting shall take place on or before the 15th day following the
date of the notice requiring such meeting, and if the Dispute has not been
resolved within 15 days following such meeting, the Company or Purchaser may
cause such Dispute to be resolved by binding arbitration in Houston, Texas, by
submitting such Dispute for arbitration within 30 days following the expiration
of such 15-day period. This agreement to arbitrate shall be specifically
enforceable against the parties.
(b) The Arbitration Shall be Governed by and Conducted
Pursuant to the Federal Arbitration Act: It is the intention of the parties that
the arbitration shall be governed by and conducted pursuant to the Federal
Arbitration Act, as such Act is modified by this Section 11.1. If it is
determined the Federal Arbitration Act is not applicable to this Agreement
(e.g., this Agreement does not evidence a transaction involving interstate
commerce), this agreement to arbitrate shall nevertheless be enforceable
pursuant to applicable state law. While the arbitrators may refer to Commercial
Arbitration Rules of the American Arbitration Association for guidance with
respect to procedural matters, the arbitration proceeding shall not be
administered by the American Arbitration Association but instead shall be
self-administered by the parties until the arbitrators are selected and then the
proceeding shall be administered by the arbitrators.
(c) Authority of the Arbitrators: The validity, construction,
and interpretation of this agreement to arbitrate, and all procedural aspects of
the arbitration conducted pursuant to this agreement to arbitrate, including but
not limited to, the determination of the issues that are subject to arbitration
(i.e., arbitrability), the scope of the arbitrable issues, allegations of "fraud
in the inducement" to enter into this Agreement or this arbitration provision,
allegations of waiver, laches, delay or other defenses to arbitrability, and the
rules governing the conduct of the arbitration (including the time for filing an
answer, the time for the filing of counterclaims, the times for amending the
pleadings, the specificity of the pleadings, the extent and scope of discovery,
the issuance of subpoenas, the times for the designation of experts, whether the
arbitration is to be stayed pending resolution of related litigation involving
third parties not bound by this arbitration agreement, the receipt of evidence,
and the like), shall be decided by the arbitrators.
(d) Choice of Law: The rules of arbitration of the Federal
Arbitration Act, as modified by this Agreement, shall govern procedural aspects
of the arbitration; to the extent the Federal Arbitration Act as modified by
this Agreement does not address a procedural issue, the
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arbitrators may refer for guidance to the Commercial Arbitration Rules then in
effect with the American Arbitration Association. The arbitrators may refer for
guidance to the Federal Rules of Civil Procedure, the Federal Rules of Civil
Evidence, and the federal law with respect to the discovery process, applicable
legal privileges, and admissible evidence. In deciding the substance of the
parties' Dispute, the arbitrators shall refer to the substantive laws of the
State of New York for guidance (excluding New York conflict-of-law rules or
principles that might call for the application of the law of another
jurisdiction). IT IS EXPRESSLY AGREED THAT NOTWITHSTANDING ANY OTHER PROVISION
IN THIS SECTION 11.1 TO THE CONTRARY, THE ARBITRATORS SHALL HAVE ABSOLUTELY NO
AUTHORITY TO AWARD CONSEQUENTIAL DAMAGES (SUCH AS LOSS OF PROFIT), TREBLE,
EXEMPLARY OR PUNITIVE DAMAGES OF ANY TYPE UNDER ANY CIRCUMSTANCES REGARDLESS OF
WHETHER SUCH DAMAGES MAY BE AVAILABLE UNDER NEW YORK LAW, THE LAW OF ANY OTHER
STATE, OR FEDERAL LAW, OR UNDER THE FEDERAL ARBITRATION ACT, OR UNDER THE
COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. The
arbitrators shall have the authority to assess the costs and expenses of the
arbitration proceeding (including the arbitrators' fees and expenses) against
either or both parties. However, each party shall bear its own attorneys fees
and the arbitrators shall have no authority to award attorneys fees.
(e) Selection of Arbitrators. When a Dispute has been
submitted for arbitration, within 30 days of such submission, the Company will
choose an arbitrator and Purchaser will choose an arbitrator. The two
arbitrators shall select a third arbitrator, failing agreement on which within
ninety days of the original notice, Purchaser and the Company (or either of
them) shall apply to any United States District Judge for the Southern District
of Texas, who shall appoint the third arbitrator. While the third arbitrator
shall be neutral, the two party-appointed arbitrators are not required to be
neutral and it shall not be grounds for removal of either of the two
party-appointed arbitrators or for vacating the arbitrators' award that either
of such arbitrators has past or present minimal relationships with the party
that appointed such arbitrator. Evident partiality on the part of an arbitrator
exists only where the circumstances are such that a reasonable person would have
to conclude there in fact existed actual bias and a mere appearance or
impression of bias will not constitute evident partiality or otherwise
disqualify an arbitrator. Minimal or trivial past or present relationships
between the neutral arbitrator and the party selecting such arbitrator or any of
the other arbitrators, or the failure to disclose such minimal or trivial past
or present relationships, will not by themselves constitute evident partiality
or otherwise disqualify any arbitrator. Upon selection of the third arbitrator,
each of the three arbitrators shall agree in writing to abide faithfully by the
terms of this agreement to arbitrate. The three arbitrators shall make all of
their decisions by majority vote. If one of the party-appointed arbitrators
refuses to participate in the proceedings or refuses to vote, the decision of
the other two arbitrators shall be binding. If an arbitrator dies or becomes
physically incapacitated and is unable to fulfill his or her duties as an
arbitrator, the arbitration proceeding shall continue with a substitute
arbitrator selected as follows: if the incapacitated arbitrator is a
party-appointed arbitrator, the party shall promptly select a new arbitrator,
and if the incapacitated arbitrator is the neutral arbitrator, the two-party
appointed arbitrators shall select a substitute neutral arbitrator, failing
agreement on which Purchaser and the Company (or either of them) shall apply to
any United States District Judge for the Southern District of Texas, who shall
appoint the substitute neutral arbitrator.
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(f) Final Hearing and Arbitrators' Award: The final hearing
shall be conducted within 120 days of the selection of the third arbitrator. The
final hearing shall not exceed ten working days, with each party to be granted
one-half of the allocated time to present its case to the arbitrators. There
shall be a transcript of the hearing before the arbitrators. The arbitrators
shall render their ultimate decision within twenty days of the completion of the
final hearing completely resolving all of the disputes between the parties that
are the subject of the arbitration proceeding. The arbitrators' ultimate
decision after final hearing shall be in writing, but shall be as brief as
possible, and the arbitrators shall assign their reasons for their ultimate
decision. In the case the arbitrators award any monetary damages in favor of
either party, the arbitrators shall certify in their award that they have not
included any treble, exemplary or punitive damages.
(g) Finality of the Arbitrators' Award: The arbitrators'
award shall, as between the parties to this Agreement and those in privity with
them, be final and entitled to all of the protections and benefits of a final
judgment, e.g., res judicata (claim preclusion) and collateral estoppel (issue
preclusion), as to all Disputes, including compulsory counterclaims, that were
or could have been presented to the arbitrators. The arbitrators' award shall
not be reviewable by or appealable to any court, except to the extent permitted
by the Federal Arbitration Act.
(h) Use of the Courts to Assist in the Enforcement of the
Arbitrators' Decisions and the Arbitrators' Award: It is the intent of the
parties that the arbitration proceeding shall be conducted expeditiously,
without initial recourse to the courts and without interlocutory appeals of the
arbitrators' decisions to the courts. However, if a party refuses to honor its
obligations under this agreement to arbitrate, the other party may obtain
appropriate relief compelling arbitration in any court having jurisdiction over
the parties; the order compelling arbitration shall require that the arbitration
proceedings take place in Houston, Texas, as specified above. The parties may
apply to any court for orders requiring witnesses to obey subpoenas issued by
the arbitrators. Moreover, any and all of the arbitrators' orders and decisions
may be enforced if necessary by any court. The arbitrators' award may be
confirmed in, and judgment upon the award entered by, any federal or State court
having jurisdiction over the parties.
(i) Confidentiality: To the fullest extent permitted by law,
this arbitration proceeding and the arbitrators award shall be maintained in
confidence by the parties. However, a violation of this covenant shall not
affect the enforceability of this arbitration agreement or of the arbitrators'
award.
(j) The Parties' Obligations under this Arbitration Provision
are Enforceable Even if the Agreement has Terminated or is Breached;
Severability: A party's breach of this Agreement shall not affect this agreement
to arbitrate. Moreover, the parties' obligations under this arbitration
provision are enforceable even after this Agreement has terminated. The
invalidity or unenforceability of any provision of this arbitration agreement
shall not affect the validity or enforceability of the parties' obligation to
submit their disputes to binding arbitration or the other provisions of this
agreement to arbitrate.
Section 11.2 ENTIRE AGREEMENT. This Agreement and the Shareholders
Agreement constitute the entire agreement among the parties with respect to the
subject matter hereof and
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supersede all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
Section 11.3 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by facsimile, with confirmation of receipt,
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties as follows:
If to the Company or Twin:
Pride International, Inc.
5847 San Felipe, Suite 3300
Houston, Texas 77057
Fax: 713-789-1430
Attn: Mr. Paul A. Bragg
President and Chief Executive Officer
With a copy to:
Baker Botts L.L.P.
910 Louisiana
Houston, Texas 77002
Fax: 713-229-1522
Attn: L. P. Thomas, Esq.
If to the Purchaser:
First Reserve Fund VIII, L.P.
do First Reserve Corp.
1801 California Street
Denver, Colorado 80202
Fax: 303-382-1275
Attn: Thomas Denison, Esq.
With a copy to:
Vinson & Elkins L.L.P.
1001 Fannin Street, 23rd Floor
Houston, Texas 77002-6760
Fax: 713-615-5605
Attn: Bruce C. Herzog, Esq.
Section 11.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws in the State of New York applicable to
agreements made and wholly performed in the State of New York.
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Section 11.5 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement unless the consummation of the Transactions contemplated
hereby is materially and adversely affected thereby.
Section 11.6 EXPENSES. Except as otherwise provided herein or in the
Shareholders Agreement, each party shall bear and pay all costs and expenses
incurred by it or on its behalf in connection with transactions contemplated
hereby, including fees and expenses of its representatives, provided, however,
that the Company shall pay all filing fees associated with all filings,
applications, notifications or requests for consent, approval or permission that
may be required by statute regulation or judicial decrees in connection with the
Transactions and shall also pay all of the Purchaser' legal fees, professional
fees and other transaction costs (collectively, the "Costs") incurred in
connection with the evaluation, preparation and negotiation of the Transactions
contemplated hereby.
Section 11.7 DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute
a part of and shall not be utilized in interpreting this Agreement.
Section 11.8 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same agreement.
Section 11.9 ASSIGNMENT. Except as provided in this Section 11.9,
neither of the Purchaser nor the Company may assign its rights or obligations
hereunder; provided, however; that (i) the Purchaser may assign its rights to
acquire the Shares to another member of the First Reserve Group, provided that
such assignment shall not relieve the Purchaser of its obligations hereunder;
and (ii) the Company may assign its obligations to deliver the Shares and its
rights to receive the Purchase Price therefor to a wholly owned subsidiary of
the Company, provided that such assignment shall not relieve the Company of its
obligations hereunder, and provided further that the Company shall deliver to
the Purchaser such opinions of counsel with respect to such assignment as the
Purchaser may reasonably request.
Section 11.10 AMENDMENTS; WAIVERS. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Company or
Purchaser therefrom, shall in any event be effective unless the same shall be in
writing and signed by each Purchaser and the Company in the case of amendments,
and each Purchaser or the Company, as the case may be, in the case of waivers.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the day and year first set above.
PRIDE INTERNATIONAL, INC.
By:
Name:
Title:
TWIN OAKS FINANCIAL LTD.
By:
Name:
Title:
FIRST RESERVE FUND VIII, L.P.
By: First Reserve Fund GP VIII, L.P.
its General Partner
By: First Reserve Corporation
its General Partner
By:
Name:
Title:
29
<PAGE> 36
EXHIBIT A
FIRST AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
<PAGE> 1
EXHIBIT B
EXECUTION VERSION
- --------------------------------------------------------------------------------
FIRST AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
AMONG
PRIDE INTERNATIONAL, INC.
FIRST RESERVE FUND VII, L.P.
AND
FIRST RESERVE FUND VIII, L.P.
MARCH 31, 2000
- --------------------------------------------------------------------------------
<PAGE> 2
FIRST AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
This First Amended and Restated Shareholders Agreement (this
"Agreement") is entered into as of the 31st day of March, 2000 by and among
Pride International, Inc., a Louisiana corporation (the "Company"), First
Reserve Fund VII, L.P., a Delaware limited partnership ("First Reserve VII"),
and First Reserve Fund VII, L.P., a Delaware limited partnership ("First Reserve
VIII") (collectively, "First Reserve").
WITNESSETH:
WHEREAS, pursuant to that certain Securities Purchase Agreement entered
into by and between First Reserve VII and the Company dated as of May 5, 1999,
as amended (as so amended, the "Purchase Agreement"), First Reserve VII received
upon consummation of the transactions contemplated by the Purchase Agreement,
shares of Common Stock, no par value, of the Company;
WHEREAS, pursuant to that certain Securities Purchase Agreement entered
into by and among First Reserve VIII, the Company and Twin Oaks Financial Ltd.
dated as of March 31,2000 (the "Second Purchase Agreement"), First Reserve VIII
received upon consummation of the transactions contemplated thereby additional
shares of Common Stock (the shares of Common Stock acquired pursuant to the
Purchase Agreement together with the shares of Common Stock acquired pursuant to
the Second Purchase Agreement are collectively referred to herein as the "Common
Stock"); and
WHEREAS, the parties hereto desire to reflect herein the agreements
relating to representation of First Reserve on the Board of the Company
described in Section 5.7 of the Purchase Agreement and to set forth certain
additional agreements among them relating to the First Reserve Group's (as
defined below) acquisition and ownership of Company Securities.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
ARTICLE 1
DEFINED TERMS
Section 1.1 Defined Terms. The following capitalized terms when used in
this Agreement shall have the following meanings:
"Affiliate" shall have the respective meanings assigned thereto in Rule
405 as presently promulgated under the Securities Act.
"Amethyst Agreement" means the Put and Exchange Agreement dated
September 14, 1999 between the Company and First Reserve.
<PAGE> 3
"beneficial ownership" and "group" shall have the respective meanings
assigned thereto in Rules 13d-3 and 13d-5 as presently promulgated under the
Exchange Act.
"Board" means the Board of Directors of the Company.
"Common Stock" has the meaning assigned in the Recitals to this
Agreement.
"Company Securities" means, collectively, the Common Stock and any
class or series of the Company's preferred stock, and any other securities,
warrants or options or rights of any nature (whether or not issued by the
Company) that are convertible into, exchangeable for, or exercisable for the
purchase of, or otherwise give the holder thereof any rights in respect of
Common Stock, or any class or series of Company preferred stock that is entitled
to vote generally for the election of directors or otherwise.
"Director" means any member of the Board.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"First Reserve Group" means, collectively, First Reserve and its
Affiliates; provided, however, that a Person shall not be deemed a member of the
First Reserve Group if the only reason that such Person would be deemed an
Affiliate of First Reserve is because it is (a) a limited partner of First
Reserve, (b) an operating company in which First Reserve (and/or any other fund
or funds similar to First Reserve that is controlled by, controlling or under
common control with First Reserve) has an investment, but in which First Reserve
and such other funds do not, in the aggregate (i) have at least a majority of
the voting power (defined in a manner consistent with the definition of Voting
Power set forth herein with respect to the Company) of the securities of such
operating company, or (ii) the contractual right to designate at least a
majority of the members of the board of directors (or similar governing body) of
such operating company, or (c) an Affiliate of an operating company described in
clause (b) who is not otherwise an Affiliate of the First Reserve Group.
"Own Company Securities" means from and after the first date upon which
the aggregate amount invested by the First Reserve Group in the Company equals
or exceeds $50 million (regardless of whether, as a result of share repurchases,
dividends or otherwise, the First Reserve Group's investment in the Company
subsequently becomes less than $50 million); provided, however, the First
Reserve Group shall not be deemed to "Own Company Securities" after the date
(after such date on which the First Reserve Group is first deemed to Own Company
Securities) that its aggregate direct or indirect beneficial ownership of
capital stock of the Company constitutes or would be convertible into or
exchangeable for less than 5% of the then outstanding shares of Common Stock.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or other entity of whatever nature.
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"Purchase Agreement" shall have the meaning assigned in the Recitals to
this Agreement.
"Purchase Agreements" means, when the plural is used, the Purchase
Agreement and the Second Purchase Agreement, collectively.
"Registration Rights Agreement" means the provisions of Article 5
hereof, as amended, modified or supplemented from time to time.
"Second Purchase Agreement" shall have the meaning assigned in the
Recitals to this Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Termination Date" means April 1, 2006.
"Voting Power" means, at, any measurement date, the total number of
votes that could have been cast in an election of directors of the Company had a
meeting of the stockholders of the Company been duly held based upon a record
date as of the measurement date if all Company Securities then outstanding and
entitled to vote at such meeting were present and voted to the fullest extent
possible at such meeting.
Section 1.2 Other Definitions. Definitions applicable to the
Registration Rights Agreement provisions of this Agreement are found in Article
5 hereof.
Section 1.3 Construction. Whenever the context requires, the gender of
all words used in this Agreement includes the masculine, feminine, and neuter,
and the singular shall include the plural, and vice versa. Except as specified
otherwise, all references to Articles and Sections refer to articles and
sections of this Agreement, and all references to exhibits are to Exhibits
attached to this Agreement, each of which is made a part of this Agreement for
all purposes. The word "including" shall mean "including, without limitation"
unless the context otherwise requires.
ARTICLE 2
BOARD OF DIRECTORS; VOTING
Section 2.1 Election of Directors. (a) For so long as First Reserve or
any of the First Reserve Group collectively Own Company Securities, First
Reserve shall have the right (i) to nominate one person for election to the
Board; provided, however, that the person nominated shall be a managing director
or other higher official of First Reserve Corporation or otherwise be reasonably
acceptable to the Company, and (ii) (A) to receive all notices, reports and
other communications sent to Directors at the same time they are transmitted to
Directors, and to receive reasonable notice of and to have one representative
attend any meeting of the Company's Board, (B) to consult with and advise
members of senior management of the Company, and (C) upon reasonable notice, to
have access to the books and records of the Company. If at any time more than
one member of the First Reserve Group shall be the owner of Company Securities,
First Reserve
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shall have the right set forth in subparagraph (i) of this Section 2.1(a) and
may delegate (with notice to the Company) any of the rights set forth in
subparagraph (ii) of this Section 2.1(a) to the extent deemed advisable by First
Reserve in order to comply with laws and regulations applicable to the First
Reserve Group and the members thereof. First Reserve hereby designates William
E. Macaulay as its initial nominee for election to the Company's Board.
(b) The Company agrees with First Reserve that the Company will take
all steps necessary to increase the authorized number of members of the Board by
one and to have the person initially designated by First Reserve appointed to
the Company's Board of Directors on the Closing Date (as such term is defined in
the Purchase Agreement). At each subsequent election of directors at which the
term of the nominee of First Reserve as a director of the Company expires, the
Company will nominate the designee of First Reserve for election to the
Company's Board for the succeeding term for which Directors are elected, will
recommend his or her election to the Company's stockholders and otherwise will
use its reasonable best efforts to cause the Company's stockholders to elect the
designee of First Reserve to the Company's Board. The Company shall use its
reasonable best efforts to solicit from its stockholders proxies voted in favor
of such nominee, and shall vote all management proxies in favor of such nominee,
except for such proxies that specifically indicate to the contrary. The rights
set forth in this Section 2.1(a) shall survive until the termination of this
Agreement as provided in Section 6.1 hereof.
(c) In the event that any Director designated pursuant to Section
2.1(a) for any reason ceases to serve as a member of the Board during his term
of office, First Reserve shall be entitled to designate a successor Director to
fill the vacancy created thereby on the terms and subject to the conditions of
this Section 2.1. If and to the extent that the remaining members of the Board
are entitled to fill vacancies on the Board, upon the occurrence of any vacancy,
the Board will promptly take any actions necessary to fill such vacancies in
accordance with the foregoing provision in order to cause the election of the
nominee of First Reserve.
Section 2.2 No Inconsistent Company Actions. The Company hereby agrees
not to take any action inconsistent with the provisions of Section 2.1.
ARTICLE 3
ACQUISITION AND SALE OF COMPANY SECURITIES
Section 3.1. Company Securities. First Reserve covenants and agrees
with the Company that, without the consent of the Company, except for the
Company Securities acquired pursuant to the Purchase Agreements or any similar
agreement to which the Company and First Reserve (or its Affiliates or
designees) are parties, any Company Securities acquired with the consent of the
Company and any Company Securities issued pursuant to a stock split, stock
dividend or recapitalization with respect to such Company Securities, no member
of the First Reserve Group shall, directly or indirectly, acquire any Company
Securities, if the effect of such acquisition, agreement or other action would
be to increase the aggregate beneficial ownership of Company Securities by the
First Reserve Group by an amount equal to 3% or more of either the Voting Power
or the number of outstanding shares of any class or series of Company
Securities.
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Section 3.2 Distribution of Company Securities. First Reserve
covenants that it shall not, and that it shall cause each other member of the
First Reserve Group that it controls not to, directly or indirectly, sell,
transfer beneficial ownership of, pledge, hypothecate or otherwise dispose of
any Company Securities, except by conversion, exchange or exercise of such
Company Securities pursuant to their terms in a manner not otherwise in
violation of Section 3.1 or pursuant to:
(a) a bona fide pledge of or the granting of a security
interest or any other lien or encumbrance in such Company Securities to a lender
that is not a member of the First Reserve Group to secure a bona fide loan for
money borrowed made to one or more members of the First Reserve Group, the
foreclosure of such pledge or security interest or any other lien or encumbrance
that may be placed involuntarily upon any Company Securities, or the subsequent
sale or other disposition of such Company Securities by such lender or its
agent;
(b) a transfer, assignment, sale or disposition of such
Company Securities to another member of the First Reserve Group that has signed
this Agreement;
(c) a distribution of Company Securities to any partner of
First Reserve; provided that any distributee that is a member of the First
Reserve Group has signed this Agreement; and provided, further that any
arrangements coordinated or initiated by or on behalf of First Reserve to assist
its limited partners in the sale of Company Securities distributed to them must
comply with the provisions of this Section 3.2;
(d) sales in public offerings registered under the Securities
Act;
(e) sales effected in compliance with the provisions of Rule
144 under the Securities Act;
(f) other privately negotiated sales of Company Securities;
(g) upon consummation of or otherwise in connection with a
business combination or similar transaction involving the Company that is
approved by the Board;
(h) sales in a tender offer open to all holders of Company
Securities; or
(i) put rights and call rights granted in the Second Purchase
Agreement.
Notwithstanding anything to the contrary in this Section 3.2, in effecting any
sale, transfer of any beneficial interest in or other disposition of Company
Securities pursuant to Sections 3.2 (c), (d) and (f), above, the members of the
First Reserve Group selling, transferring or disposing such Company Securities
shall, unless the Company consents otherwise, use their reasonable best efforts
to refrain from knowingly selling, transferring or disposing of such number of
Company Securities as represent either the right to acquire or ownership of 5%
or more of the Voting Power to any one Person or group of Persons (other than
Twin Oaks, Inc.).
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Section 3.3. Proxy Solicitations. First Reserve agrees that as a
stockholder, the First Reserve Group shall vote or cause to be voted all Company
Securities of which any member of the First Reserve Group is the beneficial
owner with respect to each matter submitted to the Company's stockholders
providing for, involving, expected to facilitate or that could reasonably be
expected to result in a business combination or other change in control of the
Company that has not been approved by the Board (including without limitation
the election or removal of one or more Company directors or one or more nominees
for director proposed by the Board), either (a) in the manner recommended by the
Board, or (b) proportionately with all other holders of Company Securities
voting with respect to such matter (provided, that the First Reserve Group shall
at all times retain the power to vote for the election of the nominee of First
Reserve to the Company's Board). First Reserve hereby agrees that it and each
member of the First Reserve Group that it controls shall not take any action, or
solicit proxies in any fashion, inconsistent with the provisions of this Section
3.3.
Section 3.4. Groups. First Reserve covenants that it shall not, and
that no other member of the First Reserve Group that it controls shall, join a
partnership, limited partnership, syndicate or other group, or otherwise act in
concert with any other Person, for the purpose of acquiring, holding, voting or
disposing of any Company Securities, other than the First Reserve Group itself.
Section 3.5. Limitation on Covenants. Notwithstanding any provision to
the contrary in this Agreement, during any period that any person designated by
First Reserve to serve as a Director in accordance with the provisions of
Section 2.1(a) is not serving as a Director as a result of the failure of the
Company or the Board to comply with the terms of this Agreement, or if any such
designee is not elected by the stockholders (and Section 2.1(a) and Section 2.2
are complied with), then the covenants set forth in this Article 3 shall cease
to be effective during such period; provided, however, that if a person
designated by First Reserve ceases to be a Director by reason of death or
resignation, then the provisions of this Section 3.5 shall not apply if the
Board appoints First Reserve's designated replacement to fill any such vacancy
within 15 business days after the Company receives notice of such designation.
The provisions of this Section 3.5 shall be in addition to any other remedies
that First Reserve may have in connection with a breach of the provisions of
Article 2 hereof.
ARTICLE 4
LEGEND AND STOP TRANSFER ORDER
Section 4.1 Legend and Stop Transfer Order. To assist in effectuating
the provisions of this Agreement, First Reserve hereby consents: (a) to the
placement, on certificates issued with respect to the shares of Common Stock
issued to it pursuant to the Purchase Agreements or otherwise promptly after any
Company Securities become subject to the provisions of this Agreement, of the
following legend on all certificates representing ownership of Company
Securities owned of record by any member of the First Reserve Group or by any
Person where a member of the First Reserve Group is the beneficial owner
thereof, until such shares are sold, transferred or disposed in a manner
permitted hereby to a Person who is not then a member of the First Reserve
Group:
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THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE PROVISIONS OF AN AGREEMENT AMONG, INTER ALIA, PRIDE
INTERNATIONAL, INC. AND FIRST RESERVE FUND VIII, L.P., AND MAY
NOT BE VOTED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE THEREWITH.
COPIES OF THE AGREEMENT ARE ON FILE AT THE OFFICE OF THE
CORPORATE SECRETARY OF PRIDE INTERNATIONAL, INC.
; and (b) to the entry of stop transfer orders with the transfer agent or agents
of Company Securities against the transfer of Company Securities except in
compliance with the requirements of this Agreement, or if the Company acts as
its own transfer agent with respect to any Company Securities, to the refusal by
the Company to transfer any such securities except in compliance with the
requirements of this Agreement. The Company agrees to remove promptly all
legends and stop transfer orders with respect to the transfer of Company
Securities being made to a Person who is not then a member of the First Reserve
Group in compliance with the provisions of this Agreement.
ARTICLE 5
REGISTRATION RIGHTS AGREEMENT
Section 5.1. Defined Terms. The following capitalized terms when used
in this Registration Rights Agreement shall have the following meanings:
"Amethyst Registrable Securities" means the shares of Common Stock that
(i) are Registrable Securities and (ii) are received by a member of the First
Reserve Group upon exchange of the Exchangeable Stock pursuant to Section 5.10
or 5.11 of the Purchase Agreement or would be received by a member of the First
Reserve Group upon exercise of its right to exchange the Exchangeable Stock
pursuant to Section 5.10 of the Purchase Agreement.
"Demand Registration" means a demand registration as defined in Section
5.2(a) hereof.
"Existing Holders" means the holders of registerable securities in
accordance with the terms of the Existing Registration Rights Agreements.
"Existing Registration Rights Agreements" means that certain (i)
Registration Rights Agreement, dated as of September 1, 1993, by and among the
Company and Paul A. Bragg, (ii) Registration Rights Agreement, dated as of March
10, 1997, by and among the Company and Ackermans & van Haaran Group and
Soletanche Group, and (ii) Registration Rights Agreement, dated as of October 1,
1998, by and among the Company and DWC Amethyst N.V.
"Holders" means the holders of the Registrable Securities in accordance
with the terms of this Registration Rights Agreement.
"Indemnified Party" has the meaning set forth in Section 5.3(c).
"Indemnifying Party" has the meaning set forth in Section 5.3(c).
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"Piggyback Registration" means a piggyback registration as defined in
Section 5.2(b) hereof.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to the
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
"Registrable Securities" means (a) all shares of Common Stock issued to
First Reserve pursuant to the Purchase Agreements including all shares of Common
Stock which may be issued upon exchange of the Exchangeable Stock or otherwise
pursuant to the Amethyst Agreement and (b) any other securities issued by the
Company after the date hereof with respect to such shares of Common Stock by
means of exchange, reclassification, dividend, distribution, split up,
combination, subdivision, recapitalization, merger, spin-off, reorganization or
otherwise; provided, however, that as to any Registrable Securities, such
securities shall cease to constitute Registrable Securities for the purposes of
this Registration Rights Agreement if and when: (i) a Registration Statement
with respect to the sale of such securities shall have been declared effective
by the SEC and such securities shall have been sold pursuant thereto; (ii) such
securities shall have been sold in compliance with of all applicable resale
provisions of Rule 144 under the Securities Act; (iii) such securities may be
sold by the Holder thereof in reliance upon Rule 144(k) (or any successor rule)
promulgated under the Securities Act, or (iv) such securities cease to be issued
and outstanding for any reason.
"Registration Statement" means any registration statement filed by the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Registration Rights Agreement, including the Prospectus included
therein, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
"SEC" means the Securities and Exchange Commission, or any successor
agency thereto.
"Securities Act" means the Securities Act of 1933, as amended.
Section 5.2. Registration Rights
(a) Demand Registration. (i) At any time after June 21, 2000,
First Reserve may at any time and from time to time make a written request for
registration under the Securities Act in a firm commitment underwritten public
offering of Registrable Securities owned by them having a good faith estimated
public offering price of at least $20 million (a "Demand Registration");
provided that the Company shall not be obligated to effect more than three
Demand Registrations in any 12-month period or more than an aggregate of three
Demand Registrations pursuant to this
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Section 5.2(a). Such request will specify the number of shares of Registrable
Securities proposed to be sold. Within five days of such request, the Company
shall give written notice of such request to all other Holders of Registrable
Securities and shall include in the registration in respect of which notice has
been given all Registrable Securities with respect to which the Company has
received written requests from Holders for inclusion therein within ten days
after the Company's notice regarding such registration has been given as
provided herein. If Registrable Securities of other Holders are included in such
registration, the Holder or Holders requesting such Demand Registration may
reduce the number of shares of Registrable Securities initially specified to be
included in such registration in its or their sole discretion; provided, that
Registrable Securities having a good faith estimated public offering price of at
least $20 million are included in such registration. A registration will not
count as a Demand Registration until the Registration Statement filed pursuant
to such registration has been declared effective by the SEC and remains
effective for the period specified in Section 5.2(d)(i).
(ii) The Holder or Holders requesting the Demand
Registration shall select the managing underwriters (including the book running
lead managing underwriters) and any additional investment bankers and managers
to be used in connection with the offering (unless a member of the First Reserve
Group is included among the Holders selling pursuant to such registration, in
which case First Reserve shall select such underwriters, investment bankers and
managers); provided that the lead managing underwriter must be reasonably
satisfactory to the Company.
(iii) Neither the Company nor any of its security
holders (other than the Holders of Registrable Securities in such capacity)
shall be entitled to include any of the Company's securities in a Registration
Statement initiated as a Demand Registration under this Section 5.2(a) without
the consent of First Reserve.
(iv) In addition to the Demand Registration rights
enumerated above, with respect to the Amethyst Registrable Securities at any
time after (X) July 1, 2002 or (Y) such earlier date which is 60 days prior to
the date on which the Exchangeable Stock shall have been exchanged for Common
Stock pursuant to Section 5.10 or 5.11 of the Purchase Agreement, First Reserve
may make a request in writing that the Company file a registration statement
under the Securities Act to register under the Securities Act all Amethyst
Registrable Securities (whether or not such Amethyst Registrable Securities are
then issued and outstanding) for resale on a delayed or continuous basis for a
period of one year in an amount equal to the lesser of (A) all such Amethyst
Registrable Securities, or (B) the number of Amethyst Registrable Securities
that could be sold pursuant to the provisions of Rule 144 by an affiliate of the
Company (assuming such Amethyst Registrable Securities were not restricted
securities within the meaning of Rule 144) during such one-year period. Such a
request (and the related registration) shall be in addition to the Demand
Registrations provided for in Section 5.2(a)(i) of this Agreement.
(b)Piggyback Registration. If the Company proposes to file a
registration statement under the Securities Act with respect to an offering of
Common Stock (i) for the Company's own account (other than a registration
statement on Form S-4 or S-8 (or any substitute form that may be adopted by the
SEC for transactions traditionally registered on Form S-4 or S-8))
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or (ii) for the account of any of its holders of Common Stock, including
without limitation, the Existing Holders (other than pursuant to a Demand
Registration under Section 5.2(a)), then the Company shall give written
notice of such proposed filing to First Reserve as soon as practicable
(but in no event later than the earlier to occur of (i) the tenth day
following receipt by the Company of notice of exercise of other demand
registration rights and (ii) 15 days before the filing date), and such
notice shall offer First Reserve the opportunity to register such number
of shares of Registrable Securities as First Reserve may request within 10
days after receipt by First Reserve of the Company's notice on the same
terms and conditions as the Company's or such holder's Common Stock (a
"Piggyback Registration"). First Reserve will be permitted to withdraw all
or any part of its Registrable Securities from a Piggyback Registration at
any time prior to the date the Registration Statement filed pursuant to
such Piggyback Registration becomes effective with the SEC.
(c) Reduction of Offering. Notwithstanding anything
contained herein, if the Piggyback Registration is an underwritten
offering and the lead managing underwriter of such offering delivers a
written opinion to the Company that the size of the offering that the
Company, First Reserve, the Existing Holders and any other Persons whose
securities are proposed to be included in such offering is such that the
offering or the offering price would be materially and adversely affected,
the Company will include in such Piggyback Registration in the following
order of priority (i) first, all of the securities proposed to be
registered by the Company (if the offering is for the account of the
Company), or, if the offering is for the account of the Existing Holders
(or any of them), all of the securities proposed to be registered by such
Existing Holders, (ii) second, all of the Registrable Securities requested
by First Reserve, and (iii) thereafter, the securities proposed to be
registered by any other Persons.
(d) Filings; Information. Whenever First Reserve requests
that any Registrable Securities be registered pursuant to Section 5.2(a)
hereof, the Company will use its reasonable best efforts to effect the
registration of such Registrable Securities and to permit the sale of such
Registrable Securities in accordance with the intended method of
disposition thereof, as promptly as is practicable, and in connection with
any such request:
(i) the Company will as expeditiously as
possible, but in no event later than 30 days after receipt of a request to
file a registration statement with respect to such Registrable Securities,
prepare and file with the SEC a Registration Statement on any form for
which the Company then qualifies and which counsel for the Company shall
deem appropriate and available for the sale of the Registrable Securities
to be registered thereunder in accordance with the intended method of
distribution thereof and which is reasonably satisfactory to First
Reserve, and use its reasonable best efforts to cause such Registration
Statement to become and remain effective for a period of not less than
90 days (or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold);
provided that if at the time the Company receives a request to file a
Registration Statement with respect to Registrable Securities or
thereafter, the Company is engaged in confidential negotiations or other
confidential business activities, disclosure of which would be required in
such Registration Statement or a related prospectus or supplement thereto
(but would not be required if such Registration Statement were not filed)
and the board of directors of the Company determines in good faith that
such disclosure would be materially detrimental to the Company and its
stockholders, the Company shall have a period of
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not more than 120 days (less the number of days during the previous 12
months that the use of a Prospectus was suspended pursuant to Section
5.2(d)(vi) and/or this Section 5.2(d)(i)) within which to file such
registration statement measured from the date of the Company's receipt of
First Reserve's request for registration in accordance with Section 5.2(a)
hereof or to file any supplement required by Section 5.2(d)(vi). The
filing of a registration statement may only be deferred once for any
potential transaction or event or related transactions or events that
could arise as a result of negotiations or other activities and any
registration statement whose filing has been deferred as a result shall be
filed forthwith if the negotiations or other activities are disclosed or
terminated. In order to defer the filing of a registration statement
pursuant to this Section 5.2(d)(i), the Company shall promptly, upon
determining to seek such deferral, deliver to First Reserve a certificate
signed by the President or Chief Financial Officer of the Company stating
that the Company is deferring such filing pursuant to this Section
5.2(d)(i).
(ii) the Company will prepare and file with the
SEC such amendments and supplements to such Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective for the period set forth in Section
5.2(d)(i) and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration
Statement.
(iii) the Company will, if requested, prior to
filing a Registration Statement or any amendment or supplement thereto,
furnish to First Reserve and each applicable managing underwriter, if any,
copies thereof, and thereafter furnish to First Reserve and each such
underwriter, if any, such number of copies of such Registration Statement,
amendment and supplement thereto (in each case including all exhibits
thereto and documents incorporated by reference therein) and the
Prospectus included in such Registration Statement (including each
preliminary Prospectus) as First Reserve or each such underwriter may
reasonably request in order to facilitate the sale of the Registrable
Securities.
(iv) After the filing of the Registration
Statement, the Company will promptly notify First Reserve of any stop
order issued or, to the Company's knowledge, threatened to be issued by
the SEC and take all reasonable actions required to prevent the entry of
such stop order or to remove it as soon as possible if entered.
(v) the Company will use its reasonable best
efforts to qualify the Registrable Securities for offer and sale under
such other securities or blue sky laws of such jurisdictions in the United
States as First Reserve reasonably requests; provided that the Company
will not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this subparagraph 5.2(d)(v), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction.
(vi) the Company will as promptly as is
practicable notify First Reserve, at any time when a Prospectus is
required by law to be delivered in connection with sales by an underwriter
or dealer, of the occurrence of any event requiring the preparation of a
supplement or amendment to such Prospectus so that, as thereafter
delivered to the purchasers of such Registrable
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Securities, such Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and promptly make available to First
Reserve and to the underwriters any such supplement or amendment. First Reserve
agrees that, upon receipt of any notice from the Company of the occurrence of
any event of the kind described in the preceding sentence, First Reserve will
forthwith discontinue the offer and sale of Registrable Securities pursuant to
the Registration Statement covering such Registrable Securities until receipt by
First Reserve and the underwriters of the copies of such supplemented or amended
Prospectus and, if so directed by the Company, First Reserve will deliver to the
Company all copies, other than permanent file copies, then in First Reserve's
possession of the most recent Prospectus covering such Registrable Securities at
the time of receipt of such notice. In the event the Company shall give such
notice, the Company shall extend the period during which such Registration
Statement shall be maintained effective as provided in Section 5.2(d)(i) by the
number of days during the period from and including the date of the giving of
such notice to the date when the Company shall make available to First Reserve
such supplemented or amended Prospectus.
(vii) the Company will enter into customary agreements
(including an underwriting agreement in customary form) and take such other
actions as are reasonably required in order to expedite or facilitate the sale
of such Registrable Securities.
(viii) the Company will furnish to First Reserve and
to each underwriter a signed counterpart, addressed to such underwriter, of an
opinion or opinions of counsel to the Company and a comfort letter or comfort
letters from the Company's independent public accountants, each in customary
form and covering such matters of the type customarily covered by opinions or
comfort letters, as the case may be, as the managing underwriter reasonably
requests.
(ix) the Company will make generally available to its
security holders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the Registration Statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the SEC thereunder.
(x) the Company will use its reasonable best efforts
to cause all such Registrable Securities to be listed on each securities
exchange or market on which the Common Stock is then listed.
The Company may require First Reserve to furnish promptly in writing to
the Company such information regarding First Reserve, the plan of distribution
of the Registrable Securities and other information as the Company may from time
to time reasonably request or as may be legally required in connection with such
registration.
(e) Registration Expenses. In connection with any Demand
Registration or any Piggyback Registration, the Company shall pay the following
expenses incurred in connection with such registration: (i) filing fees with the
SEC; (ii) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with blue
sky
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qualifications of the Registrable Securities); (iii) printing expenses; (iv)
fees and expenses incurred in connection with the listing of the Registrable
Securities; (v) fees and expenses of counsel and independent certified public
accountants for the Company and (vi) the reasonable fees and expenses of any
additional experts retained by the Company in connection with such registration.
In connection with the preparation and filing of a Registration Statement
pursuant to Section 5.2(a), the Company will also pay the reasonable fees and
expenses of a single legal counsel chosen by First Reserve. First Reserve shall
pay any underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities and any other expenses of First Reserve.
(f) Participation in Underwritten Registrations. No Person may
participate in any underwritten registered offering contemplated hereunder
unless such Person (a) agrees to sell its securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and this
Registration Rights Agreement.
(g) Holdback Agreements. First Reserve agrees not to effect any
public sale (including a sale pursuant to Rule 144 of the Securities Act) of any
Registrable Securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the 14 days prior to, and during the
120-day period beginning on, the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration in which First Reserve
participates, other than the Registrable Securities to be sold pursuant to such
registration statement.
Section 5.3. Indemnification
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless First Reserve, its general partner, the general
partner of the general partner, and the officers and directors of such general
partner, and each Person, if any, who controls First Reserve within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages, liabilities and expenses
arising out or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or prospectus relating to
the Registrable Securities or any preliminary Prospectus, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities and
expenses are caused by any untrue statement or omission or alleged untrue
statement or omission based upon information relating to First Reserve or the
plan of distribution furnished in writing to the Company by or on behalf of
First Reserve expressly for use therein; provided, that the foregoing indemnity
with respect to any preliminary Prospectus shall not inure to the benefit of
First Reserve if a copy of the most current Prospectus at the time of the
delivery of the Registrable Securities was not provided to the purchaser, the
Company had previously furnished First Reserve with a sufficient number of
copies of the current Prospectus and such current Prospectus would have cured
the defect giving rise to such loss, claim, damage or liability. The Company
also agrees to indemnify any underwriters of the Registrable Securities, their
officers and directors and each Person who controls such underwriters on
substantially the same basis as that of the indemnification of First Reserve
provided in this Section 5.3(a).
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(b) Indemnification by First Reserve. First Reserve agrees to
indemnify and hold harmless the Company, its officers and directors, and each
Person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to First Reserve, but only with
reference to information relating to First Reserve or the plan of distribution
furnished in writing by or on behalf of First Reserve expressly for use in any
Registration Statement or Prospectus, or any amendment or supplement thereto, or
any preliminary Prospectus. First Reserve also agrees to indemnify and hold
harmless any underwriters of the Registrable Securities, their officers and
directors and each person who controls such underwriters on substantially the
same basis as that of the indemnification of the Company provided in this
Section 5.3(b).
(c) Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 5.3(a) or Section 5.3(b), such Person (the "Indemnified Party") shall
promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing and the Indemnifying Party shall have the right
to assume the defense of such proceeding and retain counsel reasonably
satisfactory to such Indemnified Party to represent such Indemnified Party and
any others the Indemnifying Party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such proceeding. In any
such proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
of attorneys (in addition to any local counsel) at any time for all such
Indemnified Parties, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Indemnified
Parties, such firm shall be designated in writing by the Indemnified Parties.
The Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent, or if
there be a final judgment for the plaintiff, the Indemnifying Party shall
indemnify and hold harmless such Indemnified Parties from and against any loss
or liability (to the extent stated above) by reason of such settlement or
judgment
(d) Contribution. If the indemnification provided for in this
Registration Rights Agreement is unavailable to an Indemnified Party in respect
of any losses, claims, damages, liabilities or expenses referred to herein, then
each such Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the Company and
First Reserve and the underwriters in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities. The
relative fault of the Company and, First Reserve and the underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission
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<PAGE> 16
or alleged omission to state a material fact relates to information supplied by
such party and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and First Reserve agree that it would not be just
and equitable if contribution pursuant to this Section 5.3(d) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages or liabilities referred to immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
Section 5.4. Rule 144. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange Act
and that it will take such further action as First Reserve may reasonably
request to the extent required from time to time to enable First Reserve to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 under the Securities Act, as
such Rule maybe amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC. Upon the request of First Reserve, the Company
will deliver to First Reserve a written statement as to whether it has complied
with such reporting requirements.
Section 5.5. Miscellaneous.
(a) Notices. Any notice or other communication required or
permitted under this Registration Rights Agreement shall be in writing or by
telex, telephone or facsimile transmission with subsequent written confirmation,
and may be personally served or sent by United States mail and shall be deemed
to have been given upon receipt by the party notified. For purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this Section 5.5) shall be as set forth opposite each party's
name on the signature page hereof.
(b) Termination. This Registration Rights Agreement will
terminate upon the earlier of (i) the date upon which the Company and First
Reserve mutually agree in writing to terminate this Registration Rights
Agreement and (ii) the first date on which there ceases to be any Registrable
Securities.
(c) Transfer of Registration Rights. The rights of Holders
hereunder may be assigned by Holders to a transferee or assignee of any
Registrable Securities provided that the Company is given written notice at the
time of or within a reasonable time after said transfer, stating the name and
address of such transferee or assignee and identifying the securities with
respect to which such registration rights are being assigned; and provided
further that the registration rights granted by the Company in Section 5.2 may
only be transferred to, and the definition of "Holders" shall only include,
transferees who meet either of the following criteria: such transferee is (i) a
holder of 100,000 or more shares of the Registrable Securities before giving
effect to the transfer, (ii)
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a member of the First Reserve Group, or (iii) a bank, trust company or other
financial institution, any pension plan, any investment company, any insurance
company, any broker or dealer, or any other similar financial institution or
entity, regardless of legal form. To the extent the rights under Section 5.2(a)
of this Agreement are assigned to multiple Holders, all rights hereunder that
may be exercised by the First Reserve Group may only be exercised by one or more
Holders holding 50% or more of the Registrable Securities in the aggregate.
(d) Waivers and Amendments; Noncontractual Remedies;
Preservation of Remedies. This Registration Rights Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the Company and the Holders of a majority
of the Registrable Securities or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising a right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any such right, power or privilege, nor any single or
partial exercise of any such right, power or privilege, preclude a further
exercise thereof or the exercise of any other such right, power or privilege,
The rights and remedies herein provided are cumulative and are not exclusive of
any rights or remedies that any party may otherwise have at law or in equity.
The rights and remedies of any party based upon, arising out of or otherwise in
respect of any breach of any provision of this Registration Rights Agreement
shall in no way be limited by the fact that the act, omission, occurrence or
other state of facts upon which any claim of any such breach is based may also
be the subject matter of any other provision of this Registration Rights
Agreement (or of any other agreement between the parties) as to which there is
no breach.
(e) Severability. If any provision of this Registration Rights
Agreement or the applicability of any such provision to a person or
circumstances shall be determined by any court of competent jurisdiction to be
invalid or unenforceable to any extent, the remainder of this Registration
Rights Agreement or the application of such provision to Persons or
circumstances other than those for which it is so determined to be invalid and
unenforceable, shall not be affected thereby, and each provision of this
Registration Rights Agreement shall be valid and shall be enforced to the
fullest extent permitted by law. To the extent permitted by applicable law
each party hereto hereby waives any provision or provisions of law which would
otherwise render any provision of this Registration Rights Agreement invalid,
illegal or unenforceable in any respect.
(f) Successors and Assigns. Subject to Section 5.5(c), this
Registration Rights Agreement shall be binding upon and inure to the benefit of
and be enforceable by the successors and assigns of the parties hereto.
(g) Other Registration Rights Agreements. Without the prior
written consent of First Reserve, the Company will neither enter into any new
registration rights agreements that conflict with the terms of this Registration
Rights Agreement nor permit the exercise of any other registration rights in a
manner that conflicts with the terms of the registration rights granted
hereunder.
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ARTICLE 6
MISCELLANEOUS
Section 6.1 Termination. Except as provided in Section 5.5(b) as to the
Registration Rights Agreement (which shall be governed by such Section 5.5(b))
and this Section 6.1, the respective covenants and agreements of First Reserve
and the Company contained in this Agreement will continue in full force and
effect until the earliest to occur of either of the following: (i) the
Termination Date, or (ii) the sale or other disposition in accordance with this
Agreement by the First Reserve Group of Company Securities if after and giving
effect to such sale or other disposition, the First Reserve Group beneficially
owns in the aggregate Company Securities representing less than 5% of the Voting
Power (including all exchangeable and convertible Company Securities on an
"as-if" exchanged or converted basis). Upon any termination of this Agreement
pursuant to this Section 6.1 all of the obligations of the Company and First
Reserve hereunder (other than the Registration Rights Agreement) shall
terminate.
Section 6.2 Notices. Any notice or other communication required or
permitted hereunder shall be in writing or by telex, telephone or facsimile
transmission with subsequent written confirmation, and may be personally served
or sent by United States mail and shall be deemed to have been given upon
receipt by the party notified. For purposes hereof, the addresses of the parties
hereto (until notice of a change thereof is delivered as provided in this
Section 6.2) shall be as set forth opposite each party's name on the signature
page hereof.
Section 6.3 Waivers and Amendments; Noncontractual Remedies;
Preservation of Remedies. Other than with respect to the provisions of the
Registration Rights Agreement, which shall be governed by Section 5.5(d), this
Agreement may be amended, superseded, canceled, renewed or extended, and the
terms hereof may be waived, only by a written instrument signed by the Company
and the holders of a majority of the Company Securities held by the First
Reserve Group or, in the case of a waiver, by the party waiving compliance. No
delay on the part of any party in exercising a right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any such right, power or privilege, nor any single or partial
exercise of any such right, power or privilege, preclude a further exercise
thereof or the exercise of any other such right, power or privilege. The rights
and remedies herein provided are cumulative and are not exclusive of any rights
or remedies that any party may otherwise have at law or in equity. The rights
and remedies of any party based upon, arising out of or otherwise in respect of
any breach of any provision of this Agreement (other than the Registration
Rights Agreement, which shall be governed by Section 5.5(d)) shall in no way be
limited by the fact that the act, omission, occurrence or other state of facts
upon which any claim of any such breach is based may also be the subject matter
of any other provision of this Agreement (or of any other agreement between the
parties) as to which there is no breach.
Section 6.4 Severability. If any provision of this Agreement or the
applicability of any such provision to a person or circumstances shall be
determined by any court of competent jurisdiction to be invalid or unenforceable
to any extent, the remainder of this Agreement or the application of such
provision to persons or circumstances other than those for which it is so
determined to be invalid and unenforceable; shall not be affected thereby, and
each provision of this
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Agreement shall be valid and shall be enforced to the fullest extent permitted
by law. To the extent permitted by applicable law each party hereto hereby
waives any provision or provisions of law which would otherwise render any
provision of this Agreement invalid, illegal or unenforceable in any respect.
Section 6.5 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts and when so executed shall constitute one
Agreement, notwithstanding that all parties are not signatories to the same
counterpart.
Section 6.6 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such state, without giving
effect to the conflict of laws principles of such state
Section 6.7 Successors and Assigns. Subject to the transfer
restrictions contained in this Agreement, this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the successors and assigns of
the parties hereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
Address: PRIDE INTERNATIONAL, INC.
5847 San Felipe Road, Suite 3300 By:
Houston, Texas 77057 ------------------------------
Attn: Mr. Paul A. Bragg Paul A. Bragg
Fax: 713-789-1430 President and Chief Executive
Officer
Address: FIRST RESERVE FUND VIII, L.P.
600 Travis, Suite 6000
Houston, Texas 77002 By: First Reserve GP VIII, L.P.,
Attn: Ben A. Guill its General Partner
Fax: 713-224-0771
By: First Reserve Corporation,
its General Partner
By:
---------------------------
Thomas R. Denison
Managing Director
Address: FIRST RESERVE FUND VII, L.P.
600 Travis, Suite 6000
Houston, Texas 77002 By: First Reserve GP VIII, L.P.,
Attn: Ben A. Guill its General Partner
Fax: 713-224-0771
By: First Reserve Corporation,
its General Partner
By:
---------------------------
Thomas R. Denison
Managing Director
