EXHIBIT 1.1
3,444,560 Shares
CAL DIVE INTERNATIONAL, INC.
COMMON STOCK (NO PAR VALUE)
UNDERWRITING AGREEMENT
May 21, 2002
May 21, 2002
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
▇▇▇▇▇▇▇ & Company International
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
Cal Dive International, Inc., a Minnesota corporation (the
"COMPANY"), proposes to sell to the several Underwriters named in Schedule I
hereto (the "UNDERWRITERS") 3,444,560 shares of the common stock, no par value
(the "FIRM SHARES"), of the Company. The Company also proposes to issue and sell
to the several Underwriters not more than an additional 516,684 shares of the
common stock, no par value, of the Company (the "ADDITIONAL SHARES") if and to
the extent that you, as Managers of the offering, shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such shares of
common stock granted to the Underwriters in Section 2 hereof. The Firm Shares
and the Additional Shares are hereinafter collectively referred to as the
"SHARES." The shares of common stock, no par value, of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "COMMON STOCK."
The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement, including a prospectus,
relating to the Shares. The registration statement as amended at the time it
became effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS."
If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the
term "REGISTRATION STATEMENT" shall be deemed to include such Rule 462
Registration Statement (including, in the case of all references to the
Registration Statement and the Prospectus, documents incorporated therein by
reference).
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect; and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii)
the Registration Statement, when it became effective, did not contain
and, as amended or supplemented, if applicable, will not contain any
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 not misleading, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iv)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each of Louisiana and Texas, the only jurisdictions in
which the conduct of the Company's business or its ownership or leasing
of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(d) Each subsidiary of the Company has been duly organized, is
validly existing in good standing under the laws of the jurisdiction of
its organization, has the power and authority (corporate or otherwise)
to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company (except for approximately 15% of
the outstanding capital stock of Cal Dive ROV, Inc.), free and clear of
all liens, encumbrances, equities or claims, except for liens granted
in connection with the Second Amended and Restated Loan and Security
Agreement with Fleet Capital Corporation, Southwest Bank of Texas,
N.A., and Whitney National Bank, dated as of February 22, 2002, and the
Security Agreement between Cal Dive I-Title XI, Inc., and the United
States of America, acting through the Secretary of Transportation,
dated as of August 16, 2000, as amended (such agreements are
collectively referred to herein as the "CREDIT AGREEMENTS").
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(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock currently outstanding have been
duly authorized and are validly issued, fully paid and non-assessable.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the 1997 Amended
and Restated Articles of Incorporation (the "ARTICLES OF
INCORPORATION") or the Amended and Restated Bylaws (the "BYLAWS"), in
each case as amended to the date hereof, of the Company or any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement,
except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Shares.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(l) 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 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(m) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not
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be required to register as an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(n) Except as otherwise noted below, the historical
information underlying the estimates of the reserves of the Company
supplied by the Company to ▇▇▇▇▇▇ and ▇▇▇▇▇, Ltd. ("▇▇▇▇▇▇ AND ▇▇▇▇▇"),
independent petroleum engineers with respect to the Company (as
described in Exhibit B), for the purposes of reviewing the reserve
reports of the Company referenced in the Prospectus (the "RESERVE
REPORTS"), including, without limitation, production volumes, sales
prices for production, contractual pricing provisions under oil or gas
sales or marketing contracts or under hedging arrangements, costs of
operations and development, and working interest and net revenue
information relating to the Company's ownership interests in
properties, was true and correct in all material respects on the date
of each such Reserve Report; the estimates of future capital
expenditures and other future exploration and development costs
supplied to ▇▇▇▇▇▇ and ▇▇▇▇▇ were reviewed in good faith and with a
reasonable basis; the information provided to ▇▇▇▇▇▇ and ▇▇▇▇▇ for
purposes of reviewing the Reserve Reports was prepared in accordance
with customary industry practices; to the best of the Company's
knowledge, ▇▇▇▇▇▇ and ▇▇▇▇▇ was, as of the date of each of the Reserve
Reports reviewed by it, and are, as of the date hereof, independent
petroleum engineers with respect to the Company; other than normal
production of reserves and intervening spot market product price
fluctuations, and except as disclosed in the Registration Statement and
the Prospectus, the Company is not aware of any facts or circumstances
that would result in a materially adverse change in the reserves in the
aggregate, or the aggregate present value of future net cash flows
therefrom, as described in the Prospectus and as reflected in the
Reserve Reports; estimates of such reserves and the present value of
the future net cash flows therefrom as described in the Prospectus and
reflected in the Reserve Reports comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder. The Company's proved reserves include the
initial reserves assigned to the Company's ownership in Gunnison, which
constitute over 75% of the Company's reported proved reserves. The
reserves assigned to Gunnison were not prepared by the Company nor were
they reviewed by ▇▇▇▇▇▇ & ▇▇▇▇▇. Instead they were computed as 15% of
the reserves reported by the operator ▇▇▇▇-▇▇▇▇▇ Oil & Gas Corporation,
Inc. ("▇▇▇▇-▇▇▇▇▇"). The Company has been advised that the reserve
estimates provided by ▇▇▇▇-▇▇▇▇▇ were prepared by their own engineering
staff. The Company (i) is not aware of any facts or circumstances that
would result in a materially adverse change in the reserves in the
aggregate, or the aggregate present value of future net cash flows
therefrom, as described in the Prospectus; and (ii) believes that the
Gunnison reserves, as described in the Prospectus, were estimated in a
manner that complied in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(o) The Company's estimates of oil and natural gas reserves in
the Registration Statement and Prospectus were prepared in good faith
and with a reasonable basis; the information used to arrive at such
estimates was prepared in accordance with customary industry practices;
other than normal production of reserves and intervening spot market
product price fluctuations, and except as disclosed in the Registration
Statement and the Prospectus, the Company is not aware of any facts or
circumstances
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that would result in a materially adverse change in such estimates in
the aggregate, or the aggregate present value of future net cash flows
therefrom, as described in the Prospectus; and estimates of such
reserves and the present value of the future net cash flows therefrom
as described in the Prospectus comply in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
(p) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses as presently
conducted and (iii) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole. There has been no storage, disposal,
generation, transportation, handling or treatment of hazardous
substances or solid wastes by the Company and its subsidiaries (or to
the knowledge of the Company, any of their predecessors in interest)
at, upon or from any of the property now or previously owned or leased
by the Company and its subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which
requires remedial action by the Company and its subsidiaries under any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action that would not
result in, or which would not be reasonably likely to result in,
singularly or in the aggregate with all such violations and remedial
actions, a material adverse effect on the Company and its subsidiaries,
taken as a whole, and there has been no spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any solid
wastes or hazardous substances due to or caused by the Company and its
subsidiaries, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not result in or
would not be reasonably likely to result in, singularly or in the
aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a material adverse effect
on the Company and its subsidiaries, taken as a whole. For purposes of
this provision, the terms "hazardous substances" and "solid wastes"
shall have the meanings specified in any applicable Environmental Laws.
(q) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) that would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(r) The description of services to be performed by
non-coastwise qualified vessels set forth in the letter dated February
10, 1997 of Robins, Kaplan, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., special counsel to
the Company, to the U.S. Commissioner of Customs, Office of
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Regulations and Rulings, completely and correctly describes in all
material respects the manner in which the Company and its subsidiaries
currently operate the marine vessels described in the Prospectus (the
"VESSELS"). At no time during the Company or any subsidiary's ownership
of the Vessels have any of the Vessels been sold, chartered or
otherwise transferred to any person or entity in violation of any
applicable laws, rules or regulations. The Vessels and classifications
of such Vessels are appropriate for the Company's business, except for
Vessels or classifications which would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(s) Except (i) as described in the Prospectus, (ii) as
provided in the Share Exchange Rights Agreement dated as of January 2,
2002 between the Company and Cal Dive ROV, Inc. and (iii) as provided
in the First Amended and Restated 1995 Registration Rights Agreement
dated as of April 11, 1997, among the Company, First Reserve Secured
Energy Assets Fund, Limited Partnership, First Reserve Fund V, Limited
Partnership, First Reserve Fund V-2, Limited Partnership, First Reserve
Fund VI, Limited Partnership, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇ and S.
▇▇▇▇▇ ▇▇▇▇▇▇, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares
registered pursuant to the Registration Statement. All such rights to
require the Company to include securities with the Shares registered
pursuant to the Registration Statement have been validly waived
pursuant to the terms of any such agreement or understanding.
(t) The Company and its subsidiaries own or possess adequate
patent rights or licenses or other rights to use patent rights,
inventions, trademarks, service marks, trade names, copyrights,
technology and know-how necessary to conduct the general business now
or proposed to be operated by them as described in the Prospectus,
except where failure to do so would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole; neither the
Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect
to any patent, patent rights, inventions, trademarks, service marks,
trade names, copyrights, technology or know-how which, singularly or in
the aggregate, would have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(u) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any such
subsidiary has been refused any insurance coverage sought or applied
for; and except as described in the Prospectus neither the Company nor
any such subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
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2. Agreements to Sell and Purchase. The Company hereby agrees
to sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $22.1178 a share (the "PURCHASE PRICE").
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to sell to the Underwriters the Additional Shares and the Underwriters shall
have a one-time right to purchase, severally and not jointly, on a pro-rata
basis from the Company up to 516,684 Additional Shares at the Purchase Price. If
you, on behalf of the Underwriters, elect to exercise such option, you shall so
notify the Company in writing not later than 30 days after the date of this
Agreement, which notice shall specify the number of Additional Shares to be
purchased by the Underwriters and the date on which such shares are to be
purchased. Such date may be the same as the Closing Date (as defined below) but
not earlier than the Closing Date nor later than ten business days after the
date of such notice. Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each Underwriter agrees, severally and not jointly, to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may determine) that bears the same proportion to the total number
of Additional Shares to be purchased as the number of Firm Shares set forth in
Schedule I hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
The Company hereby agrees that, without the prior written
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Underwriters, it
will not, during the period ending 90 days after the date of the Prospectus, (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, provided that the Company may grant options under
the Company's existing plans to employees who are not officers or directors of
the Company, or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to
be sold hereunder, (B) the issuance by the Company of shares of Common Stock
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof of which the Underwriters have been advised in
writing or (C) transactions by any person other than the Company in shares of
Common Stock or other securities that in either case were acquired in open
market transactions after the completion of the offering of the Shares.
3. Terms of Public Offering. The Company is advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after this Agreement has become effective as in
your judgment is advisable. The Company is further advised by you that the
Shares are to be offered to the public initially at $23.16 a share (the "PUBLIC
OFFERING PRICE") and to certain dealers selected by you at a price that
represents a concession not in excess of $0.67 a share under the Public Offering
Price, and that any
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Underwriter may allow, and such dealers may reallow, a concession, not in excess
of $0.00 a share, to any Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be
made in one sum by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the several Underwriters to the
Company in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on May 28, 2002, or at such
other time on the same or such other date, not later than June 4, 2002, as shall
be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE".
Payment for any Additional Shares shall be made to the Company
in Federal or other funds immediately available in New York City against
delivery of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than July 4, 2002, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "OPTION CLOSING DATE".
Certificates for the Firm Shares and Additional Shares shall
be in definitive form and registered in such names and in such denominations as
you shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The
obligations of the Company to sell the Shares to the Underwriters and the
several obligations of the Underwriters to purchase and pay for the Shares on
the Closing Date are subject to the condition that the Registration Statement
shall remain effective on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) if applicable, there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or
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supplements thereto subsequent to the date of this Agreement)
that, in your judgment, is material and adverse and that makes
it, in your judgment, impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date,
and on the Option Closing Date, if any, a certificate, dated the
Closing Date, or the Option Closing Date, as the case may be, and
signed by an executive officer of the Company, to the effect set forth
in Section 5(a)(i) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and
correct as of the Closing Date, or as of the Option Closing Date, as
the case may be, and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date, or the
Option Closing Date, as the case may be.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Corporate Secretary and Special Counsel
of the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of Minnesota, has the corporate power and authority
to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) the authorized capital stock of the Company conforms
as to legal matters to the description thereof contained in
the Prospectus;
(iii) the shares of Common Stock currently outstanding
have been duly authorized and are validly issued, fully paid
and non-assessable;
(iv) the Shares have been duly authorized and, when issued
and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive
or similar rights;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement will not contravene any provision of applicable law,
except for such violations of
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applicable law as would not, individually or in the aggregate,
have a material adverse effect on the performance by the
Company of its obligations under this Agreement or the
consummation of the transactions herein described, or the
Articles of Incorporation or Bylaws, in each case as amended
to the date hereof, of the Company;
(vii) the statements (A) in the Prospectus under the
caption "Description of Capital Stock" and (B) in the
Registration Statement in Item 15, in each case insofar as
such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, accurately
present, in all material respects, the information called for
with respect to such legal matters, documents and proceedings
and accurately summarize, in all material respects, the
matters referred to therein;
(d) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇ ▇▇▇▇▇ Connor, III, the General Counsel of the
Company, dated the Closing Date, to the effect that:
(i) each subsidiary of the Company has been duly
organized, is validly existing in good standing under the laws
of the jurisdiction of its organization, has the power and
authority (corporate or otherwise) to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(ii) all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
are owned directly or indirectly by the Company (except for
approximately 15% of the outstanding capital stock of Cal Dive
ROV, Inc.), free and clear of all liens, encumbrances,
equities or claims, except for liens granted in connection
with the Credit Agreements;
(iii) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement will not contravene any provision of applicable law,
except for such violations of applicable law as would not,
individually or in the aggregate, have a material adverse
effect on the performance by the Company of its obligations
under this Agreement or the consummation of the transactions
herein described, or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency
-10-
is required for the performance by the Company of its
obligations under this Agreement, except such as have been
obtained under the Act and such as may be required by the
securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares;
(iv) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or other
documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described
or filed as required; and
(v) such counsel is of the opinion that the Registration
Statement and Prospectus (except for financial statements and
schedules and other financial and statistical data included
therein as to which such counsel need not express any opinion)
comply as to form in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder. In addition, such opinion shall state that no
facts have come to the attention of such counsel that would
cause such counsel to believe that the Registration Statement
and the prospectus included therein at the time the
Registration Statement became effective contained any untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to
make the statements therein not misleading (it being
understood that such counsel expresses no view with respect to
the financial statements and schedules and other financial and
statistical data set forth or referred to in the Registration
Statement or any exhibits thereto), and no facts have come to
the attention of such counsel that would cause such counsel to
believe that the Prospectus contains any untrue statement of a
material fact 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 (it being
understood that such counsel expresses no view with respect to
the financial statements and schedules and other financial and
statistical data set forth or referred to in the Registration
Statement or any exhibits thereto).
(e) The Underwriters shall have received on the Closing Date
an opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement will not contravene any provision of applicable law,
except for such violations of applicable law as would not,
individually or in the aggregate, have a material adverse
effect on the performance by the Company of its obligations
under this Agreement or the consummation of the transactions
herein described, or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and
-11-
its subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, except
such as have been obtained under the Act and such as may be
required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares;
(ii) the statements in the Prospectus under the caption
"Description of Capital Stock," insofar as such statements
constitute summaries of the documents referred to therein,
accurately present, in all material respects, the information
called for with respect to such documents and accurately
summarize, in all material respects, such documents;
(iii) after due inquiry, such counsel does not know of any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
(iv) the Company is not an "investment company" as such
term is defined in the Investment Company Act of 1940, as
amended; and
(v) such counsel (A) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Registration Statement and the Prospectus
(except for financial statements and schedules and other
financial and statistical data included therein as to which
such counsel need not express any opinion) complied when so
filed as to form in all material respects with the Exchange
Act, and the applicable rules and regulations of the
Commission thereunder, and (B) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical
data included therein as to which such counsel need not
express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder. In addition, such
opinion shall state that no facts have come to the attention
of such counsel that would cause such counsel to believe that
the Registration Statement and the prospectus included therein
at the time the Registration Statement became effective
contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading (it being understood that such counsel expresses no
view with respect to the financial statements and schedules
and other financial and statistical data set forth or referred
to in the Registration Statement or any exhibits thereto), and
no facts have come to the attention of such counsel that would
cause such counsel to believe that the Prospectus contains any
untrue statement of a material fact 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 (it being understood that such counsel expresses no
view with
-12-
respect to the financial statements and schedules and other
financial and statistical data set forth or referred to in the
Registration Statement or any exhibits thereto).
(f) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, dated
the Closing Date, (A) covering the matters referred to in Section
5(e)(ii) above and the matters referred to in Section 5(e)(v)(B) and in
the last sentence of Section 5(e)(v) above and (B) to the effect that
the statements in the Prospectus under the caption "Underwriters",
insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, accurately present, in
all material respects, the information called for with respect to such
legal matters, documents and proceedings and accurately summarize, in
all material respects, the matters referred to therein.
With respect to Section 5(d)(xi) above, the General Counsel of
the Company, and with respect to Section 5(e)(v) above, Fulbright &
▇▇▇▇▇▇▇▇ L.L.P., may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto and documents
incorporated by reference and review and discussion of the contents
thereof, but is without independent check or verification except as
specified. With respect to Section 5(e)(v) above, ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.
may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (other than the
documents incorporated by reference) and upon review and discussion of
the contents thereof (including documents incorporated by reference),
but are without independent check or verification except as specified.
The opinions of the Corporate Secretary and Special Counsel of
the Company, the General Counsel of the Company and Fulbright &
▇▇▇▇▇▇▇▇ L.L.P. described in Sections 5(c), 5(d) and 5(e) above shall
be rendered to the Underwriters at the request of the Company and shall
so state therein.
(g) ▇▇▇▇▇▇ and ▇▇▇▇▇, Ltd., such firm constituting independent
petroleum engineering consultants (the "ENGINEERING CONSULTANTS"),
shall have delivered to you on the date of this Agreement a letter (the
"RESERVE LETTER") and also on the Closing Date a letter dated the
Closing Date, in each case in form and substance reasonably
satisfactory to you and substantially in the form attached hereto as
Exhibit B, stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as
of which specified information with respect to the oil and gas reserves
is given or incorporated in the Prospectus as of the date not more than
five days prior to the date of such letter), the conclusions and
findings of such firm with respect to the oil and gas reserves of the
Company. As noted in Section 1(n) above, the Company's proved reserves
include the initial reserves assigned to the Company's ownership in
Gunnison, which were not prepared by the Company nor were they reviewed
by ▇▇▇▇▇▇ and ▇▇▇▇▇.
(h) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in
-13-
form and substance satisfactory to the Underwriters, from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus; provided that the letter delivered on the Closing
Date shall use a "cut-off date" not earlier than the date hereof.
(i) The "lock-up" agreements, each substantially in the form
of Exhibit A hereto, between you and each executive officer and
director of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities,
delivered to you on or before the date hereof, shall be in full force
and effect on the Closing Date. The parties hereby agree that such
lock-up agreements shall not prohibit the sale beginning 30 days after
the date hereof of up to an aggregate of 30,000 shares of Common Stock
by the Company's executive officers.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the delivery to you on the
Option Closing Date of such documents as you may reasonably request
with respect to the good standing of the Company, the due authorization
and issuance of the Additional Shares and other matters related to the
issuance of the Additional Shares.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish you, without charge, five signed copies of the
Registration Statement (including exhibits thereto and documents
incorporated by reference) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto
but including documents incorporated by reference) and, during the
period mentioned in Section 6(c) below, as many copies of the
Prospectus, any documents incorporated by reference, and any
supplements and amendments thereto as you may reasonably request. The
terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents subsequently filed by the Company with the
Commission pursuant to the Exchange Act that are deemed to be
incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel
-14-
for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on
behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending June 30, 2003 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
7. Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company
agrees to pay or cause to be paid all expenses incident to the performance of
its obligations under this Agreement, including: (i) the fees and disbursements
of the Company's counsel and the Company's accountants in connection with the
registration and delivery of the Shares under the Securities Act and all other
fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 6(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) all fees and expenses in connection
with the preparation and filing of the registration statement on Form 8-A
relating to the Common Stock, if required, and all costs and expenses incident
to listing the Shares on the Nasdaq National Market, (vi) the cost of printing
certificates representing the Shares, (vii) the costs and charges of any
transfer agent, registrar or depositary, (viii) the costs and expenses of the
Company relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Shares, including, without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show
-15-
as mutually agreed by the Company and the Underwriters, and (ix) all other costs
and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section, Section 8 entitled
"INDEMNITY AND CONTRIBUTION", and the last paragraph of Section 10 below, the
Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of any of
the Shares by them and any advertising expenses connected with any offers they
may make.
8. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
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 and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements
thereto), or caused by 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 or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving use to such losses,
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement 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 such Underwriter, but only
with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for
use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant
-16-
to Section 8(a) or 8(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, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the 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 indemnifying party and the indemnified 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
respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if
any, who control any Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act and (ii) the
fees and expenses of more than one separate firm (in addition to any
local counsel) for the Company, its directors, its officers who sign
the Registration Statement 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. Such firm or firms shall be
designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated in the case
of parties indemnified pursuant to Section 8(a) and by the Company in
the case of parties indemnified pursuant to Section 8(b). 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 agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying
party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in Section
8(a) or 8(b) is, other than pursuant to the terms of such Section,
unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid
or payable by such indemnified
-17
party as a result of such losses, claims, damages or liabilities (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation
provided by clause 8(d)(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 8(d)(i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the
same respective proportions as the total net proceeds from the offering
of the Shares (before deducting expenses) received by the Company on
the one hand and the total underwriting discounts and commissions
received by the Underwriters on the other hand, in each case as set
forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of
the Company on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are
several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 8. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages that such Underwriter 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 Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
8 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in
this Section 8 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any
-18-
termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter,
the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Shares.
9. Termination. This Agreement shall be subject to termination
by notice given by you to the Company, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 9(a)(i) through 9(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
If, on the Closing Date or the Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares that it has or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I bears to the
aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 10 by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased, and arrangements satisfactory to you and
the Company for the purchase of such Firm Shares are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
-19-
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law.
(a) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without
giving effect to any conflicts of laws provisions thereof that would
require the application of different law.
(b) Each of the parties hereto hereby irrevocably submits
itself to the jurisdiction of the Federal District Court for the
Southern District of New York or any state court located in New York
County, New York with respect to any claim, dispute or other
disagreement (each, a "Dispute") and each party hereby irrevocably
agrees that all claims in respect of such Dispute or any action, suit
or proceeding related thereto may be heard and determined in such
courts. The parties hereby irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or
hereafter have to the laying of venue of any Dispute brought in such
court or any defense of inconvenient forum for the maintenance of such
Dispute. Each of the parties hereto agrees that an award or judgment in
any such dispute may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(c) Each of the parties hereto hereby consents to process
being served by any party to this Agreement in any suit, action or
proceeding by the delivery or mailing of a copy thereof in accordance
with the provisions of Section 13.
(d) Nothing in this Section 12 shall affect the rights of the
parties to commence any action, suit or proceeding in any other forum
or to serve process in any such action, suit or proceeding in any other
manner permitted by law.
13. Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by
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certified or registered mail, return receipt requested and postage prepaid. Such
notices, demands and other communications shall be sent to the parties at the
respective addressed indicated below:
If to the Underwriters:
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇ L.L.P.
3000 One Shell Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
Cal Dive International, Inc.
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
14. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
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Very truly yours,
CAL DIVE INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇
Chairman and Chief Executive Officer
Accepted as of the date hereof:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
▇▇▇▇▇▇▇ & COMPANY INTERNATIONAL
Acting severally on behalf of themselves and the several Underwriters named in
Schedule I hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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SCHEDULE I
NUMBER OF FIRM
SHARES TO BE
UNDERWRITER PURCHASED
-------------------------------------------------------------- --------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 988,368
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. 988,368
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates Inc. 823,640
▇▇▇▇▇▇▇ & Company International 494,184
Frost Securities, Inc. 50,000
▇▇▇▇, ▇▇▇▇ & Co., Inc. 50,000
UBS Warburg LLC 50,000
---------
Total 3,444,560
=========
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EXHIBIT A
FORM OF LOCK-UP LETTER
May ___, 2002
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
▇▇▇▇▇▇▇ & Company International
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.,
and ▇▇▇▇▇▇▇ & Company International propose to enter into an
Underwriting
Agreement (the "
UNDERWRITING AGREEMENT") with Cal Dive International, Inc., a
Minnesota corporation (the "COMPANY"), providing for the public offering (the
"PUBLIC OFFERING") by the several Underwriters, including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the
"UNDERWRITERS"), of shares (the "SHARES") of the common stock, no par value, of
the Company (the "COMMON STOCK"). It is currently contemplated that the shares
will consist of 4,000,000 shares of Common Stock.
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 90 days after the date of the final prospectus
relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (a) transactions
relating to shares of Common Stock or other securities acquired in open market
transactions after the completion of the Public Offering or (b) transfers of
shares of Common Stock or Common Stock equivalents to a trust or family limited
partnership where the beneficiaries of the trust or the partners of the family
limited partnership are drawn solely from a group consisting of the undersigned
and immediate family members of the undersigned provided that the trust or the
family limited partnership agrees to enter into a lock-up letter substantially
in the form of this letter. Immediate family member of a person means the
spouse, lineal descendants, father, mother, brother, sister, father-in-law,
mother-in-law, brother-in-law and
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sister-in-law of such person. In addition, the undersigned agrees that, without
the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, it
will not, during the period commencing on the date hereof and ending 90 days
after the date of the Prospectus, make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an
Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-------------------------------------
(Name)
-------------------------------------
(Address)
-2-
EXHIBIT B
FORM OF RESERVE LETTER OF ▇▇▇▇▇▇ AND ▇▇▇▇▇, LTD.
[▇▇▇▇▇▇ AND ▇▇▇▇▇ LETTERHEAD]
May ___, 2002
Cal Dive International, Inc.
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
▇▇▇▇▇▇▇ & Company International
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Cal Dive International, Inc.
Public Offering of 3,444,560 Shares of Common Stock
Ladies and Gentlemen:
▇▇▇▇▇▇ and ▇▇▇▇▇, Ltd. was retained by Cal Dive International, Inc.
(the "Company") to review the estimated proved oil and gas reserves as of
December 31 in each of the years 2001, 2000, 1999 and 1998, attributable to the
Energy Resource Technology, Inc. interests in properties located offshore Texas
and offshore Louisiana. The results of our studies are documented in our letter
reports entitled "Energy Resource Technology, Inc., Offshore Gulf of Mexico
Shelf Properties, Proved Reserves as of December 31, 2001" dated January 30,
2002; "Energy Resource Technology, Inc., Proved Reserves as of December 31,
2000" dated February 6, 2001; and reports entitled "Energy Resource Technology,
Inc., Reserves and Future Net Revenue As of December 31, 1999, SEC Price Case"
dated February 23, 2000 and "Energy Resource Technology, Inc., Reserves and
Future Net Revenue As of December 31, 1998, SEC Price Case" dated February 1,
1999. Information regarding the classification and definitions of the reserves
shown is included in the reports.
Since the date of the reports, we have not been provided any additional
information by the Company that would cause the results set forth in the reports
to be misleading as of the effective date of the reserve information therein:
December 31 in each of the years 2001, 2000, 1999 and 1998, respectively. As of
the date hereof, nothing has come to our attention which would cause us to
revise by any material amount any statement made or opinion expressed by us in
the reports with respect to our estimates of the oil and gas reserves and future
net revenues attributable to the interests of the Company in such properties.
-1-
▇▇▇▇▇▇ and ▇▇▇▇▇, Ltd. is not employed on a contingent basis. At the
time of preparation of the reports we did not have, and at the date hereof we do
not have, any financial interest in the Company, nor are we connected with the
Company as a promoter, underwriter, director, officer or employee.
Very truly yours,
▇▇▇▇▇▇ AND ▇▇▇▇▇, LTD.
By
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
-2-