SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): OCTOBER 30, 1997
PRIDE INTERNATIONAL, INC.
(FORMERLY PRIDE PETROLEUM SERVICES, INC.)
(Exact name of registrant as specified in its charter)
LOUISIANA 0-16961 76-0069030
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
5847 SAN FELIPE STREET, SUITE 3300
HOUSTON, TEXAS 77057
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 713/789-1400
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ITEM 5. OTHER EVENTS.
On October 30, 1997 Pride International, Inc. (the "Company")
reported net earnings for its quarter ended September 30, 1997 of $14.0 million,
or $0.27 per share, on revenues of $182.9 million. For the same period in 1996,
the Company reported net earnings of $6.9 million, or $0.22 per share, on
revenues of $115.4 million. For the nine-month period ended September 30, 1997,
net earnings were $84.6 million, or $1.78 per share, on revenues of $488.8
million. Net earnings for the nine-month period included a gain, net of
estimated income taxes, on the sale of the Company's U.S. land-based well
servicing operations of $53.5 million. The gain was partially offset by
nonrecurring charges totaling $4.2 million, net of estimated income taxes,
relating principally to the induced conversion of $28.0 million aggregate
principal amount of the Company's convertible subordinated debentures. Excluding
such nonrecurring items, net earnings were $35.3 million, or $0.76 per share.
For the corresponding nine-month period in 1996, net earnings were $14.5
million, or $0.50 per share, on revenues of $283.6 million.
The increase in revenues and earnings was primarily attributable to
the inclusion of businesses and equipment that the Company acquired over the
past twelve months. The most significant increments to this year's operating
results are the inclusion of the operations of Forasol-Foramer N.V., acquired in
March 1997, and the addition of a fleet of 13 jackup rigs acquired in May 1997.
Other transactions affecting 1997 results are the acquisition of a 13 rig
contractor in Colombia in October 1996, the acquisition of three land drilling
rigs in Argentina in October 1996, the deployment of two new platform rigs in
the fourth quarter of 1996 and the divestiture of the Company's U.S. land-based
well servicing operations in February 1997.
On November 6, 1997 the Company entered into an Underwriting
Agreement dated November 6, 1997 (the "Underwriting Agreement") between the
Company and Donaldson, Lufkin & Jenrette Securities Corporation, as sole
underwriter, relating to the offering of 2,865,000 shares of the Company's
common stock, no par value, under its Registration Statement of Form S-3
(Registration No. 333-21385). The Underwriting Agreement is being filed as an
exhibit to this report.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) EXHIBITS.
1.1 -- Underwriting Agreement dated November 6, 1997 by and between
Pride International, Inc. and Donaldson, Lufkin & Jenrette
Securities Corporation.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PRIDE INTERNATIONAL, INC.
By: /s/ EARL W. McNIEL
Earl W. McNiel
Vice President and Chief
Financial Officer
Date: November 7, 1997
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2,865,000 Shares
Pride International, Inc.
Common Stock
UNDERWRITING AGREEMENT
November 6, 1997
Donaldson, Lufkin & Jenrette
Securities Corporation
140 Broadway
New York, New York 10005
Ladies and Gentlemen:
Pride International, Inc., a Louisiana corporation (the "Company"),
confirms its agreement with Donaldson, Lufkin & Jenrette Securities Corporation
(the "Underwriter") as follows:
1. THE SHARES. Subject to the terms and conditions herein set forth, the
Company proposes to issue and sell 2,865,000 shares of its common stock, no par
value, (the "Shares") to the Underwriter. The shares of common stock of the
Company to be outstanding after giving effect to the sales contemplated hereby
are hereinafter referred to as the "Common Stock."
2. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3, including a base prospectus
relating to the Shares and certain other securities. The registration statement
as amended at the time when it became effective on April 4, 1997, including a
registration statement (if any) filed pursuant to Rule 462(b) under the Act
increasing the size of the offering registered under the Act and information (if
any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Act, is hereinafter referred to as
the Registration Statement; and the base prospectus dated April 4, 1997, as
supplemented by the prospectus supplement relating to the Shares (the
"Supplement") in the form first used to confirm sales of Shares is hereinafter
referred as the Prospectus. Any reference in this Agreement to the Registration
Statement, a preliminary prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act, as of the effective date of the Registration
Statement or the date of such Preliminary Prospectus or the Prospectus.
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3. AGREEMENTS TO SELL AND PURCHASE. On the basis of the representations
and warranties contained in this Agreement, and subject to its terms and
conditions, the Company agrees to issue and sell, and the Underwriter agrees to
purchase from the Company at a price per share of $34.125 (the "Purchase Price")
the Shares.
4. DELIVERY AND PAYMENT. Payment for the Shares shall be made at 10:00
A.M., New York City time, on the third business day (or fourth business day if
permitted by Rule 15c6-1(c) of the Securities Exchange Act of 1934, as amended,
including the rules and regulations thereunder (the "Exchange Act")) (such time
and date being referred to as the "Closing Date") following the initial public
offering of the Shares as advised by you to the Company, at such place as you
shall designate. The Closing Date and the location of delivery of and the form
of payment for the Shares may be varied by agreement between you and the
Company.
Unless otherwise directed by you, payment of the Purchase Price
shall be made to the Company by wire transfer of immediately available funds to
a bank account designated by the Company against delivery to you. Unless you
direct that the Shares will be issued in book-entry form, Certificates for the
Shares shall be registered in such names and issued in such denominations as you
shall request in writing not later than two full business days prior to the
Closing Date. Such certificates shall be made available to you for inspection
not later than 9:30 a.m., New York City time, on the business day next preceding
the Closing Date. Certificates in definitive form evidencing the Shares shall be
delivered to you on the Closing Date, with any transfer taxes thereon duly paid
by the Company, against payment of the Purchase Price therefor. If the Shares
will be issued in book-entry form, the Company shall deposit the global
certificate representing the Shares with the Depository Trust Company ("DTC"),
or its designated custodian at the Closing Date, and the Company will deliver
such global certificate to the Underwriter by causing DTC to credit the Shares
to the account of the Underwriter at DTC.
5. AGREEMENTS OF THE COMPANY. The Company agrees with you that:
(a) It will, if necessary or required by law, file an amendment to
the Registration Statement or, if necessary pursuant to Rule 430A under the Act,
a post-effective amendment to the Registration Statement, as soon as practicable
after the execution and delivery of this Agreement, and will use its best
efforts to cause the Registration Statement or such post-effective amendment to
become effective at the earliest possible time. The Company will comply fully
and in a timely manner with the applicable provisions of Rule 424 and Rule 430A
under the Act.
(b) It will advise you promptly and, if requested by you, confirm
such advice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the transmission to the Commission for filing of
any supplement to the Prospectus or any document that would as a result thereof
be incorporated by reference in the Prospectus and to furnish you with copies
thereof, (iii) of the receipt of any comments from the Commission that relate to
the Registration Statement or requests by the Commission for amendments to the
Registration Statement
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or amendments or supplements to the Prospectus or for additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purpose by the Commission or any state
securities commission or other regulatory authority, and (v) of the happening of
any event during the period referred to in paragraph (e) below which makes any
Statement of a material fact made in the Registration Statement (as amended or
supplemented from time to time) untrue or which requires the making of any
additions to or changes in the Registration Statement (as amended or
supplemented from time to time) in order to make the statements therein not
misleading or that makes any statement of a material fact made in the Prospectus
(as amended or supplemented from time to time) untrue or which requires the
making of any additions to or changes in the Prospectus (as amended or
supplemented from time to time) in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. If at any
time the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption of the Shares under any state securities or Blue Sky laws, the Company
shall, if reasonably requested by you, use every reasonable effort to obtain the
withdrawal or lifting of such order at the earliest possible time.
(c) It will furnish (to the extent not previously furnished) to you
without charge two (2) signed copies of the Registration Statement as first
filed with the Commission and of each amendment to it, including all exhibits
filed therewith or incorporated by reference therein, and will furnish to you
such number of conformed copies of the Registration Statement as so filed and of
each amendment to it, without exhibits, as you may reasonably request.
(d) It will not file any amendment to the Registration Statement, or
make any amendment or supplement to the Prospectus, of which you shall not
previously have been advised and provided a copy prior to the filing or making
thereof or to which you shall reasonably object; and it will prepare and file
with the Commission, promptly upon your reasonable request, any amendment to the
Registration Statement or any amendment or supplement to the Prospectus that may
be necessary or advisable in connection with the distribution of the Shares by
you, and will use its best efforts to cause the same to become effective as
promptly as possible.
(e) For such period as in the opinion of counsel for the Underwriter
a prospectus is required by the Act to be delivered in connection with sales by
the Underwriter, it will furnish to the Underwriter without charge as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as the Underwriter may reasonably request for the purposes contemplated by the
Act.
(f) If during the period specified in paragraph (e) any event shall
occur as a result of which, in the opinion of counsel for the Underwriter, it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances
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existing as of the date the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with the Act, it will, as promptly as practicable, prepare and file with
the Commission an appropriate amendment or supplement to the Prospectus so that
the statements in the Prospectus, as so amended or supplemented, will not, in
the light of the circumstances existing as of the date the Prospectus is so
delivered, be misleading, and so that the Prospectus and will comply with the
Act, and will furnish to the Underwriter and to such dealers as you shall
specify without charge such number of copies thereof as the Underwriter may
reasonably request.
(g) Prior to any public offering of the Shares, it will cooperate
with you and counsel for the Underwriter in connection with the registration or
qualification of the Shares for offer and sale by the Underwriter under the
state securities or Blue Sky laws of such jurisdictions as you may request
(provided, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to take any
action that would subject it to general consent to service of process in any
jurisdiction in which it is not now so subject). The Company will continue such
qualification in effect so long as required by law for distribution of the
Shares and will file such consents to service of process or other documents as
may be necessary in order to effect such registration or qualification
(provided, that the Company shall not be obligated to take any action that would
subject it to general consent to service of process in any jurisdiction in which
it is not now so subject).
(h) It will make generally available to its security holders as soon
as reasonably practicable a consolidated earnings statement covering a period of
at least twelve months beginning after the "effective date" (as defined in Rule
158 under the Act) of the Registration Statement (but in no event commencing
later than 90 days after such date) which shall satisfy the provisions of
Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing
when such statement has been so made available.
(i) It will timely complete all required filings and otherwise
comply fully in a timely manner with all provisions of the Exchange Act to cause
the Shares to be registered pursuant thereto.
(j) During the period of five years after the date of this
Agreement, to furnish to you as soon as available a copy of each report or other
publicly available information of the Company mailed to the holders of its
Common Stock or filed with the Commission and such other publicly available
information concerning the Company and its Subsidiaries as you may reasonably
request.
(k) It will use the proceeds from the sale of the Shares in the
manner described in the Prospectus under the Caption "Use of Proceeds."
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(l) It has not taken and will not take, directly or indirectly, any
action designed, or that might reasonably be expected, to cause or result in
stabilization or manipulation of the market price of the Common Stock to
facilitate the sale or resale of the Shares.
(m) It will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or after
the Closing Date and to satisfy all conditions precedent to the delivery of the
Shares.
(n) To use its best efforts to maintain the listing of such Common
Stock on the New York Stock Exchange (or on another national securities exchange
or the Nasdaq National Market System) for a period of five years after the
effective date of the Registration Statement.
6. PAYMENT OF EXPENSES. The Company agrees with you that whether or not
the transactions contemplated hereby are consummated or this Agreement is
terminated, the Company will pay and be responsible for all costs, expenses,
fees and taxes incident to (i) the preparation, printing, filing and
distribution under the Act of the Registration Statement (including financial
statements and exhibits), each preliminary prospectus and all amendments and
supplements to any of them prior to or during the period specified in paragraph
6(e), (ii) the printing and delivery of the Prospectus and all amendments or
supplements to it during the period specified in paragraph (e), (iii) the
printing and delivery of this Agreement, the Preliminary and Supplemental Blue
Sky Memoranda and all other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering of the Shares
(including in each case any disbursements of counsel for the Underwriter
relating to such printing and delivery), (iv) the registration or qualification
of the Shares for offer and sale under the securities or Blue Sky laws of the
several states (including in each case the fees and disbursements of counsel for
the Underwriter relating to such registration or qualification and memoranda
relating thereto), (v) filings and clearance with the National Association of
Securities Dealers, Inc. in connection with the offering, (vi) the listing of
the Shares on the New York Stock Exchange and (vii) furnishing such copies of
the Registration Statement, the Prospectus and all amendments and supplements
thereto as may be requested for use in connection with the offering or sale of
the Shares by the Underwriter.
7. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
the Underwriter that:
(i) The Registration Statement has become effective and at the date
of the Prospectus (if different), including at the date of any
post-effective amendment or supplement, the Registration Statement will
comply in all material respects with the provisions of the Act, and will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus (and any supplements or
amendments thereto) will at all such times comply in all material respects
with the provisions of the Act and will not at any such time contain any
untrue statement of a material fact or omit to state any material
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fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that
the representations and warranties contained in this paragraph 7(i) shall
not apply to (A) statements in or omissions from the Registration
Statement or the Prospectus (or any supplement or amendment to any of
them) based upon and conforming with information relating to the
Underwriter furnished to the Company in writing by or on behalf of the
Underwriter expressly for use therein. The Company acknowledges for all
purposes under this Agreement (including this paragraph and Section 8
hereof) that the statements set forth in the last paragraph on the cover
page of the Prospectus and in paragraphs 2, 3 and 4 under "Plan of
Distribution" in the Prospectus constitute the only written information
furnished to the Company by the Underwriter for use in the Registration
Statement or the Prospectus or any preliminary prospectus (or any
amendment or supplement to any of them) and that the Underwriter shall not
be deemed to have provided any information (and therefore is not
responsible for any statements or omissions) pertaining to any arrangement
or agreement with respect to any party other than the Underwriter. No
contract or document of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement is not described and filed as required.
(ii) The documents incorporated by reference in the Registration
Statement or and the Prospectus pursuant to Item 12 of Form S-3 under the
Act, at the time they became effective or at the time they were filed with
the Commission, or to the extent such documents were subsequently amended
prior to the date hereof, at the time so amended, complied and will comply
in all material respects with the requirements of the Exchange Act and,
when read together and with the other information in the Prospectus, do
not and will not on the date hereof and at the Closing Date contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were or are made, not
misleading.
(iii) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 or 430A under the Act, complied when so filed
in all material respects with the provisions of the Act and did not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(iv) Each "significant subsidiary" (as such term is defined in
Regulation S-X under the Exchange Act) of the Company is listed on Exhibit
21 to the Annual Report on Form 10-K of the Company for the year ended
December 31, 1996 or is described in the Registration Statement as having
been acquired after December 31, 1996. The Company and each of its the
subsidiaries listed on Schedule II hereto (the "Subsidiaries") has been
duly organized, is validly existing and in good standing under the laws of
its jurisdiction of organization and has full corporate power and
authority to carry on its business as it is
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currently being conducted (and, in the case of the Company, to authorize
the offering of the Shares and to issue, sell and deliver the Shares), and
is duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have
a Material Adverse Effect (as defined below).
(v) All of the issued and outstanding shares of capital stock of
each of the Subsidiaries has been duly authorized and validly issued and
are owned directly or indirectly by the Company, subject to such minimum
minority ownership interests in the non-U.S. Subsidiaries as may be
required under applicable law. All such shares are fully paid and
nonassessable, and, except as disclosed in the Prospectus, are owned by
the Company free and clear of any security interest, mortgage, pledge,
claim, lien, encumbrance or adverse interest of any nature (each, a
"Lien"). There are no outstanding subscriptions, rights, warrants,
options, calls, convertible or exchangeable securities, commitments of
sale, or Liens related to or entitling any person to purchase or otherwise
to acquire any shares of the capital stock of, or other ownership
interests in, any Subsidiary.
(vi) The authorized capital stock of the Company is as set forth in
the Prospectus under "Description of Capital Stock"; all the shares of
issued and outstanding Common Stock have been duly authorized and validly
issued and are fully paid, nonassessable and not subject to any preemptive
or similar rights; except as disclosed in the Prospectus, there are no
outstanding (a) securities or obligations of the Company convertible into
or exchangeable for any capital stock of the Company, (b) warrants, rights
or options to subscribe for or purchase from the Company any such capital
stock or any such convertible or exchangeable securities or obligations,
or (c) obligations of the Company to issue any shares of capital stock,
any such convertible or exchangeable securities or obligations, or any
such warrants, rights or options; all offers and sales of the Company's
capital stock by the Company prior to the date hereof were at all relevant
times duly registered under the Act or exempt from the registration
requirements of the Act and were duly registered or the subject of an
available exemption from the registration requirements of the applicable
state securities or Blue Sky laws; the 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.
(vii) Neither the Company nor any Subsidiary is in violation of or
in default under (a) its charter or bylaws or (b) any bond, debenture,
note or any other evidence of indebtedness or any indenture, mortgage,
deed of trust or other contract, lease or other instrument to which it is
a party or by which it is bound, or to which any of its property or assets
is subject, which could reasonably be expected to have a material adverse
effect, singly or in the aggregate, on the business, results of
operations, financial condition or business affairs, of the Company and
the Subsidiaries, taken as a whole (a "Material Adverse Effect"). No
contract or other document of a character required to be described in the
Registration
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Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement is not so described or filed as required.
(viii) This Agreement has been duly and validly authorized, executed
and delivered by the Company, and constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms (except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws or public policy
relating thereto).
(ix) The execution and delivery of this Agreement and the issuance
and sale of the Shares, the performance of this Agreement and the
consummation of the transactions contemplated hereby and thereby will not
require any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body (except
for such consents as have been obtained and except as such may be required
under the securities or Blue Sky laws of the various states) and will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default or cause an acceleration of any obligation under,
(A) the charter or bylaws of the Company or any Subsidiary, (B) any bond,
note, debenture or other evidence of indebtedness or any indenture,
mortgage, deed of trust or other contract, lease or other instrument to
which the Company or any Subsidiary is a party or by which any of them is
bound, or to which any of the property or assets of the Company or any
Subsidiary is subject, which could reasonably be expected to have a
Material Adverse Effect, (C) any order of any court or governmental agency
or authority entered in any proceeding to which the Company or any
Subsidiary is a party or by which any of them is bound, or (D) violate or
conflict with any applicable 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 its their respective
property.
(x) Except as disclosed in the Prospectus, there is no action, suit
or proceeding before or by any court or governmental agency or body
pending against the Company or any of its Subsidiaries that is required to
be disclosed in the Registration Statement or the Prospectus, or which
could reasonably be expected to have a Material Adverse Effect, or
materially and adversely affect the performance of the Company's
obligations pursuant to this Agreement and, to the best of the Company's
knowledge, no such proceedings are contemplated or threatened. No action
has been taken with respect to the Company or any Subsidiary, and no
statute, rule or regulation or order has been enacted, adopted or issued
by any governmental agency 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,
suspends the effectiveness of the Registration Statement, prevents or
suspends the use of any preliminary prospectus or the Prospectus or
prevents or suspends the sale of the Shares in any of the jurisdictions
that you may have specified pursuant to Section 5(g) hereof; no action,
suit or proceeding before any court or arbitrator or any governmental
body, agency or official (domestic or foreign), is pending against or, to
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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; and every request of the
Commission, or any securities authority or agency of any jurisdiction, for
additional information to be included in the Registration Statement or the
Prospectus or otherwise has been complied with in all material respects.
(xi) Coopers & Lybrand L.L.P., the firm of accountants that has
certified the applicable consolidated financial statements and supporting
schedules of the Company filed with the Commission as part of or
incorporated by reference in the Registration Statement and the
Prospectus, are independent public accountants with respect to the Company
and the Subsidiaries, as required by the Act. 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 Prospectus and the
Registration Statement comply as to form in all material respects with the
requirements of the Act. Such financial statements fairly present in all
material respects the consolidated financial position of the Company and
the Subsidiaries at the respective dates indicated and the results of
their operations and their cash flows for the respective periods
indicated, and have been prepared in accordance with generally accepted
accounting principles ("GAAP"), except as otherwise expressly stated
therein, as consistently applied throughout such periods. The other
financial and statistical information and data included or incorporated by
reference in the Prospectus and in the Registration Statement, historical
and pro forma, are, in all material respects, accurate and prepared on a
basis consistent with such financial statements and the books and records
of the Company. Each of the Company and its Subsidiaries keeps books and
records that fairly reflect its assets and maintains internal accounting
controls which provide reasonable assurance that (a) transactions are
executed in accordance with management's authorization, (b) transactions
are recorded as necessary to permit preparation of the Company's
consolidated financial statements in accordance with generally accepted
accounting principles and to maintain accountability for the assets of the
Company, (c) access to the assets of the Company and each of its
Subsidiaries is permitted only in accordance with management's
authorization, and (d) the recorded accountability for assets of the
Company and each of its Subsidiaries is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
material differences.
(xii) Except as disclosed in the Registration Statement, subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) neither the Company nor any
Subsidiary has incurred any liabilities or obligations, direct or
contingent, that are material to the Company and the Subsidiaries, taken
as a whole, nor entered into any transaction not in the ordinary course of
business that is material to the Company and the Subsidiaries, taken as a
whole, and is required to be disclosed on a balance sheet in accordance
with GAAP, either when considered alone or
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together with all other such transactions, (ii) there has been no decision
or judgment in the nature of litigation adverse to the Company or any
Subsidiary that could reasonably be expected to have a Material Adverse
Effect, and (iii) there has been no material adverse change in the
financial condition or in the results of operations, business affairs or
business prospects of the Company and the Subsidiaries, taken as a whole
(any of the above, a "Material Adverse Change").
(xiii) The Company and each of its Subsidiaries has such
certificates, permits, licenses, approvals, authorizations and other
rights (collectively, "Permits") including, without limitation, under any
Environmental Laws (as defined below), issued by governmental or
regulatory authorities as are, in all material respects, necessary to own,
lease and operate their respective properties and to conduct their
respective businesses; the Company and each of its Subsidiaries has
fulfilled and performed all of its material obligations with respect to
such Permits and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or results or
would result in any other material impairment of the rights of the holder
of any such Permit; and, except as described in the Prospectus, such
Permits contain no restrictions that are materially burdensome to the
Company and its Subsidiaries considered as a whole.
(xiv) All material tax returns required to be filed by the Company
and the Subsidiaries in every jurisdiction have been filed, other than
those filings being contested in good faith, and, except as disclosed in
the Prospectus, all taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due or claimed to be due
from such entities have been paid.
(xv) 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
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relating to (x) the presence, or release into the environment, of any
Materials of Environmental Concern at any location owned or operated by
the Company or any Subsidiary, now or in the past, or (y) circumstances
forming the basis of any violation, or alleged violation, of any
Environmental Law (collectively, "Environmental Claims"); and (d) there
are no past or present actions, activities, circumstances, conditions,
events or incidents, that could form the basis of any Environmental Claim
against the Company or any Subsidiary or against any person or entity
whose liability for any Environmental Claim the Company or any Subsidiary
has retained or assumed either contractually or by operation of law.
(xvi) 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.
(xvii) Except as otherwise set forth in the Prospectus or such as
would not have a Material Adverse Effect, the Company and each Subsidiary
has good and marketable title, free and clear of all Liens (except Liens
for taxes not yet due and payable), to all property and assets described
in the Registration Statement as being owned by it. All leases to which
the Company or any Subsidiary is a party are valid and binding and no
default has occurred or is continuing thereunder, which might result in a
Material Adverse Effect, and the Company and each Subsidiary enjoy
peaceful and undisturbed possession under all such leases to which any of
them is a party as lessee with such exceptions as do not materially
interfere with the use made by the Company or such Subsidiary.
(xviii) 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.
(xix) Except for the Registration Rights Agreement between the
Company and Ackermans & van Haaran Group and Soletanche Group, no holder
of any security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company. No holder of
any security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company as part of or
under the Registration Statement.
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(xx) Neither the Company nor any Subsidiary is a party to any
agreement that currently prohibits, directly or indirectly, any Subsidiary
from paying any dividends to the Company, from making any other
distributions on such Subsidiary's capital stock, from repaying to the
Company any loans or advances to such Subsidiary or from transferring any
of such Subsidiary's property or assets to the Company or any other
Subsidiary of the Company, except as disclosed in the Prospectus.
(xxi) The Company and the Subsidiaries own or possess the right to
use all patents, trademarks, trademark registrations, service marks,
service mark registrations, trade names, copyrights, licenses, inventions,
trade secrets and rights described in the Prospectus as being owned by
them or any of them or necessary for the conduct of their respective
businesses, and the Company is not aware of any claim to the contrary or
any challenge by any other person to the right of the Company and the
Subsidiaries with respect to the foregoing.
(xxii) 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.
(xxiii) The conditions for use of a Registration Statement on Form
S-3 set forth in the General Instructions to Form S-3 have been satisfied
with respects to the Company and the transactions contemplated by this
Agreement and the Registration Statement.
(xxiv) To the knowledge of the Company after inquiry of its
executive officers and directors, there are no direct or indirect
associations or affiliations with any member of the NASD among the
Company's executive officers, directors or principal stockholders, except
as set forth in the Registration Statement or as otherwise disclosed to
the Underwriter.
(xxv) Except as disclosed in the Prospectus, there are no business
relationships or related party transactions required to be disclosed
therein by Item 404 of Regulation S-K of the Commission.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless, (i) the
Underwriter and (ii) each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Underwriter (any of
the persons referred to in this clause (ii) being hereinafter referred to as a
"controlling person") (any person referred to in clause (i) or (ii) may
hereinafter be referred to as an "Indemnified Person") to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities,
actions and expenses (including without limitation and as incurred,
reimbursement of all reasonable costs of investigating, preparing, pursuing, or
defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel employed by any
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Indemnified Person in accordance with the provisions of this Section 8) directly
or indirectly caused by, related to, based upon or arising out of, or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus (including, in
each case, any amendment or supplement thereto) or any preliminary prospectus,
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses are caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in conformity with
information relating to the Underwriter furnished in writing to the Company
expressly for use therein; PROVIDED that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of the Underwriter, or
any controlling person of the Underwriter, if a copy of the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) had not been sent or given by or on behalf of the
Underwriter to such person at or prior to the written confirmation of the sale
of Shares to such person by the Underwriter and the untrue statement or omission
(or alleged untrue statement or omission) of a material fact in such preliminary
prospectus was corrected in the Prospectus (as amended or supplemented).
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any of the Indemnified
Persons with respect to which indemnity may be sought against the Company, the
Underwriter shall promptly notify the Company in writing (provided, that the
failure to give such notice shall not relieve the Company of any liability which
it may have pursuant to this Agreement, unless and only to the extent that such
omission results in the loss or compromise of any material rights or defenses by
the Company). Upon receiving such notice, the Company shall be entitled to
participate in any such action or proceeding and to assume, at its sole expense,
the defense thereof, with counsel reasonably satisfactory to such Indemnified
Person and, after written notice from the Company to such Indemnified Person of
its election so to assume the defense thereof, the Company shall not be liable
to such Indemnified Person hereunder for legal expenses of other counsel
subsequently incurred by such Indemnified Person in connection with the defense
thereof, other than reasonable costs of investigation unless (i) the Company
agrees in writing to pay such fees and expenses, or (ii) the Company fails
promptly to assume such defense or fails to employ counsel reasonably
satisfactory to such Indemnified Person or (iii) the named parties to any such
action or proceeding (including any impleaded parties) include both such
Indemnified Person and the Company or an affiliate of the Company, and such
Indemnified Person shall have been advised by counsel either (x) that there may
be one or more legal defenses available to such Indemnified Person that are
different from or additional to those available to the Company or such affiliate
or (y) a conflict may exist between such Indemnified Person and the Company or
such affiliate (in which case, if such Indemnified Person notifies the Company
in writing, the Company shall not have the right to assume the defense thereof),
it being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of
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attorneys (in addition to any local counsel) at any time for each such
Indemnified Person. The Company shall be liable for any settlement of any such
action or proceeding effected with the prior written consent of the Company,
which consent will not be unreasonably withheld, and the Company agrees to
indemnify and hold harmless any Indemnified Person from and against any loss,
claim, damage, liability or expense by reason of any such settlement.
Notwithstanding the immediately preceding sentence, if in any case where the
fees and expenses of counsel are at the expense of the indemnifying party and an
Indemnified Person shall have requested the indemnifying party to reimburse the
Indemnified Person for such fees and expenses of counsel as incurred, such
indemnifying party agrees that it shall be liable for any settlement of any
action effected without its written consent if (i) such settlement is entered
into more than 30 days after the receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall have failed to
reimburse the Indemnified Person in accordance with such request for
reimbursement (or, if within 30 days of the receipt of the aforesaid request,
the indemnifying party shall have made a good faith written challenge to the
reasonableness of the amount or nature of the reimbursement requested or the
sufficiency of the documentation supporting the reimbursement requested (which
challenge shall specifically set forth the amount or nature of the requested
reimbursement which the indemnifying party in good faith believes to be
unreasonable or the basis for the good faith claim as to the insufficiency of
any supporting documentation), in which event this clause (ii) shall apply if
then such indemnifying party shall not have reimbursed the indemnified party for
the amount which is not being so challenged) prior to the date of such
settlement. The Company shall not, without the prior written consent of each
Indemnified Person, settle or compromise or consent to the entry of judgment in
or otherwise seek to terminate any pending or threatened action, claim,
litigation or proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not any Indemnified Person is a party thereto),
unless such settlement, compromise, consent or termination includes an
unconditional release of each Indemnified Person from all liability arising out
of such action, claim, litigation or proceeding.
(c) The Underwriter agrees to indemnify and hold harmless the
Company, its directors, officers who sign the Registration Statement, any person
controlling (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) the Company, to the same extent as the foregoing indemnity from
the Company and the Subsidiaries to each of the Indemnified Persons, but only
with respect to claims and actions based on information relating to the
Underwriter that was furnished in writing by the Underwriter expressly for use
in the Registration Statement or the Prospectus or any preliminary prospectus
and only insofar as the information included in the Registration Statement, the
Prospectus or any preliminary prospectus was presented therein in conformity
with the information furnished by the Underwriter as provided above. In case any
action or proceeding (including any governmental investigation) shall be brought
or asserted against the Company, any of its directors, any such officer, or any
such controlling person based on the Registration Statement, the Prospectus or
any preliminary prospectus in respect of which indemnity may be sought against
the Underwriter pursuant to the foregoing sentence, the Underwriter shall have
the rights and duties given to the Company (except that if the Company shall
have assumed the defense thereof, the Underwriter shall not be required to do
so, but may employ separate counsel
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<PAGE>
therein and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of the Underwriter), and the Company, its
directors, any such officers and each such controlling person shall have the
rights and duties given to the Indemnified Person by Section 8(b) above.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriter on the other hand, from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the indemnifying
parties and the indemnified party, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand,
and the Underwriter, on the other hand, shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company, bear to the total underwriting discounts and commissions received by
the Underwriter. The relative fault of the Company on the one hand and the
Underwriter on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to information
supplied by the Company on the one hand or by the Underwriter on the other, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The indemnity and contribution
obligations set forth herein of any party shall be in addition to any liability
or obligation such party may otherwise have to the other.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, the Underwriter (and its
Indemnified Persons) shall not be required to contribute, in the aggregate, any
amount in excess of the amount by which the total underwriting discount
applicable to the Shares purchased by the Underwriter exceeds the amount of any
damages which the Underwriter (and its Indemnified Persons) has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
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9. CONDITIONS TO UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter to purchase the Shares under this Agreement are subject to the
satisfaction of each of the following Conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date. All
agreements of the Company set forth in Sections 5(a) through 5(g) and
Sections 5(i), 5(l) and 5(m) of this Agreement that are required to be
performed or complied with by the Company at or prior to the Closing Date
shall have been performed or complied with by the Company at or prior to
the Closing Date. The Company shall have performed or complied in all
material respects with all of its agreements herein contained (other than
those referenced in the immediately preceding Sentence) and required to be
performed or complied with by it at or prior to the Closing Date.
(b) (i) The Registration Statement shall be effective on the date
hereof, or if a post-effective amendment is required to be filed under the
Act, such post-effective amendment shall have become effective (or, if a
post-effective amendment is required to be filed pursuant to Rule 430A
under the Act, such post-effective amendment shall have become effective)
not later than 5:00 p.m., New York City time, on the date of this
Agreement or at such later date and time as you may approve in writing
and, at the Closing Date, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been commenced or shall be pending before or
threatened by the Commission, (ii) every request for additional
information on the part of the Commission shall have been complied with in
all material respects, and (iii) no stop order suspending the sale of the
Shares in any jurisdiction referred to in Section 5(g) shall have been
issued and no proceeding for that purpose shall have been commenced or
shall be pending or threatened which would, in your reasonable judgment,
make it impracticable or inadvisable to market the Shares or to enforce
contracts for the sale of the Shares.
(c) (i) Since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
Material Adverse Change, whether or not arising in the ordinary course of
business, (ii) since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a prospective
material adverse change, in the capital stock or long-term debt, or any
material increase in short-term debt, of the Company or any of its
Subsidiaries and (iii) the Company and its Subsidiaries shall have no
liability or obligation, direct or contingent, that is material to the
Company and its Subsidiaries taken as a whole and is required to be
disclosed in the notes to its financial statements in accordance with GAAP
and which is not so disclosed in or incorporated by reference into the
Registration statement.
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<PAGE>
(d) You shall have received a certificate of the Company, dated the
Closing Date, executed on behalf of the Company by the Chief Executive
Officer and the Chief Financial Officer of the Company, in their
capacities as officers of the Company confirming the matters set forth in
paragraphs (a), (b) and (c) of this Section 9.
(e) You shall have received an opinion (satisfactory to you and your
counsel), dated the Closing Date, of McGlinchey Stafford, a Professional
Limited Liability Company, counsel for the Company, to the effect that:
(i) (A) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and (B) has the corporate power and
authority to own and lease its properties and to conduct its
business as described in the Prospectus;
(ii) the Company has the corporate power and authority to
enter into and perform this Agreement and to issue, sell and deliver
the Shares; this Agreement has been duly and validly authorized by
all necessary corporate action by the Company, and have been duly
executed and delivered by the Company;
(iii) the authorized capital stock of the Company conforms as
to legal matters to the description thereof contained in the
"Description of Capital Stock" section of the Registration Statement
and the Prospectus;
(iv) the Shares have been duly authorized for issuance and
sale to the Underwriter pursuant to this Agreement;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) neither the issuance and sale of the Shares, nor the
performance of the Company's obligations pursuant to this Agreement
will (A) conflict with, result in a breach of, or constitute a
default under the terms of any Louisiana statute, rule or regulation
to which the Company or any of its properties is subject Company or
(B) violate any of the provisions of the charter or by-laws of the
Company as in effect on the date of the opinion;
(vii) the articles of incorporation and bylaws of the Company
conform to the descriptions thereof contained in the Registration
Statement and the Prospectus and the provisions of Louisiana law
described in the Registration Statement and the Prospectus conform
to the descriptions thereof contained in the Registration Statement
and the Prospectus.
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(f) You shall have received an opinion (satisfactory to you and your
counsel), dated the Closing Date, of Baker & McKenzie and Brons & Salas,
Venezuelan and Argentine counsel for the Company, respectively, to the
effect that:
(i) Each of Pride International, C.A., Perforaciones
Quitral-Co de Venezuela, S.A. and Pride International, S.A. (the
"South American Subsidiaries") (A) has been duly organized and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation and (B) has the corporate power
and authority to own and lease its properties and to conduct its
business as described in the Prospectus;
(ii) each of the South American Subsidiaries is duly qualified
and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
Material Adverse Effect;
(iii) all of the issued and outstanding capital stock of each
of the South American Subsidiaries has been duly authorized and
validly issued, and is fully paid and nonassessable, and except as
disclosed in the Prospectus, the shares of capital stock of each
South American Subsidiary are owned directly or indirectly by the
Company free and clear of any perfected security interest and, to
such counsel's knowledge, any other security interests, claims,
liens or encumbrances; and
(iv) to such counsel's knowledge, except as disclosed in the
Prospectus or in this Agreement, there are no outstanding (a)
securities or obligations of the any of the South American
Subsidiaries convertible into or exchangeable for any capital stock
of any such Subsidiary, (b) warrants, rights or options to subscribe
for or purchase from any such Subsidiary any such capital stock or
any such convertible or exchangeable securities or obligations, or
(c) obligations of any such subsidiary to issue any shares of
capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(g) You shall have received the written opinion of Philippe Colet,
Associate General Counsel of Forasol S.A., addressed to the Underwriter
and dated the Closing Date to the effect that:
(i) each of Forasol S.A., Foramer S.A. and Forinter Ltd. (the
"Forasol Subsidiaries") has been duly incorporated and is validly
existing as a corporation under the laws of France, with full
corporate power and authority to own its properties and to conduct
its business as described in the Registration Statement and the
Prospectus;
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(ii) each of the Forasol Subsidiaries is duly qualified and is
in good standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a Material
Adverse Effect;
(iii) all of the issued and outstanding capital stock of each
of the Forasol Subsidiaries has been duly authorized and validly
issued, and is fully paid and nonassessable, and except as disclosed
in the Prospectus and such minimum minority interests as may be
required by applicable French law, the shares of capital stock of
each Forasol Subsidiary are owned directly or indirectly by the
Company free and clear of any perfected security interest and, to
such counsel's knowledge, any other security interests, claims,
liens or encumbrances.
(h) You shall have received an opinion (satisfactory to you and your
counsel), dated the Closing Date, of Baker & Botts, L.L.P., counsel for
the Company, to the effect that:
(i) to such counsel's knowledge, except as disclosed in the
Prospectus, there are no outstanding (a) securities or obligations
of the Company or any of its subsidiaries convertible into or
exchangeable for any capital stock of the Company or any such
subsidiary, (b) warrants, rights or options to subscribe for or
purchase from the Company or any such subsidiary any such capital
stock or any such convertible or exchangeable Securities or
obligations, or (c) obligations of the Company or any such
subsidiary to issue any shares of capital stock, any such
convertible or exchangeable Securities or obligations, or any such
warrants, rights or options, other than options exercisable for
100,000 shares of Common Stock granted in June 1997 to Ray A.
Tolson;
(ii) This Agreement (assuming the due authorization, execution
and delivery hereof by the Company and the valid authorization,
execution and delivery by the Underwriter) is a valid and binding
agreement of the Company enforceable in accordance with its terms
(except as rights to indemnity and contribution hereunder may be
limited by applicable law) subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws then or thereafter in effect relating to or affecting
rights and remedies of creditors, and to general principles of
equity (regardless of whether enforcement is sought in a proceeding
at law or in equity) and to the discretion of the court before which
any proceeding therefor may be brought;
(iii) the Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule
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424(b); and to the knowledge of such counsel no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings therefor initiated or threatened by the
Commission;
(iv) each document previously filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus, at the time it
was filed or last amended (except for financial statements, the
notes thereto and related schedules and other financial, numerical,
statistical or accounting data included or incorporated by reference
therein or omitted therefrom, as to which such counsel need express
no opinion), appeared on its face to comply as to form in all
material respects to the applicable requirements of the Exchange
Act.
(v) to the knowledge of such counsel, no authorization,
approval, consent or order of any court or United States Federal or
State, governmental authority or agency is required to be obtained
by the Company in connection with the sale by the Company of the
Shares to you, except (a) such as have been obtained under the Act,
and (b) such as may be required by one NASD or under the state
securities or Blue Sky laws or regulations of any jurisdiction in
the United States in connection with the purchase and distribution
of the Shares by the Underwriter;
(vi) the respective provisions of the Indenture described in
the Registration Statement and the Prospectus conform in all
material respects to the respective descriptions thereof contained
in the Registration Statement and the Prospectus;
(vii) the Registration Statement, at the time it became
effective, and the Prospectus, on its issue date and on the Closing
Date (except, in each case, for financial statements, the notes
thereto, the auditors' report thereon and related schedules and
other financial, numerical, statistical or accounting data included
or incorporated by reference therein or omitted therefrom, as to
which no opinion need be expressed), appeared on their face to
comply as to form in all material respects with the applicable
requirements of the Act; to the knowledge of such counsel, there are
no contracts or agreements to which the Company or any Subsidiary is
a party or by which any of them may be bound that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement other than those
described therein or filed or incorporated by reference as exhibits
thereto;
(viii) neither the issuance and sale of the Shares, nor the
performance of the Company's obligations pursuant to this Agreement
will conflict with, result in a breach of, or constitute a default
under (A) the terms of any indenture or other agreement or
instruments and to which the Company or any subsidiary is a party or
bound which is material to the Company and its Subsidiaries
considered as a whole
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and of which such counsel has knowledge, (B) any statute, rule or
regulation to which the Company or any Subsidiary is a party or by
which any of them is bound, or to which any of the properties of the
Company or any Subsidiary is subject, or (C) any order of any court
or governmental agency or body having jurisdiction over the Company
or any Subsidiary or any of their properties of which such counsel
has knowledge;
(ix) to the knowledge of such counsel, there is no current,
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary or to which any of their respective
property is subject of a character required to be disclosed in the
Registration Statement which is not disclosed in the Prospectus;
(x) the Company is not, and will not be as a result of the
consummation of the transactions contemplated by this Agreement, an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940,
as amended;
(xi) to the knowledge of such counsel, no holder of any
security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company as part
of or under the Registration statement;
(i) You shall have received an opinion (satisfactory to you and your
counsel), dated the Closing, of Robert W. Randall, General Counsel of the
Company, to the effect that:
(i) each of the Subsidiaries that has been organized under the
laws of a state of the United States (the "U.S. Subsidiaries") has
been duly organized and is validly existing as corporations in good
standing under the laws of its jurisdiction of incorporation and has
the corporate power and authority to own and lease its properties
and to conduct its business as described in the Prospectus;
(ii) the Company and each of the U. S. Subsidiaries is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified
would not have a Material Adverse Effect;
(iii) all of the issued and outstanding capital stock of each
of the U. S. Subsidiaries has been duly authorized and validly
issued, and is fully paid and nonassessable, and except as disclosed
in the Prospectus, the shares of capital stock of each U.S.
Subsidiary are owned directly or indirectly by the Company free and
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clear of any perfected security interest and, to such counsel's
knowledge, any other security interests, claims, liens or
encumbrances;
(iv) to such counsel's knowledge, except as disclosed in the
Prospectus, there are no outstanding (a) securities or obligations
of the Company or any of its subsidiaries convertible into or
exchangeable for any capital stock of the Company or any such
subsidiary, (b) warrants, rights or options to subscribe for or
purchase from the Company or any such subsidiary any such capital
stock or any such convertible or exchangeable Securities or
obligations, or (c) obligations of the Company or any such
subsidiary to issue any shares of capital stock, any such
convertible or exchangeable Securities or obligations, or any such
warrants, rights or options, other than options exercisable for
100,000 shares of Common Stock granted in June 1997 to Ray A.
Tolson;
(v) neither the issuance and sale of the Shares, nor the
performance of the Company's obligations pursuant to this Agreement
will violate any of the provisions of the charter or by-laws of the
Company or any U.S. Subsidiary as in effect on the date of the
opinion;
(vi) to the knowledge of such counsel, no holder of any
security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company as part
of or under the Registration Statement;
(vii) to the knowledge of such counsel, there is no current,
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary or to which any of their respective
property is subject of a character required to be disclosed in the
Registration Statement which is not disclosed in the Prospectus;
(viii) except as will not have a Material Adverse Effect, to
the knowledge of such counsel, each of the Company and its
Subsidiaries has such Permits as are in all material respects,
necessary to own, lease and operate their respective properties and
to conduct their respective businesses in the manner described in
the Prospectus; to the knowledge of such counsel, each of the
Company and its Subsidiaries has fulfilled and performed all of its
material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or result in any other material
impairment of the rights of the holder of any such Permit, subject
in each case to such qualification as may be set forth in the
Prospectus;
(ix) to the knowledge of such counsel, neither the issuance
and sale of the Shares, nor the performance of the Company's
obligations pursuant to this
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Agreement will (A) conflict with, result in a breach of, or
constitute a default under the terms of any material indenture or
other material agreement or instrument to which any Subsidiary is a
party or bound, or constitute a default under, any statutes rule or
regulation to which any Subsidiary is a party or by which any of
them is bound, or to which any of the properties of any non-U.S.
Subsidiary is subject, or any order of any court or governmental
agency or body having jurisdiction over any non-U.S. Subsidiary or
any of their properties, except as will not have a Material Adverse
Effect, or (B) violate any of the provisions of the charter or
by-laws of any non-U.S. Subsidiary as in effect on the date of the
opinion; and
(x) the respective provisions of the employment agreements and
the Pride International, Inc. Long-Term Incentive Plan described in
the Company's proxy statement incorporated by reference into the
Prospectus conform in all material respects to the respective
descriptions thereof contained in such proxy statement.
In addition, each of Baker & Botts, L.L.P. and Robert W. Randall
shall state that such counsel has participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company, your representatives and
your counsel at which the contents of the Registration Statement and
Prospectus and related matters were discussed and, although such counsel
did not independently verify such information and is not passing upon and
does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
Prospectus, on the basis of the foregoing (relying as to the factual
matters upon the statements of officers and other representatives of the
Company and state officials and as to materiality to a large degree on
officers and other representatives of the Company and your
representatives) no facts came to such counsel's attention that led such
counsel to believe that the Registration Statement (other than the
financial statements, the notes thereto and the auditors' report thereon
and other financial, numerical, statistical and accounting data included
or incorporated by reference therein, or omitted therefrom, as to which
such counsel need express no belief) as amended or supplemented, at the
time such Registration Statement or any post-effective amendment became
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or the Prospectus (other than the
financial statements and notes thereto and other financial, numerical,
statistical and accounting data included or incorporated by reference
therein, or omitted therefrom, as to which such counsel need express no
belief) as amended or supplemented, as of its date and the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
The opinion of McGlinchey Stafford shall be limited to the laws of
the State of Louisiana. The opinion of Baker & Botts, L.L.P. shall be
limited to the laws of the United
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States and the laws of the State of New York and the State of Texas. The
opinion of Robert W. Randall shall be limited to the laws of the United
States, the laws of the State of Texas, and the corporate law of the State
of Delaware. The opinion of each foreign counsel shall be limited to the
laws of the jurisdiction in which the Foreign Subsidiary with respect to
which such opinion is given is organized.
(j) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Vinson & Elkins L.L.P., counsel for the Underwriter,
in form and substance reasonably satisfactory to you.
(k) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the former, based on limited
procedures), in form and substance satisfactory to you, from Coopers &
Lybrand L.L.P., and Ernst & Young, L.L.P., independent public accountants
and any other independent public accountants deemed necessary by counsel
for the Underwriter, with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
(l) Prior to the Closing Date, the Company shall have furnished to
you or caused to be furnished to you such further information,
certificates and documents as you may reasonably request.
(m) The Company shall not have failed at or prior to the Closing
Date to perform or comply with any of the agreements herein contained and
required to be performed or complied with by the Company at or prior to
the Closing Date.
(n) There shall not have been any announcement by any "nationally
recognized statistical rating organization," as defined for purposes of
Rule 436(g) under the Act, nor shall any such organization have advised
the Company or the Underwriter, that (i) it is downgrading its rating
assigned to any class of securities of the Company or (ii) it is reviewing
any such rating with a view to possible downgrading, or with negative
implications, or direction not determined.
10. DEFAULTS AND TERMINATION. This Agreement may be terminated at any time
prior to the Closing Date by you by written notice to the Company if any of the
following has occurred: (i) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any material adverse
change or development involving a prospective material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries, taken as
a whole, or the earnings, affairs, or business prospects of the Company or any
of its subsidiaries, taken as a whole, whether or not arising in the ordinary
course of business, which would, in your judgment, make it impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus,
(ii) any outbreak or escalation of hostilities or other national or
international calamity
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or crisis or change in economic conditions or in the financial markets of the
United States or elsewhere that, in your judgment, is material and adverse and
would, in your judgment, make it impracticable to market the Shares on the terms
and in the manner contemplated in the Prospectus, (iii) the suspension or
material limitation of trading in securities on the New York Stock Exchange or
the American Stock Exchange or limitation on prices for securities on any such
exchange, (iv) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects,
or will materially and adversely affect, the business or operations of the
Company or any Subsidiary, (v) the declaration of a banking moratorium by either
federal or New York State authorities or (vi) the taking of any action by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
The indemnity and contribution provisions and the other agreements,
representations and warranties set forth in or made pursuant to this Agreement
shall remain operative and in full force and effect, and will survive delivery
of and payment for the Shares, regardless of (i) any investigation, or statement
as to the results thereof, made by the Underwriter or by or on behalf of the
Company or the officers or directors of the Company or any controlling person of
the Company, (ii) acceptance of the Shares and payment for them hereunder and
(iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriter pursuant to
clause (i) of the first paragraph of this Section 10 as a result of any act or
omission of the Company or because of the failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, the Company agrees to reimburse you for all reasonable out-of-pocket
expenses (including the reasonable fees and disbursements of counsel) incurred
by you. Notwithstanding any termination of this Agreement, the Company shall be
liable for all expenses which it agrees to pay pursuant to Section 6 hereof.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Subsidiaries, the Underwriter, any indemnified party referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The terms "successors and assigns" shall not include a
purchaser of any of the Shares from the Underwriter merely because of such
purchase.
11. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to it at 5847
San Felipe, Suite 3300, Houston, Texas 77057, Attention: Robert W. Randall, with
a copy to Baker & Botts, L.L.P., at 3000 One Shell Plaza, Houston, Texas 71002,
Attention: J. David Kirkland, Esq., (b) if to the Underwriter, to Donaldson,
Lufkin & Jenrette Securities Corporation, 140 Broadway, New York, New York
10005, Attention: Syndicate Department and, in each case, with a copy to Vinson
& Elkins L.L.P., 1001 Fannin, Suite
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2300, Houston, Texas 77002, Attention: T. Mark Kelly, or in any case to such
other address as the person to be notified may have requested in writing.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY
WITHIN THE STATE OF NEW YORK.
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This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument. Please confirm that the foregoing
correctly sets forth the agreement among the Company and you.
Very truly yours,
PRIDE INTERNATIONAL, INC.
By /s/ PAUL A. BRAGG
Paul A. Bragg
President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
Date first above written.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By /s/ J. KENT SWEEZEY
J. Kent Sweezey
Managing Director
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