1
EXHIBIT 1.2
================================================================================
OIL STATES INTERNATIONAL, INC.
(a Delaware corporation)
2,920,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: O, 2001
================================================================================
2
TABLE OF CONTENTS
PAGE
----
INTERNATIONAL PURCHASE AGREEMENT..................................................................................1
SECTION 1. Representations and Warranties.........................................................3
(a) Representations and Warranties by the Company..........................................3
(i) Compliance with Registration Requirements.....................................3
(ii) Independent Accountants.......................................................4
(iii) Financial Statements..........................................................4
(iv) No Material Adverse Change in Business........................................5
(v) Good Standing of the Company..................................................5
(vi) Good Standing of Subsidiaries and Combining Companies.........................6
(vii) Capitalization................................................................6
(viii) Authorization of Agreements...................................................6
(ix) Authorization and Description of Securities...................................6
(x) Absence of Defaults and Conflicts.............................................7
(xi) Absence of Labor Dispute......................................................8
(xii) Absence of Proceedings........................................................8
(xiii) Accuracy of Exhibits..........................................................8
(xiv) Possession of Intellectual Property...........................................8
(xv) Absence of Further Requirements...............................................9
(xvi) Possession of Licenses and Permits............................................9
(xvii) Title to Property.............................................................9
(xviii) Compliance with Cuba Act.....................................................10
(xix) Investment Company Act.......................................................10
(xx) Environmental Laws...........................................................10
(xxi) Registration Rights..........................................................11
(xxii) Related Party Transactions...................................................11
(xxiii) Insurance....................................................................11
(xxiv) Tax Returns and Payment of Taxes.............................................11
(xxv) Statistical and Market Data..................................................12
(xxvi) Accounting and Other Controls................................................12
(xxvii) Consummation of Combination..................................................12
(xxviii) Removal of Audit Opinion Qualification and Similar Financial Statement
Footnotes....................................................................13
(xxix) Shares Not Subject to Lock-up Agreements.....................................13
(b) Representations and Warranties by the Selling Stockholders............................13
(i) Accurate Disclosure..........................................................13
(ii) Authorization of Agreements..................................................14
(iii) Good and Marketable Title....................................................14
(iv) Due Execution of Stockholder Agreements......................................14
(v) Absence of Manipulation......................................................15
(vi) Absence of Further Requirements..............................................15
i
3
(vii) Restrictions on Sale of Securities...........................................15
(viii) Certificates Suitable for Transfer...........................................16
(ix) No Association with NASD.....................................................16
(c) Officer's Certificates................................................................16
SECTION 2. Sale and Delivery to International Managers; Closing..................................16
(a) Initial Securities....................................................................16
(b) Option Securities.....................................................................16
(c) Payment 17
(d) Denominations; Registration...........................................................18
SECTION 3. Covenants of the Company..............................................................18
(a) Compliance with Securities Regulations and Commission Requests........................18
(b) Filing of Amendments..................................................................18
(c) Delivery of Registration Statements...................................................18
(d) Delivery of Prospectuses..............................................................19
(e) Continued Compliance with Securities Laws.............................................19
(f) Blue Sky Qualifications...............................................................19
(g) Rule 158 20
(h) Use of Proceeds.......................................................................20
(i) Listing 20
(j) Restriction on Sale of Securities.....................................................20
(k) Reporting Requirements................................................................20
(l) Compliance with Rule 463..............................................................20
(m) Covenants in Combination Transaction Agreements.......................................20
SECTION 4. Payment of Expenses...................................................................20
(a) Expenses 20
(b) Expenses of the Selling Stockholders..................................................21
(c) Termination of Agreement..............................................................21
(d) Allocation of Expenses................................................................21
SECTION 5. Conditions of International Managers' Obligations.....................................21
(a) Effectiveness of Registration Statement...............................................21
(b) Opinion of Counsel for Company........................................................22
(c) Opinion of Counsel for the Selling Stockholders.......................................22
(d) Opinion of Counsel for International Managers.........................................22
(e) Officers' Certificate.................................................................22
(f) Certificate of Selling Stockholders...................................................22
(g) Accountant's Comfort Letter...........................................................23
(h) Bring-down Comfort Letter.............................................................23
(i) Accountant's Tax Letter...............................................................23
(j) Approval of Listing...................................................................23
(k) No Objection..........................................................................23
ii
4
(l) Lock-up Agreements....................................................................23
(m) Consummation of Combination...........................................................23
(n) Purchase of Initial U.S. Securities...................................................23
(o) Conditions to Purchase of International Option Securities.............................23
(i) Officers' Certificate of Company.............................................24
(ii) Opinion of Counsel for Company...............................................24
(iii) Opinion of Counsel for International Managers................................24
(iv) Bring-down Comfort Letters...................................................24
(p) Additional Documents..................................................................24
(q) Termination of Agreement..............................................................24
SECTION 6. Indemnification.......................................................................25
(a) Indemnification of International Managers.............................................25
(b) Indemnification of Company............................................................26
(c) Actions against Parties; Notification.................................................26
(d) Settlement without Consent if Failure to Reimburse....................................27
(e) Other Agreements with Respect to Indemnification......................................27
SECTION 7. Contribution..........................................................................27
SECTION 8. Representations, Warranties and Agreements to Survive Delivery........................29
SECTION 9. Termination of Agreement..............................................................29
(a) Termination; General..................................................................29
(b) Liabilities...........................................................................29
SECTION 10. Default by One or More of the International Managers..................................29
SECTION 11. Default by One or More of the Selling Stockholders or the Company.....................30
SECTION 12. Notices 31
SECTION 13. Parties .............................................................................31
SECTION 14. GOVERNING LAW.........................................................................31
SECTION 15. Appointment of Agent for Service......................................................31
SECTION 16. Consent to Jurisdiction...............................................................32
SECTION 17. Effect of Headings....................................................................32
SCHEDULES
Schedule A List of Selling Stockholders............................................Sch A-1
Schedule B List of Underwriters....................................................Sch B-1
iii
5
Schedule C List of Subsidiaries and Combining Companies............................Sch C-1
Schedule D Pricing Information.....................................................Sch D-1
Schedule E List of Persons subject to Lock-up......................................Sch E-1
EXHIBITS
Exhibit A-1 Form of Opinion of Company's Counsel........................................A-1
Exhibit A-2 Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Casgrain..................................A-2
Exhibit A-3 Form of Opinion of Selling Stockholders' Counsel............................A-3
Exhibit B Form of Lock-up Letter......................................................B-1
iv
6
OIL STATES INTERNATIONAL, INC.
(a Delaware corporation)
2,920,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
O, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
Credit Suisse First Boston (Europe) Limited
▇▇▇▇▇▇▇ & Company International
as Lead Managers of the several International Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
Oil States International, Inc., a Delaware corporation (the "Company"),
and the persons listed in Schedule A hereto as selling stockholders (the
"Selling Stockholders") confirm their agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ International
("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other international underwriters named in
Schedule B hereto (collectively, the "Lead Managers," which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇, Credit Suisse First Boston (Europe) Limited and
▇▇▇▇▇▇▇ & Company International are acting as representatives (in such capacity,
the "Lead Managers"), with respect to the issue and sale by the Company and the
sale by the Selling Stockholders, acting severally and not jointly, and the
purchase by the International Managers, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.01 per share, of the
Company ("Common Stock") set forth in said Schedules A and B hereto, and with
respect to the grant by the Company to the International Managers, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 438,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 2,920,000 shares of Common Stock (the
"Initial International Securities") to be purchased by the International
Managers and
1
7
all or any part of the 438,000 shares of Common Stock subject to the option
described in Section 2(b) hereof (the "International Option Securities") are
hereinafter called, collectively, the "International Securities."
It is understood that the Company and the Selling Stockholders are
concurrently entering into an agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for the offering by the Company and the Selling
Stockholders of an aggregate of 11,680,000 shares of Common Stock (the "Initial
U.S. Securities") through arrangements with certain underwriters in the United
States and Canada (the "U.S. Underwriters") for which ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Credit Suisse First Boston
Corporation and ▇▇▇▇▇▇▇ & Company International are acting as representatives
and the grant by the Company to the U.S. Underwriters, acting severally and not
jointly, of an option to purchase all or any part of the U.S. Underwriters' pro
rata portion of up to 1,752,000 additional shares of Common Stock solely to
cover overallotments, if any (the "U.S. Option Securities" and, together with
the International Option Securities, the "Option Securities"). The Initial U.S.
Securities and the U.S. Option Securities are hereinafter called the "U.S.
Securities." It is understood that the Company and the Selling Stockholders are
not obligated to sell, and the International Managers are not obligated to
purchase, any Initial International Securities unless all of the Initial U.S.
Securities are contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters," the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities," and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated (in such capacity, the "Global Coordinator").
The Company and the Selling Stockholders understand that the
International Managers propose to make a public offering of the International
Securities as soon as the Lead Managers deem advisable after this Agreement has
been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-43400) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the International Securities (the "Form of
International Prospectus") and one relating to the U.S. Securities (the "Form of
U.S. Prospectus"). The Form of U.S. Prospectus is identical to the Form of
International Prospectus,
2
8
except for the front cover and back cover pages and the information under the
caption "Underwriting." The information included in any such prospectus or in
any such Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each Form of
International Prospectus and Form of U.S. Prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto and schedules thereto at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final Form of International Prospectus and the final
Form of U.S. Prospectus in the forms first furnished to the Underwriters for use
in connection with the offering of the Securities are herein called the
"International Prospectus" and the "U.S. Prospectus," respectively, and
collectively, the "Prospectuses." If Rule 434 is relied on, the terms
"International Prospectus" and "U.S. Prospectus" shall refer to the preliminary
International Prospectus dated January 19, 2001 and preliminary U.S. Prospectus
dated January 19, 2001, respectively, each together with the applicable Term
Sheet and all references in this Agreement to the date of such Prospectuses
shall mean the date of the applicable Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the International Prospectus, the U.S. Prospectus or any Term Sheet
or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each International Manager as of the date hereof, as
of the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
International Manager, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any International
Option Securities are purchased, at the Date of
3
9
Delivery), the Registration Statement, the Rule 462(b) Registration
Statement and any amendments and supplements thereto complied and will
comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. Neither of the Prospectuses nor any amendments or
supplements thereto, at the time the Prospectuses or any amendments or
supplements thereto were issued and at the Closing Time (and, if any
International Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If Rule 434 is used, the
Company will comply with the requirements of Rule 434 and the
Prospectuses shall not be "materially different," as such term is used
in Rule 434, from the prospectuses included in the Registration
Statement at the time it became effective. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the International
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any International Manager
through the Lead Managers expressly for use in the Registration
Statement or the International Prospectus.
Each preliminary prospectus and the prospectuses 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 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T.
(ii) Independent Accountants. Each firm of accountants who
certified financial statements and supporting schedules included in the
Registration Statement is an independent public accountant as required
by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements of each
of (1) the Company and its consolidated subsidiaries, (2) PTI Group
Inc. ("PTI") and its consolidated subsidiaries, (3) HWC Energy
Services, Inc. ("HWC") and its consolidated subsidiaries and (4) Sooner
Inc. (and its predecessor Sooner Pipe & Supply Corporation) ("Sooner")
and its consolidated subsidiaries (the Company, PTI, HWC and Sooner are
referred to herein individually as a "Combining Company" and, from and
after consummation of the transactions contemplated by the Combination
Agreement (as defined in paragraph (viii) below), collectively as the
"Combined Company") included in the Registration Statement and the
Prospectuses, together with the related schedules and notes, present
fairly the consolidated financial position of the respective Combining
Company, each at the dates indicated, and the consolidated statements
of operations, stockholders' equity and cash flows of the respective
Combining Company for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis
4
10
throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement present fairly in accordance
with GAAP the information required to be stated therein. The pro forma
combined financial statements and the related notes thereto included in
the Registration Statement and the Prospectuses present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. The
selected historical and pro forma financial information and the summary
pro forma combined financial information included in the Prospectuses
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited and pro forma financial
statements included in the Registration Statement.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Combining Companies and their respective subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by any Combining Company or its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Combining Companies and their
respective subsidiaries considered as one enterprise, and (C) except
for cumulative dividends aggregating $600,000 as of December 31, 2000
on (i) the Series A Convertible Cumulative Preferred Shares of the
Company, (ii) the Series A Cumulative Preferred Shares of CECO
Holdings, Inc., a wholly owned subsidiary of the Company, (iii) the
Series A and Series B Exchangeable Cumulative Preferred Shares of Oil
States Industries, Inc., a wholly owned subsidiary of the Company, and
(iv) the Series A and Series B Cumulative Convertible Preferred Shares
of HWC, there has been no dividend or distribution of any kind
declared, paid or made by any Combining Company on any class of its
capital stock.
(v) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
5
11
(vi) Good Standing of Subsidiaries and Combining Companies.
Each Combining Company (other than the Company) and its and the
Company's respective subsidiaries has been duly organized and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of each Combining Company (other than the
Company) and its and the Company's respective subsidiaries has been
duly authorized and validly issued, is fully paid and non-assessable
and, as of the Closing Time and each Date of Delivery, is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any
Combining Company (other than the Company) and its and the Company's
respective subsidiaries was issued in violation of the preemptive or
similar rights of any securityholder of such Combining Company or
subsidiary. The only subsidiaries of each Combining Company are those
listed on Schedule C hereto.
(vii) Capitalization. As of the Closing Time and each Date of
Delivery, the authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectuses in the column entitled "As
Adjusted" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to employee
benefit plans referred to in the Prospectuses or pursuant to the
exercise of convertible securities or options referred to in the
Prospectuses). The shares of issued and outstanding capital stock of
the Company, including the Securities to be purchased by the
Underwriters from the Selling Stockholders, have been duly authorized
and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company, including the
Securities to be purchased from the Selling Stockholders, was issued in
violation of the preemptive or other similar rights of any
securityholder of the Company that have not been irrevocably waived by
valid, binding and enforceable waivers.
(viii) Authorization of Agreements. This Agreement and the
U.S. Purchase Agreement have been duly authorized, executed and
delivered by the Company and the other Combining Companies. The
Combination Agreement among the Combining Companies and others, dated
as of July 31, 2000 (the "Combination Agreement"), and the other
agreements executed or to be executed by the Combining Companies and
their stockholders in connection with the transactions contemplated by
the Combination Agreement (such agreements, collectively with the
Combination Agreement, are referred to herein as the "Combination
Transaction Agreements") have been duly authorized, executed and
delivered by the parties thereto.
(ix) Authorization and Description of Securities. The
Securities to be purchased by the International Managers and the U.S.
Underwriters from the Company
6
12
have been duly authorized for issuance and sale to the International
Managers pursuant to this Agreement and the U.S. Underwriters pursuant
to the U.S. Purchase Agreement, respectively, and, when issued and
delivered by the Company pursuant to this Agreement and the U.S.
Purchase Agreement, respectively, against payment of the consideration
set forth herein and the U.S. Purchase Agreement, respectively, will be
validly issued, fully paid and non-assessable; the Common Stock
conforms to all statements relating thereto contained in the
Prospectuses and such description conforms to the rights set forth in
the instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(x) Absence of Defaults and Conflicts. None of the Combining
Companies nor any of their respective subsidiaries is (1) in violation
of its charter, by-laws or other organizational instrument or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which any Combining Company or any of its subsidiaries
is a party or by which any of them may be bound, or to which any of the
property or assets of any Combining Company or any of its subsidiaries
is subject (collectively, "Agreements and Instruments") except for such
defaults that, individually or in the aggregate, would not result in a
Material Adverse Effect or (2) in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or
assets or to the conduct of its business, except for such violations or
failures that, individually or in the aggregate, would not result in a
Material Adverse Effect; and the execution, delivery and performance of
this Agreement, the U.S. Purchase Agreement and the Combination
Transaction Agreements and the consummation of the transactions
contemplated in this Agreement, the U.S. Purchase Agreement and the
Combination Transaction Agreements and in the Registration Statement
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the
Prospectuses under the caption "Use of Proceeds") and compliance by
each Combining Company with its obligations under this Agreement, the
U.S. Purchase Agreement and the Combination Transaction Agreements have
been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of any Combining Company or any of its subsidiaries pursuant to
the Agreements and Instruments (except for such conflicts, breaches,
defaults, Repayment Events or liens, charges or encumbrances that would
not result in a Material Adverse Effect), nor will such action result
in any violation of (A) the provisions of the charter, by-laws or other
organizational instrument of any Combining Company or any of its
subsidiaries or (B) any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
any Combining Company or any of its subsidiaries or any of their
assets, properties or operations, except, in the case of clause (B),
for violations that, individually or in the aggregate, would not
7
13
result in a Material Adverse Effect. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by any Combining
Company or any of its subsidiaries, except for such indebtedness that
will be repaid with the proceeds from the issuance of the Securities as
set forth in the Prospectuses.
(xi) Absence of Labor Dispute. No labor dispute with the
employees of any Combining Company or any of its subsidiaries exists
or, to the knowledge of the Company, is imminent, and the Company is
not aware of any existing or imminent labor disturbance by the
employees of the principal suppliers, manufacturers, customers or
contractors of any Combining Company or any of its subsidiaries, which,
in either case, may reasonably be expected to result in a Material
Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body now pending or, to the knowledge of the
Company, threatened, against or affecting any Combining Company or any
of its subsidiaries, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement, the U.S. Purchase
Agreement or the Combination Transaction Agreements or the performance
by any Combining Company of its obligations hereunder or thereunder;
the aggregate of all pending legal or governmental proceedings to which
any Combining Company or its subsidiaries is a party or of which
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectuses or to be filed as exhibits thereto which
have not been so described and filed as required.
(xiv) Possession of Intellectual Property. Each Combining
Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, trademark registrations, service
marks, service ▇▇▇▇ registrations, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on
the business now operated by it, and none of the Combining Companies
nor any of their respective subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of any Combining Company and its
subsidiaries therein, and which infringement or conflict (if the
subject
8
14
of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority, agency
or body is necessary or required for the performance by any Combining
Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities under this Agreement and the U.S.
Purchase Agreement or the consummation of the transactions contemplated
by this Agreement, the U.S. Purchase Agreement and the Combination
Transaction Agreements, except (i) such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations
and foreign or state securities or blue sky laws, (ii) the filing of
the Certificate of Merger merging Merger Sub-Sooner, Inc. with and into
Sooner, as contemplated by the Combination Agreement, (iii) the filing
of the Articles of Merger merging Merger Sub-HWC, Inc. with and into
HWC, as contemplated by the Combination Agreement, (iv) the filing of
the PTI Articles of Arrangement (as defined in the Combination
Agreement) with the Registrar under the Business Corporations Act
(Alberta) and (v) the post-merger notice filing required under the
Investment Canada Act.
(xvi) Possession of Licenses and Permits. Each Combining
Company and its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them, and each Combining Company and its subsidiaries are
in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to possess or to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of
the Governmental Licenses held by any Combining Company or any
subsidiary of any Combining Company are valid and in full force and
effect, except where the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and none of the
Combining Companies nor their respective subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
(xvii) Title to Property. Each Combining Company and its
subsidiaries have good and marketable title to all material real
property owned by them and good title to all other material properties
owned by them, in each case free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectuses or (b) do
not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by such Combining Company and its subsidiaries; and
all of the leases and subleases material to the business of the
Combining Companies and their subsidiaries, considered as one
enterprise, and under which the Combining Companies and their
respective subsidiaries hold properties described in the Prospectuses,
are in full force and effect, and none of the Combining Companies nor
their respective subsidiaries has received any notice of any material
claim of any sort that has
9
15
been asserted by anyone adverse to the rights of any Combining Company
or its subsidiaries under any of the leases or subleases mentioned
above, or affecting or questioning the rights of any such Combining
Company or respective subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xviii) Compliance with Cuba Act. Each Combining Company and
its subsidiaries has complied with, and is and will be in compliance
with, the provisions of that certain Florida act relating to disclosure
of doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder (collectively, the
"Cuba Act") or is exempt therefrom.
(xix) Investment Company Act. None of the Combining Companies
nor any of their respective subsidiaries is, and upon the issuance and
sale of the Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectuses, none of
them will be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) none of the
Combining Companies nor any of their respective subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating
to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) each Combining Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the knowledge of any Combining Company,
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against such Combining Company or its subsidiaries, and (D) there
are no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an action,
suit or proceeding by any private party or governmental body or agency,
against or affecting any Combining Company or its subsidiaries relating
to Hazardous Materials or any Environmental Laws.
10
16
(xxi) Registration Rights. Except as disclosed in the
Registration Statement and the Prospectuses, there are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act. With respect to the
Registration Statement and offering of Securities contemplated thereby,
all such registration and similar rights have been irrevocably waived
by the holders thereof and any such waivers are valid, binding and
enforceable against such holders.
(xxii) Related Party Transactions. No relationship, direct or
indirect, exists between or among any Combining Company or any of its
subsidiaries, on the one hand, and the directors, officers,
shareholders, customers or suppliers of any Combining Company or any of
its subsidiaries on the other hand, which is required to be described
in the Prospectuses which is not so described.
(xxiii) Insurance. Each Combining Company and 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 industries in which such Combining Company and its subsidiaries
operate; the Company has no reason to believe that any Combining
Company or any of its subsidiaries 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 operations, except where the failure to renew or maintain
such coverage could not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect. The officers and
directors of the Combined Company are insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as the Company believes are prudent and customary for officers'
and directors' liability insurance of a public company and as the
Company believes could cover any claims which could reasonably be
expected to be made in connection with the issuance of the Securities;
and the Company has no reason to believe that it will not be able to
renew its existing directors' and officers' liability insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to cover its
officers and directors.
(xxiv) Tax Returns and Payment of Taxes. Each Combining
Company and each of its subsidiaries has timely filed all federal,
state, local and foreign tax returns that are required to be filed or
has duly requested extensions thereof and all such tax returns are
true, correct and complete, except to the extent that any failure to
file or request an extension or any failure to be correct and complete
could not reasonably be expected to result in a Material Adverse
Effect. Each Combining Company and each of its subsidiaries has timely
paid all taxes shown as due on such filed tax returns (including any
related assessments, fines or penalties), except to the extent that any
such taxes are being contested in good faith and by appropriate
proceedings, or to the extent that any failure to pay could not
reasonably be expected to result in a Material Adverse Effect; and
adequate charges, accruals and reserves have been provided for in the
financial statements referred to in Section 1(a)(iii) above in
accordance with GAAP in respect of all federal, state, local and
foreign taxes for all periods as to which the tax liability of such
Combining Company or any such subsidiary has not been finally
determined or remains open to examination by applicable taxing
authorities.
11
17
(xxv) Statistical and Market Data. The statistical and
market-related data included in the Prospectuses are derived from
sources which the Company reasonably and in good faith believes to be
accurate, reasonable and reliable, and the Company agrees, or has no
reason to disagree, with the sources from which such data were derived.
(xxvi) Accounting and Other Controls. Each Combining Company
and each of its subsidiaries has established a system of internal
accounting controls sufficient to provide reasonable assurances that
(i) transactions were, are and will be executed in accordance with
management's general or specific authorization; (ii) transactions were,
are and will be recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain
accountability for assets; (iii) access to assets was, is and will be
permitted only in accordance with management's general or specific
authorizations; and (iv) the recorded accountability for assets was, is
and will be compared with existing assets at reasonable intervals and
appropriate action was, is and will be taken with respect to any
differences.
(xxvii) Consummation of Combination. All conditions to
consummation of the transactions set forth in the Combination Agreement
have been satisfied, other than those conditions that by their terms
are to be satisfied after the date hereof and at or prior to the
Closing Time, and the Company has no reason to believe that any of the
conditions that by their terms are to be satisfied after the date
hereof and at or prior to the Closing Time will not be satisfied or,
with respect to the conditions set forth in Section 12.1(f) and (h) of
the Combination Agreement, waived, at or prior to the Closing Time. The
Company has no reason to believe that the transactions set forth in the
Combination Agreement will not be consummated in accordance with the
Combination Agreement at or prior to the Closing Time. There have been
no amendments or supplements to the Combination Agreement since the
original execution thereof on July 31, 2000. At or prior to the Closing
Time, the transactions contemplated by the Combination Agreement will
be consummated, with the result that each Combining Company (other than
the Company) will become a wholly-owned direct or indirect subsidiary
of the Company and, except as set forth in the Registration Statement,
all shares of capital stock of each Combining Company (other than the
Company) and all rights to acquire such shares shall be converted,
pursuant to the Combination Transaction Agreements, into (a) shares of
Common Stock or PTI Exchangeable Shares (as defined in the Combination
Agreement) or the right to receive shares of Common Stock or PTI
Exchangeable Shares, (b) an amount of cash not exceeding $[2.5] million
in the aggregate or (c) the right to seek payment for appraisal or
dissenters' rights or similar rights under applicable law for an amount
that, in the reasonable judgment of the Company, does not exceed
$[700,000] in the aggregate. None of the Combining Companies or any of
their respective subsidiaries nor any of their respective "affiliates"
(as defined in Rule 501(b) of Regulation D under the ▇▇▇▇ ▇▇▇) has
directly, or through any agent, (a) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of any "security" (as
defined in the 1933 Act), including any shares of capital sock of the
Company and its wholly owned Canadian subsidiary issued to the
stockholders of the Combining Companies as contemplated by the
Combination Transaction Agreements, in a manner that would require the
registration under the 1933 Act of any such security, or (b) engaged in
any form of general solicitation or general advertising (as those terms
are used in Regulation D under the
12
18
1933 Act) in connection with the offering of any such security or in
any manner involving a public offering within the meaning of Section
4(2) of the 1933 Act. It is not necessary in connection with the offer,
sale and delivery of the shares of capital sock of the Company and its
wholly owned Canadian subsidiary issued to the stockholders of the
Combining Companies as contemplated by the Combination Transaction
Agreements to register such offer or sale under the 1933 Act, any state
law or any law of any province of Canada.
(xxviii) Removal of Audit Opinion Qualification and Similar
Financial Statement Footnotes. After giving effect to the use of
proceeds received by the Company in the manner specified in the
Prospectuses under "Use of Proceeds," each of the items referred to (a)
in the third paragraph of Note 3 and in Note 4 of the unaudited
financial statements of the Company as of and for the nine months ended
September 30, 2000 and included in the Prospectuses, (b) the third
paragraph of the report dated July 31, 2000 of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
relating to the audited financial statements of the Company and
included in the Prospectuses and (c) in the first two paragraphs of
Note 20 of the audited financial statements of the Company and included
in the Prospectuses will have been repaid, retired or redeemed so that
no obligations or other amounts disclosed in such notes and such report
remain payable or outstanding or represent a claim on the assets of any
Combining Company or any subsidiary of any Combining Company in respect
of any of such items. Based on discussions between the Company and its
independent accountants who will be involved in the audit of the
Company's consolidated financial statements for periods after the
Closing Time, the Company understands that, if such accountants were to
render an audit report on the consolidated financial statements of the
Combined Company and its subsidiaries immediately following the Closing
Time, no qualification or disclosure of the type referred to in clauses
(a) and (b) of the first sentence of this paragraph (xxviii) would be
required.
(xxix) Shares Not Subject to Lock-up Agreements. The aggregate
number of shares of Common Stock that will be (a) outstanding
immediately following the Closing Time or issuable within 180 days from
the date of the Prospectuses under arrangements existing at the Closing
Time and (b) not subject to the lock-up agreements described in Section
1(b)(vii) or Section 5(l) does not exceed 140,000 shares.
(b) Representations and Warranties by the Selling Stockholders. Each
Selling Stockholder represents and warrants, severally and not jointly, to each
International Manager as of the date hereof and as of the Closing Time, and
agrees with each International Manager, as follows:
(i) Accurate Disclosure. Such Selling Stockholder has reviewed and is
familiar with the Registration Statement and the Prospectuses and, with
respect to information furnished by such Selling Stockholder for use
therein, neither the Registration Statement nor the Prospectuses
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein not
misleading.
13
19
(ii) Authorization of Agreements. Such Selling Stockholder has
the full legal right, power and authority to enter into this Agreement,
a Remaining Stockholder Election Agreement and a Selling Stockholder
Agreement, which includes a power of attorney and custody agreement
(the "Selling Stockholder Agreement" and, together with the Remaining
Stockholder Election Agreement, the "Stockholder Agreements") and to
sell, transfer and deliver the Securities to be sold by such Selling
Stockholder hereunder. The execution and delivery of this Agreement and
the Stockholder Agreements, the sale and delivery of the Securities to
be sold by such Selling Stockholder and the consummation of the
transactions contemplated herein and therein and compliance by such
Selling Stockholder with its obligations hereunder and thereunder have
been duly authorized by such Selling Stockholder and do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Securities to be sold by such Selling Stockholder
or any property or assets of such Selling Stockholder pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder may
be bound, or to which any of the property or assets of such Selling
Stockholder is subject (but only to the extent that any such conflict,
breach, default, tax, lien, charge or encumbrance adversely affects the
ability of such Selling Stockholder to deliver good and marketable
title to the Securities to be sold by the Selling Stockholder
hereunder), nor will such action result in any violation of the
provisions of the charter or by-laws or other organizational instrument
of such Selling Stockholder, if applicable, or any applicable treaty,
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court having jurisdiction
over such Selling Stockholder or any of its properties.
(iii) Good and Marketable Title. Such Selling Stockholder
(together with such Selling Stockholder's spouse, if applicable) will
at the Closing Time have good and marketable title to the Securities to
be sold by such Selling Stockholder hereunder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind, other than pursuant to this Agreement; and
upon delivery of such Securities and payment of the purchase price
therefor as herein contemplated, assuming each such International
Manager has no notice of any adverse claim, each of the International
Managers will receive good and marketable title to the Securities
purchased by it from such Selling Stockholder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
(iv) Due Execution of Stockholder Agreements. Such Selling
Stockholder has duly executed and delivered, in the form heretofore
furnished to the Lead Managers, the Selling Stockholder Agreement
appointing ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, or any of them, as
attorneys-in-fact (the "Attorneys-in-Fact"), and Mellon Investor
Services LLC, as custodian (the "Custodian"); the Custodian is
authorized to deliver the Securities to be sold by such Selling
Stockholder hereunder and to accept payment therefor; and each
Attorney-in-Fact is authorized to execute and deliver this Agreement
and the certificate referred to in Section 5(f), to sell, assign and
transfer to the Underwriters the Securities to be sold by such Selling
Stockholder hereunder, to determine the purchase
14
20
price to be paid by the Underwriters to such Selling Stockholder, as
provided in Section 2(a) hereof, to authorize the delivery of the
Securities to be sold by such Selling Stockholder hereunder, to accept
payment therefor, and otherwise to act on behalf of such Selling
Stockholder in connection with this Agreement.
(v) Absence of Manipulation. Such Selling Stockholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(vi) Absence of Further Requirements. No filing with, or
consent, approval, authorization, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the
performance by such Selling Stockholder of its obligations hereunder or
in the Stockholder Agreements, or in connection with the offer, sale
and delivery of the Securities by such Selling Stockholder hereunder or
the consummation by such Selling Stockholder of the transactions
contemplated by this Agreement, except such as may have previously been
made or obtained or as may be required under the 1933 Act or the 1933
Act Regulations or state securities laws.
(vii) Restrictions on Sale of Securities. During a period of
180 days from the date of the Prospectuses, such Selling Stockholder
will not, without the prior written consent of the Global Coordinator,
(i) directly or indirectly 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 or otherwise
transfer or dispose of, any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with
respect to which the undersigned has or hereafter acquires the power of
disposition, or file, or request or demand that the Company file, any
registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequences of ownership of the Common Stock,
whether any such swap or 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; provided, however, that, without
obtaining the prior written consent of the Global Coordinator, such
Selling Stockholder will be permitted to transfer shares of Common
Stock otherwise subject to this Section 1(b)(vii) to any immediate
family member of such Selling Stockholder, any trust established for
the benefit of any such immediate family member or any corporation
wholly owned by such Selling Stockholder or any combination of such
Selling Stockholder and any of the foregoing, provided that, prior to
such transfer and as a condition thereof, the transferee shall deliver
to the Global Coordinator a written agreement to be bound by the
restrictions set forth herein until the expiration of the
aforementioned 180-day period. The foregoing sentence shall not apply
to the Securities to be sold hereunder or under the U.S. Purchase
Agreement.
15
21
(viii) Certificates Suitable for Transfer. Such Selling
Stockholder has irrevocably placed in custody with the Custodian
certificates, in suitable form for transfer by delivery or accompanied
by duly executed instruments of transfer or assignment in blank with
signatures guaranteed, for all of the Securities to be sold by such
Selling Stockholder pursuant to this Agreement or, pursuant to the
Selling Stockholder Agreement, has irrevocably committed to do so prior
to the Closing Time, in each case with irrevocable conditional
instructions to deliver such Securities to the International Managers
pursuant to this Agreement.
(ix) No Association with NASD. Except as set forth in an annex
to the Selling Stockholder Agreement, neither such Selling Stockholder
nor any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, or has any other association with (within the meaning of
Article I, Section (ee) of the By-laws of the National Association of
Securities Dealers, Inc. (the "NASD")), any member firm of the NASD.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company delivered to the Global Coordinator, the Lead Managers or to counsel
for the International Managers shall be deemed a representation and warranty by
the Company to each International Manager as to the matters covered thereby; and
any certificate signed by or on behalf of any Selling Stockholder as such and
delivered to the Global Coordinator, the Lead Managers or to counsel for the
International Managers shall be deemed a representation and warranty by such
Selling Stockholder to each International Manager as to the matters covered
thereby.
SECTION 2. Sale and Delivery to International Managers; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and each Selling Stockholder agrees to sell to each
International Manager, severally and not jointly, and each International
Manager, severally and not jointly, agrees to purchase from the Company and each
Selling Stockholder, at the price per share set forth in Schedule D, that
proportion of the number of Initial Securities set forth in Schedule A opposite
the name of the Company or such Selling Stockholder, as the case may be, which
the number of Initial Securities set forth in Schedule B opposite the name of
such International Manager, plus any additional number of Initial Securities
which such International Manager may become obligated to purchase pursuant to
the provisions of Section 10 hereof, bears to the total number of Initial
Securities, subject, in each case, to such adjustments among the International
Managers as the Lead Managers in their sole discretion shall make to eliminate
any sales or purchases of fractional securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the International Managers,
severally and not jointly, to purchase up to an additional 1,752,000 shares of
Common Stock at the price per share set forth in Schedule D, less an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Initial International Securities but not payable on the
International Option Securities. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments
16
22
which may be made in connection with the offering and distribution of the
Initial International Securities upon notice by the Global Coordinator to the
Company setting forth the number of International Option Securities as to which
the several International Managers are then exercising the option and the time
and date of payment and delivery for such International Option Securities. Any
such time and date of delivery for the International Option Securities (a "Date
of Delivery") shall be determined by the Global Coordinator, but shall not be
later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the International Option Securities, each
of the International Managers, acting severally and not jointly, will purchase
that proportion of the total number of International Option Securities then
being purchased which the number of Initial International Securities set forth
in Schedule B opposite the name of such International Manager bears to the total
number of Initial International Securities, subject in each case to such
adjustments as the Global Coordinator in its discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of ▇▇▇▇▇
▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at such other place as
shall be agreed upon by the Global Coordinator, the Company and the Selling
Stockholders, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business day after the
date hereof (unless postponed in accordance with the provisions of Section 10),
or such other time not later than ten business days after such date as shall be
agreed upon by the Global Coordinator, the Company and the Selling Stockholders
(such time and date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
Payment shall be made to the Company and the Selling Stockholders by
wire transfer of immediately available funds to a bank account designated by the
Company and the Custodian, on behalf of the Selling Stockholders, against
delivery to the Lead Managers for the respective accounts of the International
Managers of certificates for the International Securities to be purchased by
them. It is understood that each International Manager has authorized the Lead
Managers, for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Initial International Securities and the
International Option Securities, if any, which it has agreed to purchase.
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the International
Managers, may (but shall not be obligated to) make payment of the purchase price
for the Initial International Securities or the International Option Securities,
if any, to be purchased by any International Manager whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such International Manager from its
obligations hereunder.
17
23
(d) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the Lead Managers may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
International Securities and the International Option Securities, if any, will
be made available for examination and packaging by the Lead Managers in The City
of New York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Global Coordinator immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectuses,
will furnish the Global Coordinator with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Global Coordinator
or counsel for the International Managers shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Lead Managers and counsel for the International Managers,
without charge, signed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith) and signed
copies of all consents, and will also deliver to the Lead Managers, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the International
Managers. The copies of the Registration Statement and each amendment thereto
furnished to the International
18
24
Managers will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each International Manager, without charge,
during the period when the International Prospectus is required to be delivered
under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such
number of copies of the International Prospectus (as amended or supplemented) as
such International Manager may reasonably request. The International Prospectus
and any amendments or supplements thereto furnished to the International
Managers will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the rules
and regulations promulgated thereunder (the "1934 Act Regulations") so as to
permit the completion of the distribution of the Securities as contemplated in
this Agreement and the U.S. Purchase Agreement and in the Prospectuses. If at
any time when a prospectus is required by the 1933 Act or the 1934 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the International Managers or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order that the
Prospectuses will not include any untrue statements of a material fact or omit
to state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement any Prospectus in order to comply with the requirements of the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulation, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectuses comply
with such requirements, and the Company will furnish to the International
Managers such number of copies of such amendment or supplement as the
International Managers may reasonably request.
(f) Blue Sky Qualifications. The Company will use its reasonable best
efforts, in cooperation with the International Managers, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Global Coordinator
may designate and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; provided, however, that
the Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in
19
25
effect for a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectuses
under "Use of Proceeds".
(i) Listing. The Company will use its reasonable best efforts to effect
the listing of the Common Stock (including the Securities) on the New York Stock
Exchange.
(j) Restriction on Sale of Securities. During a period of 180 days from
the date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, (i) directly or indirectly 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 or
otherwise transfer or dispose of, any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or 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 Securities to be sold hereunder or under the U.S. Purchase Agreement,
(B) any shares of Common Stock issued or options to purchase Common Stock or
other Common Stock-based awards granted pursuant to the 2001 Equity
Participation Plan referred to in the Prospectuses or (C) any shares of Common
Stock or securities convertible into or exchangeable for shares of Common Stock
that are issued pursuant to the transactions contemplated by the Combination
Agreement.
(k) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(l) Compliance with Rule 463. The Company will file with the Commission
such reports on Form SR as may be required pursuant to Rule 463 of the 1933 Act
Regulations.
(m) Covenants in Combination Transaction Agreements. Each Combining
Company will use its best efforts to comply with and perform each of its
covenants and agreements contained in the Combination Transaction Agreements.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of
20
26
each amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters and the
transfer of the Securities between the International Managers and the U.S.
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectuses and any amendments or supplements thereto, (vii)
the preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any supplement thereto, (viii) the fees and expenses of any
transfer agent or registrar for the Securities, (ix) the fees and expenses
incurred in connection with the listing of the Securities on the New York Stock
Exchange, and (x) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with the review by
the NASD of the terms of the sale of the Securities.
(b) Expenses of the Selling Stockholders. Each Selling Stockholder will
pay all expenses incident to the performance of its obligations under this
Agreement, including (i) any stock or other transfer taxes and any stamp or
other duties payable upon the sale of the Securities sold by such Selling
Stockholder to the Underwriters, and their transfer between the International
Managers and the U.S. Underwriters, and (ii) the fees and disbursements of its
counsel and advisors, if any.
(c) Termination of Agreement. If this Agreement is terminated by the
Lead Managers in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the International Managers for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the International Managers.
(d) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Stockholders may make for
the sharing of costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Stockholders contained in Section 1 hereof or in certificates of any officer of
the Company or on behalf of any Selling Stockholder delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request
on
21
27
the part of the Commission for additional information shall have been complied
with to the reasonable satisfaction of counsel to the International Managers. A
prospectus containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A) or, if the Company has elected to
rely upon Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At the Closing Time, the Lead
Managers shall have received the favorable opinion, dated as of the Closing
Time, of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and
substance satisfactory to counsel for the International Managers, together with
signed or reproduced copies of such letter for each of the other International
Managers to the effect set forth in Exhibit A-1 hereto and to such further
effect as counsel to the International Managers may reasonably request and (ii)
Fraser ▇▇▇▇▇▇ Casgrain, counsel for PTI, in form and substance satisfactory to
counsel for the International Managers, together with signed or reproduced
copies of such letter for each of the other International Managers to the effect
set forth in Exhibit A-2 hereto, and to such further effect as counsel to the
International Managers may reasonably request.
(c) Opinion of Counsel for the Selling Stockholders. At the Closing
Time, the Lead Managers shall have received the favorable opinion, dated as of
the Closing Time, of counsel for each Selling Stockholder, in form and substance
satisfactory to counsel for the International Managers, together with signed or
reproduced copies of such letter for each of the other International Managers to
the effect set forth in Exhibit A-3 hereto, and to such further effect as
counsel to the International Managers may reasonably request.
(d) Opinion of Counsel for International Managers. At the Closing Time,
the Lead Managers shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the International Managers, together
with signed or reproduced copies of such letter for each of the other
International Managers, in form and substance reasonably satisfactory to the
International Managers.
(e) Officers' Certificate. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any Material Adverse Effect, and the
Lead Managers shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of the Closing Time, to the effect that (i) there has
been no such Material Adverse Effect, (ii) the representations and warranties of
the Company in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Time, (iii) the Company
and each other Combining Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission.
(f) Certificate of Selling Stockholders. At the Closing Time, the Lead
Managers shall have received a certificate of an Attorney-in-Fact on behalf of
each Selling Stockholder, dated as
22
28
of the Closing Time, to the effect that (i) the representations and warranties
of each Selling Stockholder contained in Section 1(b) hereof are true and
correct in all material respects with the same force and effect as though
expressly made at and as of the Closing Time and (ii) each Selling Stockholder
has complied with all agreements and all conditions on its part to be performed
under this Agreement at or prior to the Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Lead Managers shall have received from each of Ernst & Young LLP,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and PricewaterhouseCoopers LLP a letter dated such date, in
form and substance satisfactory to the Lead Managers, together with signed or
reproduced copies of such letter for each of the other International Managers
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 Prospectuses.
(h) Bring-down Comfort Letter. At the Closing Time, the Lead Managers
shall have received from each of Ernst & Young LLP, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and
PricewaterhouseCoopers LLP a letter, dated as of the Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (g) of this Section, except that the specified date referred to shall
be a date not more than three business days prior to the Closing Time.
(i) Accountant's Tax Letter. At the Closing Time, the Lead Managers
shall have received from Ernst & Young LLP a letter dated as of the Closing
Time, to the effect that the International Managers may rely on the opinion of
such firm delivered to the Company pursuant to Section 12.1(i) of the
Combination Agreement.
(j) Approval of Listing. At the Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(k) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(l) Lock-up Agreements. At the date of this Agreement, the Lead
Managers shall have received an agreement substantially in the form of Exhibit B
hereto signed by the persons listed on Schedule E hereto.
(m) Consummation of Combination. At the Closing Time, the transactions
contemplated by the Combination Agreement and as described in the Registration
Statement and the Prospectuses shall have been consummated without waiver or
modification, except such as have been approved by the Global Coordinator.
(n) Purchase of Initial U.S. Securities. Contemporaneously with the
purchase by the International Managers of the Initial International Securities
under this Agreement, the U.S. Underwriters shall have purchased the Initial
U.S. Securities under the U.S. Purchase Agreement.
(o) Conditions to Purchase of International Option Securities. In the
event that the International Managers exercise their option provided in Section
2(b) hereof to purchase all or any portion of the International Option
Securities, the representations and warranties of the
23
29
Company contained herein and the statements in any certificates furnished by the
Company hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the Lead Managers shall have received:
(i) Officers' Certificate of Company. A certificate, dated
such Date of Delivery, of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the
Company confirming that the certificate delivered at the Closing Time
pursuant to Section 5(e) hereof remains true and correct as of such
Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion (i)
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and
substance satisfactory to counsel for the International Managers, dated
such Date of Delivery, relating to the International Option Securities
to be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(b)(i) hereof and (ii) of
Fraser ▇▇▇▇▇▇ Casgrain, counsel for PTI, in form and substance
satisfactory to counsel for the International Managers, dated such Date
of Delivery, relating to the International Option Securities to be
purchased on such date of delivery and otherwise to the same effect as
the opinion required by Section 5(b)(ii) hereof.
(iii) Opinion of Counsel for International Managers. The
favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the International
Managers, dated such Date of Delivery, relating to the International
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(d)
hereof.
(iv) Bring-down Comfort Letters. A letter from each accounting
firm that delivers a comfort letter pursuant to Section 5(g) in form
and substance satisfactory to the Lead Managers and dated such Date of
Delivery, substantially in the same form and substance as the letter
provided by such firm and furnished to the Lead Managers pursuant to
Section 5(g) hereof, except that the "specified date" in each letter
furnished pursuant to this paragraph shall be a date not more than five
days prior to such Date of Delivery.
(p) Additional Documents. At the Closing Time and at each Date of
Delivery, counsel for the International Managers shall have been furnished with
such documents, certificates and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company and the Selling
Stockholders in connection with the issuance and sale of the Securities as
herein contemplated shall be reasonably satisfactory in form and substance to
the Lead Managers and counsel for the International Managers.
(q) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of International
Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several International Managers to purchase the relevant
24
30
Option Securities, may be terminated by the Lead Managers by notice to the
Company at any time at or prior to Closing Time or such Date of Delivery, as the
case may be, and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of International Managers. Each Combining Company,
jointly and severally, and the Selling Stockholders severally agree to indemnify
and hold harmless each International Manager and each person, if any, who
controls any International Manager within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectuses (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that (x) this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any International Manager through the Lead Managers expressly for use
in the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto); (y) the Company shall not
25
31
be liable to any International Manager with respect to any preliminary
prospectus to the extent that any such loss, liability, claim, damage or expense
would not have been incurred, but for the fact that such International Manager,
in contravention of a requirement of applicable law, sold International
Securities to a person to whom such International Manager failed to send or
give, at or prior to the written confirmation of the sale of such International
Securities (the "Confirmation"), a copy of the International Prospectus, as then
amended or supplemented if the Company has previously furnished copies thereof
(sufficiently in advance of the Confirmation and in sufficient quantity to allow
for distribution by the Confirmation) and the loss, liability, claim, damage or
expense of such International Manager resulted from an untrue statement or
omission of a material fact contained in or omitted from the preliminary
prospectus that was corrected in the International Prospectus as, if applicable,
amended or supplemented prior to the Confirmation and it is judicially
determined that such International Prospectus was required by law to be
delivered at or prior to the Confirmation and (z) with respect to each Selling
Stockholder, the indemnity provisions of Section 6(a) shall be only with respect
to information furnished in writing by or on behalf of such Selling Stockholder
expressly for use in the Registration Statement (or any amendment thereto),
including Rule 430A Information and Rule 434 Information, if applicable, or any
preliminary prospectus or the International Prospectus (or any amendment or
supplement thereto); and provided, further, that each Selling Stockholder's
aggregate liability under this Section 6 shall be limited to an amount equal to
the net proceeds (after deducting the underwriting discount, but before
deducting expenses) received by each Selling Stockholder from the sale of
Securities pursuant to this Agreement.
(b) Indemnification of Company, Directors and Officers and Selling
Stockholders. Each International Manager severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each
Selling Stockholder and each person, if any, who controls such Selling
Stockholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the International
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
International Manager through the Lead Managers expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the International Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An
26
32
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding 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, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent the indemnifying
party considers such request to be reasonable and (ii) provides written notice
to the indemnified party substantiating the unpaid balance as unreasonable, in
each case prior to the date of such settlement.
(e) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement among the Company and the Selling
Stockholders with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the International Managers on the other
hand from the offering of the Securities pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i)
27
33
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and of the International Managers on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company and the Selling
Stockholders on the one hand and the International Managers on the other hand in
connection with the offering of the International Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the International Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the Selling
Stockholders and the total underwriting discount received by the International
Managers, in each case as set forth on the cover of the International
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the International
Securities as set forth on such cover.
The relative fault of the Company and the Selling Stockholders on the
one hand and the International Managers on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Stockholders
or by the International Managers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Selling Stockholders and the International Managers
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the International
Managers were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (i) no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Manager has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission and (ii) no Selling Stockholder shall be required to contribute any
amount in excess of the amount by which the total proceeds to such Selling
Stockholder from the sale of the Securities owned by such Selling Stockholder
exceeds the amount of any damages which such Selling Stockholder has otherwise
been required to pay by reason of any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
28
34
For purposes of this Section 7, each person, if any, who controls a
International Manager or a Selling Stockholder within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such International Manager or such Selling Stockholder, as the
case may be, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
International Managers' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule B hereto and
not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Stockholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or the Selling
Stockholders submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
International Manager or controlling person, or by or on behalf of the Company
or the Selling Stockholders, and shall survive delivery of the Securities to the
International Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Lead Managers may terminate this
Agreement, by notice to the Company and the Selling Stockholders, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the International Prospectus, any Material Adverse Effect, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Lead Managers, impracticable to market the Securities or
to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the New
York Stock Exchange has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the International Managers. If
one or more of the International Managers shall fail at Closing Time or a Date
of Delivery to purchase the
29
35
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Lead Managers shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
International Managers, or any other underwriters, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Lead Managers shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of International Securities to be purchased on such date,
each of the non-defaulting International Managers shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of International Securities to be purchased on such date, this
Agreement or, with respect to any Date of Delivery which occurs after
the Closing Time, the obligation of the International Managers to
purchase and of the Company to sell the Option Securities to be
purchased and sold on such Date of Delivery, shall terminate without
liability on the part of any non-defaulting International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either (i) the Lead
Managers or (ii) the Company and any Selling Stockholder shall have the right to
postpone Closing Time or the relevant Date of Delivery, as the case may be, for
a period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "International Manager" includes any person substituted
for a International Manager under this Section 10.
SECTION 11. Default by One or More of the Selling Stockholders or the
Company.
(a) If a Selling Stockholder shall fail at the Closing Time to sell and
deliver the number of Securities which such Selling Stockholder is obligated to
sell hereunder, and the Company shall not exercise the right hereby granted to
increase the number of Securities to be issued by it hereunder by the total
number that would have been sold by such defaulting Selling Stockholder, then
the International Managers may, at the option of the Lead Managers, by notice
from the Lead Managers to the Company and the non-defaulting Selling
Stockholders, either (1) terminate this Agreement without any liability on the
fault of any non-defaulting party except that the provisions of Sections 1, 4,
6, 7 and 8 shall remain in full force and effect or (2) elect to purchase the
Securities which the non-defaulting Selling Stockholders and the Company have
agreed to sell hereunder. No action taken pursuant to this Section 11 shall
relieve any Selling Stockholder so defaulting from liability, if any, in respect
of such default.
30
36
In the event of a default by any Selling Stockholder as referred to in
this Section 11, each of the Lead Managers, the Company and the non-defaulting
Selling Stockholders shall have the right to postpone Closing Time for a period
not exceeding seven days in order to effect any required change in the
Registration Statement or Prospectus or in any other documents or arrangements.
(b) If the Company shall fail at the Closing Time or at the Date of
Delivery to sell the number of Securities that it is obligated to sell
hereunder, then this Agreement shall terminate without any liability on the part
of any non-defaulting party; provided, however, that the provisions of Sections
1, 4, 6, 7 and 8 shall remain in full force and effect. No actions taken
pursuant to this Section shall relieve the Company from liability, if any, in
respect of such default.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers at North Tower,
World Financial Center, New York, New York 10281-1201, attention of O, with a
copy to ▇▇▇ ▇. ▇▇▇▇ at ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇;
notices to the Company shall be directed to it at Three ▇▇▇▇▇ Center, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with a
copy to ▇▇▇▇▇ ▇. ▇▇▇▇▇ at ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; and notices to any Selling Stockholder shall be
directed to it c/o the Company at Three ▇▇▇▇▇ Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ , with a copy to ▇▇▇▇▇ ▇. ▇▇▇▇▇ at ▇▇▇▇▇▇ & ▇▇▇▇▇▇
L.L.P., ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
SECTION 13. Parties. This Agreement shall inure to the benefit of and
be binding upon the International Managers, each Combining Company and the
Selling Stockholders and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the International Managers, each
Combining Company and the Selling Stockholders and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the International Managers, the
Combining Companies and the Selling Stockholders and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any International Manager shall be
deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. Appointment of Agent for Service. PTI represents to each
International Manager that it has appointed CT Corporation System, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent (the "Authorized
Agent") for service of process in any action, suit or proceeding in any United
States federal court or any state court in the State of New
31
37
York, County of New York, and expressly accepts the nonexclusive jurisdiction of
any such court in respect of any such action, suit or proceeding. PTI represents
to each International Manager that it has notified CT Corporation System of such
designation and appointment and that CT Corporation System has accepted the same
in writing. PTI agrees to take any and all action, including the execution and
filing of all such instruments and documents as may be necessary to continue
such designation and appointment in full force and effect. Service of process
upon the Authorized Agent and written notice of such service to PTI shall be
deemed, in every respect, effective service of process upon such party.
SECTION 16. Consent to Jurisdiction. Each of the parties hereto
irrevocably agrees that any legal suit, action or proceeding arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York state or United States federal court sitting in the
State of New York, County of New York, and irrevocably waives, to the fullest
extent it may effectively do so, any objection which it may now or hereafter
have to the laying of venue of any such proceeding and irrevocably submits to
the jurisdiction of such courts in any such suit, action or proceeding.
SECTION 17. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
32
38
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company and the Attorney-in-Fact
for the Selling Stockholders a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement between the
International Managers, each Combining Company and the Selling Stockholders in
accordance with its terms.
Very truly yours,
OIL STATES INTERNATIONAL, INC.
By
----------------------------------
Name:
Title:
HWC ENERGY SERVICES, INC.
By
----------------------------------
Name:
Title:
PTI GROUP INC.
By
----------------------------------
Name:
Title:
SOONER INC.
By
----------------------------------
Name:
Title:
33
39
SELLING STOCKHOLDERS
By
----------------------------------
Name:
As Attorney-in-Fact acting on
behalf of the Selling Stockholders
Named in Schedule A hereto
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇▇▇▇▇ & COMPANY INTERNATIONAL
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By
-----------------------------------------
Authorized Signatory
For themselves and as Lead Managers of the
other International Managers named in Schedule B hereto.
34
40
SCHEDULE A
Number of
Initial
International
Securities
----------
Oil States International, Inc................................................
Selling Stockholders:
[Name]..............................................................
[Name]..............................................................
------------------
Total........................................................................ 2,920,000
==================
Sch ▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇
Number of
Initial
International
Name of International Manager Securities
----------------------------- ----------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International.............................................................
Credit Suisse First Boston (Europe) Limited.............................................
▇▇▇▇▇▇▇ & Company International.........................................................
---------------------
Total................................................................................... 2,920,000
=====================
Sch B-1
42
SCHEDULE C
Subsidiaries
Oil States International, Inc.
PTI Group Inc.
HWC Energy Services, Inc.
Sooner Inc.
Sch C-1
43
SCHEDULE D
OIL STATES INTERNATIONAL, INC.
2,920,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $O.
2. The purchase price per share for the International
Securities to be paid by the several International Managers shall be
$O, being an amount equal to the initial public offering price set
forth above less $O per share; provided that the purchase price per
share for any International Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall
be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial
International Securities but not payable on the International Option
Securities.
Sch D-1
44
SCHEDULE E
List of Persons and Entities
Subject to Lock-up
SCF-III, L.P.
SCF-IV, L.P.
L.E. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇...
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
The existing stockholders of Oil States
The stockholders of HWC, PTI and Sooner receiving shares in Combination
Sch ▇-▇
▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
(i) Each Combining Company other than PTI (individually, a
"U.S. Combining Company" and collectively, the "U.S. Combining Companies") has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation.
(ii) Each U.S. Combining Company has all requisite corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform its
obligations under the U.S. Purchase Agreement, the International Purchase
Agreement and the Combination Agreement.
(iii) Each U.S. Combining Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction set forth on Annex B to such opinion.
(iv) The authorized, issued and outstanding capital stock of
the Company is as described in the Prospectuses in the first paragraph under the
caption "Description of Capital Stock" (except for subsequent issuances, if any,
pursuant to the U.S. Purchase Agreement and the International Purchase Agreement
or pursuant to employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of options referred to in the Prospectuses and except
for preferred stock which is to be redeemed following the offering as described
in the Prospectuses under the caption "Use of Proceeds" (the "Redeemed Preferred
Stock")). The shares of issued and outstanding capital stock of the Company,
including the shares of Common Stock issued pursuant to the Combination
Agreement and the Securities to be purchased by the U.S. Underwriters and the
International Managers from the Selling Stockholders, have been duly authorized
and validly issued and are fully paid and non-assessable; and none of such
shares of capital stock of the Company was issued in violation of the statutory
preemptive rights or, to such counsel's knowledge, contractual preemptive rights
or other similar rights of any securityholder of the Company that have not been
waived. Assuming the accuracy of the representations and warranties and
compliance with the agreements of the stockholders of each Combining Company
contained in the respective Omnibus Consent, Waiver and Investment Agreements of
the stockholders of the Company, HWC and Sooner and the U.S. shareholders of PTI
and the Omnibus Voting, Waiver and Investment Agreements of the Canadian
shareholders of PTI, it is not necessary in connection with the offer, sale and
delivery of the securities of the Company pursuant to the Combination Agreement
to register such offer or sale under the ▇▇▇▇ ▇▇▇.
(v) The Securities to be purchased by the U.S. Underwriters
and the International Managers from the Company have been duly authorized by the
Company for issuance and sale to the Underwriters pursuant to the U.S. Purchase
Agreement and the International Purchase Agreement, respectively, and, when
issued and delivered by the Company
A-1-1
46
pursuant to the U.S. Purchase Agreement and the International Purchase
Agreement, respectively, against payment of the consideration set forth in the
U.S. Purchase Agreement and the International Purchase Agreement, will be
validly issued and fully paid and non-assessable and no holder of the Securities
is or will be subject to personal liability solely by reason of being such a
holder.
(vi) The issuance of the Securities by the Company and the
sale of the Securities by the Selling Stockholders is not subject to the
statutory preemptive rights or, to such counsel's knowledge, contractual
preemptive rights or other similar rights of any securityholder of the Company.
(vii) Each U.S. subsidiary of each Combining Company set forth
on Annex A to such opinion (individually, a "U.S. Subsidiary" and, collectively,
the "U.S. Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has all requisite corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction set forth on Annex C to such
opinion; except as otherwise disclosed in the Registration Statement (a) all of
the issued and outstanding capital stock of each such U.S. Subsidiary and of
each U.S. Combining Company (other than the Company) has been duly authorized
and validly issued and is fully paid and non-assessable and (b) to such
counsel's knowledge, all of the issued and outstanding capital stock of each
U.S. Subsidiary and of each Combining Company (other than the Company) is owned
by the Company, directly or through subsidiaries, except for the Redeemed
Preferred Stock, free and clear of any security interest, mortgage, pledge,
lien, encumbrance or claim, except as described in the Prospectuses or to secure
indebtedness which is to be repaid as described in the Prospectuses under the
caption "Use of Proceeds," none of the outstanding shares of capital stock of
any such U.S. Subsidiary or of any such U.S. Combining Company was issued in
violation of the statutory preemptive rights or, to such counsel's knowledge,
contractual preemptive rights or similar rights of any securityholder of such
U.S. Subsidiary or such U.S. Combining Company that have not been waived.
(viii) The U.S. Purchase Agreement, the International Purchase
Agreement and the Combination Agreement have been duly authorized, executed and
delivered by the Company and each other U.S. Combining Company. The Combination
Agreement is a legal, valid and binding agreement of each U.S. Combining Company
that is a party thereto, enforceable against it in accordance with its terms,
except that enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally, and by general principles of equity,
regardless of whether that enforceability is considered in a proceeding in
equity or at law and except that such counsel need express no opinion with
respect to the enforceability of indemnification or contribution provisions
therein.
(ix) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the Prospectuses pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to such
counsel's knowledge, no stop order suspending the
A-1-2
47
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or threatened by the Commission.
(x) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434 Information,
as applicable, the Prospectuses and each amendment or supplement to the
Registration Statement and the Prospectuses as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which such counsel need express no
opinion) appeared on their face to comply as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations.
(xi) If Rule 434 has been relied upon, the Prospectuses were
not "materially different," as such term is used in Rule 434, from the
prospectuses included in the Registration Statement at the time it became
effective.
(xii) The form of certificate used to evidence the Common
Stock complies in all material respects with all applicable statutory
requirements and with any applicable requirements of the charter and by-laws of
the Company.
(xiii) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which any U.S. Combining
Company or any of the U.S. Subsidiaries is a party or to which any of their
respective property is subject that are required to be described in the
Registration Statement or the Prospectuses and are not so described.
(xiv) The information in the Prospectuses under "Risk Factors
- SCF's ownership interest and provisions contained in our certificate of
incorporation and bylaws could discourage a takeover attempt, which may reduce
or eliminate the likelihood of a change of control transaction and, therefore,
your ability to sell your shares for a premium," "Risk Factors - We have
renounced any interest in specified business opportunities, and SCF and its
director nominees on our board of directors generally have no obligation to
offer us those opportunities," "Dividend Policy," "Management's Discussion and
Analysis of Financial Condition and Results of Operations - Liquidity and
Capital Resources," "Management - Classified Board," "Management - 2001 Equity
Participation Plan," "Management - Deferred Compensation Plan," "Management -
Annual Incentive Compensation Plan," "Management - Executive Agreements,"
"Management - Change of Control Severance Plan," "Related Party Transactions -
Registration Rights," "Description of Capital Stock," "Business - Government
Regulation," "Shares Eligible for Future Sale," and "Material United States
Federal Tax Consequences to Non-United States Holders of Common Stock" and in
the Registration Statement under Item 14, to the extent that it constitutes
matters of law, legal conclusions or summaries of legal matters, the Company's
charter or bylaws or contracts and agreements (including the Combination
Agreement) to which any Combining Company is a party, has been reviewed by such
counsel and is correct in all material respects.
(xv) To such counsel's knowledge, there are no statutes or
regulations that are required to be described in the Prospectuses that are not
described as required.
A-1-3
48
(xvi) To such counsel's knowledge, there are no contracts or
other agreements required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed as exhibits thereto.
(xvii) To such counsel's knowledge, none of the U.S. Combining
Companies or any U.S. Subsidiary is in violation of its charter or by-laws or
other organizational documents and no default by any of them exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectuses or filed as an exhibit to the
Registration Statement.
(xviii) The Certificate of Merger merging Merger Sub-Sooner,
Inc. with and into Sooner (the "Certificate of Merger"), as contemplated by the
Combination Agreement, complies with, and the merger contemplated thereby has
become effective under, the General Corporation Law of the State of Delaware.
The Articles of Merger merging Merger Sub-HWC, Inc. with and into HWC (the
"Articles of Merger"), as contemplated by the Combination Agreement, complies
with, and the merger contemplated thereby has become effective under, the
Business Corporation Act of the State of Texas.
(xix) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency of the United States or of the States of
Delaware, Texas or New York (other than (1) under the 1933 Act and the 1933 Act
Regulations, which have been obtained, (2) the filings of the Certificate of
Merger with the Secretary of State of the State of Delaware and the Articles of
Merger with the Secretary of State of the State of Texas, which have been made
and are effective and the issuance of a certificate of merger by the Secretary
of State of the State of Texas with respect to the merger of Merger Sub-HWC,
Inc. with and into HWC, which has been received, (3) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended, which has been obtained or (4)
as may be required under the securities or blue sky laws of the various states
in connection with the offering made by the Prospectuses, as to which such
counsel need express no opinion) is necessary or required in connection with the
due authorization, execution and delivery of the U.S. Purchase Agreement, the
International Purchase Agreement or the Combination Agreement, for the
consummation of the transactions contemplated by the Combination Agreement to be
consummated on or prior to the date of the opinion or for the offering,
issuance, sale or delivery of the Securities.
(xx) The execution, delivery and performance of the U.S.
Purchase Agreement, the International Purchase Agreement and the Combination
Agreement and the consummation of the transactions contemplated in the U.S.
Purchase Agreement, the International Purchase Agreement and the Combination
Agreement and in the Registration Statement (including the issuance and sale of
the Securities, and the use of the proceeds from the sale of the Securities as
described in the Prospectuses under the caption "Use of Proceeds") and
compliance by each Combining Company with its obligations under the U.S.
Purchase Agreement, the International Purchase Agreement and the Combination
Agreement have been duly authorized by all necessary corporate action and
proceedings by the U.S. Combining Companies, including those of
A-1-4
49
stockholders of the U.S. Combining Companies (to the extent required), and do
not and will not, whether with or without the giving of notice or lapse of time
or both, conflict with or constitute a breach of, or default or Repayment Event
(as defined in Section 1(a)(x) of the Purchase Agreements) under or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of any Combining Company or any of its subsidiaries pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument which is listed on Annex D to such
opinion (except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter, by-laws or
other organizational instrument of any U.S. Combining Company or any of the U.S.
Subsidiaries or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to such counsel, excluding any securities or blue sky laws
and the rules and regulations of the National Association of Securities Dealers,
Inc., of any Governmental Authority having jurisdiction over any U.S. Combining
Company or any of the U.S. Subsidiaries or any of its properties, assets or
operations. For purposes of this paragraph, the term "Governmental Authority"
means any Delaware, Texas, New York or United States federal executive,
legislative, judicial, administrative or regulatory body.
(xxi) To such counsel's knowledge, except as disclosed in the
Prospectuses under the caption "Related Party Transactions - Registration
Rights" and as set forth in Section 11.9(d) of the Combination Agreement, there
are no persons with registration rights or other similar rights to have any
securities of the Combining Companies registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act, except for
any persons with such rights that have been waived.
(xxii) To such counsel's knowledge, except as disclosed in the
Prospectuses, there are no outstanding options to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to issue or sell,
shares of the capital stock of any U.S. Combining Company or any such options,
rights, convertible securities or obligations.
(xxiii) None of the Combining Companies is an "investment
company" or an entity "controlled" by an "investment company," as such terms are
defined in the 1940 Act.
Nothing has come to our attention that would lead us to
believe that the Registration Statement or any amendment thereto, including the
Rule 430A Information and Rule 434 Information (if applicable) (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which we need make no statement), at the time such
Registration Statement or any such 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 that the Prospectuses or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which we need make no statement), at the time the
Prospectuses were issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or
A-1-5
50
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
A-1-6
51
EXHIBIT A-2
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CASGRAIN
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(ii)
(i) PTI has been duly amalgamated and is validly subsisting
under the laws of the Province of Alberta.
(ii) PTI has all requisite corporate power and authority to
own, lease and operate its properties and conduct its business as described in
the Prospectuses and to enter into and perform its obligations under the U.S.
Purchase Agreement, the International Purchase Agreement and the Combination
Transaction Agreements to which it is a party.
(iii) PTI is duly registered as an extra-provincial
corporation to transact business in each jurisdiction in which such registration
is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so register would not result in
a Material Adverse Effect.
(iv) Each wholly owned Canadian subsidiary of PTI (each, a
"Canadian Subsidiary") has been duly incorporated or amalgamated, as the case
may be, and is validly subsisting under the laws of the jurisdiction of its
incorporation or amalgamation, as the case may be, and has all requisite
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and is duly registered as
an extra-provincial corporation to transact business in each jurisdiction in
which such registration is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
register would not result in a Material Adverse Effect. Except as otherwise
disclosed in the Registration Statement, all of the issued and outstanding
shares in the capital of each Canadian Subsidiary and of PTI have been duly
authorized and validly issued, and are fully paid up and non-assessable. To such
counsel's knowledge, all of the issued and outstanding shares in the capital of
each Canadian Subsidiary are owned by PTI free and clear of any registered
security interest, mortgage, pledge, lien, encumbrance, claim or equity other
than in favour of Bank of Montreal or The Toronto-Dominion Bank. None of the
outstanding shares in the capital of any Canadian Subsidiary or of PTI was
issued in violation of the preemptive or similar rights of any securityholder
contained in the articles, by-laws or other organizational documents of such
Canadian Subsidiary or PTI or that arise under the laws of the Province of
Alberta.
(v) The U.S. Purchase Agreement, the International Purchase
Agreement and the Combination Transaction Agreements to which PTI is a party
have been duly authorized, executed and delivered by PTI. To the extent that the
laws of the Province of Alberta govern the Combination Transaction Agreements to
which PTI is a party, each of such Combination Transaction Agreements is a
legal, valid and binding agreement of PTI, enforceable against it in accordance
with its terms, except that enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws relating to or affecting
A-2-1
52
creditors' rights generally and by general principles of equity, regardless of
whether that enforceability is considered in a proceeding in equity or at law.
(vi) To such counsel's knowledge, neither PTI nor any Canadian
Subsidiary is in violation of its articles, by-laws or other organizational
documents and no default by any of them exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectuses or filed as an exhibit to the
Registration Statement.
(vii) The PTI Articles of Arrangement (as defined in the
Combination Agreement) comply with, and the PTI Arrangement (as defined in the
Combination Agreement) and the other transactions set out in clauses (a) through
(s) of the PTI Plan of Arrangement have occurred and become effective under, the
Business Corporations Act (Alberta).
(viii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree, known to such counsel,
of, any court or governmental authority or agency of the Province of Alberta
(other than as disclosed in the PTI Disclosure Letter (as defined in the
Combination Agreement)) is necessary or required in connection with the due
authorization, execution and delivery by PTI of the U.S. Purchase Agreement, the
International Purchase Agreement and the Combination Transaction Agreements to
which PTI is a party or for the consummation by PTI of the transactions
contemplated by the U.S. Purchase Agreement, the International Purchase
Agreement and such Combination Transaction Agreements.
(ix) The execution, delivery and performance by PTI of the
U.S. Purchase Agreement, the International Purchase Agreement and the
Combination Transaction Agreements to which PTI is a party and the consummation
by PTI of the transactions contemplated by the U.S. Purchase Agreement, the
International Purchase Agreement and such Combination Transaction Agreements and
in the Registration Statement and compliance by PTI with its obligations under
the U.S. Purchase Agreement, the International Purchase Agreement and such
Combination Transaction Agreements have been duly authorized by all necessary
corporate action and proceedings of PTI, and such action will not result in any
violation of the provisions of the articles, by-laws or other organizational
documents of PTI or any Canadian Subsidiary or any applicable law, statute,
rule, regulation, judgment, order, writ or decree, known to such counsel, of any
government, government instrumentality or court, of the Province of Alberta.
(x) To such counsel's knowledge, except as disclosed in the
Prospectuses and the PTI Disclosure Letter, there are no outstanding options to
purchase, or any preemptive rights or other rights to subscribe for or to
purchase, any securities or obligations convertible into, or any contracts or
commitments to issue or sell, shares in the capital of PTI or any Canadian
Subsidiary or any such options, rights, convertible securities or obligations.
Such opinion shall be confined to the laws of the Province of
Alberta and the laws of Canada applicable thereon and shall be based on
legislation and regulations in effect on the date thereof. Such counsel may
expressly disclaim any undertaking or obligation to modify such
A-2-2
53
opinion to reflect changes in developments in the law which may occur after the
date thereof. Such opinion shall be for the sole use and benefit of the
addressees in connection with the transaction referred to therein and cannot be
relied upon by any other party or for any other purpose without such counsel's
express written consent
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and PTI and of
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
A-2-3
54
EXHIBIT A-3
FORM OF OPINION OF COUNSEL
FOR THE SELLING STOCKHOLDERS
TO BE DELIVERED
PURSUANT TO SECTION 5(c)
(i) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than as may be
necessary under United States state securities laws, as to which we need express
no opinion) is necessary or required to be obtained by the Selling Stockholder
for the performance by the Selling Stockholder of its obligations under the U.S.
Purchase Agreement or the International Purchase Agreement, or in the
Stockholder Agreements, or in connection with the offer, sale or delivery of the
Securities.
(ii) Each of the Stockholder Agreements has been duly
authorized, executed and delivered by the Selling Stockholder named therein and
constitutes the legal, valid and binding agreement of such Selling Stockholder.
The U.S. Purchase Agreement and the International Purchase Agreement have been
duly authorized, executed and delivered by or on behalf of the Selling
Stockholder.
(iii) Each Attorney-in-Fact has been duly and irrevocably
authorized by the Selling Stockholder to deliver the Securities on behalf of
such Selling Stockholder in accordance with the terms of the U.S. Purchase
Agreement and the International Purchase Agreement.
(iv) The execution, delivery and performance of the U.S.
Purchase Agreement, the International Purchase Agreement and the Stockholder
Agreements and the sale and delivery of the Securities and the consummation of
the transactions contemplated in the U.S. Purchase Agreement and the
International Purchase Agreement and in the Registration Statement and
compliance by the Selling Stockholder with its obligations under the U.S.
Purchase Agreement, the International Purchase Agreement and the Stockholder
Agreements have been duly authorized by all necessary action on the part of such
Selling Stockholder and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach of,
or default under or result in the creation or imposition of any tax, lien,
charge or encumbrance upon the Securities or any property or assets of such
Selling Stockholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other instrument or
agreement to which such Selling Stockholder is a party or by which it may be
bound, or to which any of the property or assets of such Selling Stockholder may
be subject, nor will such action result in any violation of the provisions of
the charter or by-laws of the Selling Stockholder, if applicable, or any law,
administrative regulation, judgment or order of any governmental agency or body
or any administrative or court decree having jurisdiction over such Selling
Stockholder or any of its properties.
A-3-1
55
(v) The Selling Stockholder (together with such Selling
Stockholder's spouse, if applicable) has good and marketable title to the
Securities to be sold by such Selling Stockholder pursuant to the U.S. Purchase
Agreement and the International Purchase Agreement, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or encumbrance
of any kind, and has full right, power and authority to sell, transfer and
deliver such Securities pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement. By delivery of such Securities and payment of
the purchase price therefor as contemplated by the U.S. Purchase Agreement and
the International Purchase Agreement, such Selling Stockholder will transfer to
the Underwriters who have purchased such Securities pursuant to the U.S.
Purchase Agreement and the International Purchase Agreement (assuming each such
Underwriter has no notice of any adverse claim, as defined in Uniform Commercial
Code as adopted in the State of New York (the "NYUCC")), good and marketable
title to such Securities, free and clear of any adverse claim (as defined in the
NYUCC), security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
A-3-2
56
EXHIBIT B
[FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR
OTHER STOCKHOLDERS PURSUANT TO SECTION 5(K)]
O, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
Credit Suisse First Boston (Europe) Limited
▇▇▇▇▇▇▇ & Company International
as Lead Managers of the several International Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Re: Proposed Public Offering by Oil States International, Inc.
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of Oil
States International, Inc., a Delaware corporation (the "Company"), understands
that ▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), Credit Suisse First Boston
(Europe) Limited and ▇▇▇▇▇▇▇ & Company International propose to enter into a
International Purchase Agreement (the "International Purchase Agreement") with
the Company providing for the public offering of shares of the Company's common
stock, par value $0.01 per share (the "Common Stock"). In recognition of the
benefit that such an offering will confer upon the undersigned as a stockholder
[and an officer and/or director] of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the International
Purchase Agreement that, during a period of 180 days from the date of the
International Purchase Agreement, the undersigned will not, without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, (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 for the sale of,
or otherwise dispose of or transfer any shares of the Company's Common Stock or
any securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing, or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
Notwithstanding the foregoing, without obtaining the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, the undersigned will be permitted to transfer shares
of Common Stock otherwise subject
B-1
57
to this letter agreement to any immediate family member of the Stockholder, any
trust established for the benefit of any such immediate family member or any
corporation wholly owned by the Stockholder or any combination of the
Stockholder and any of the foregoing, provided that, prior to such transfer and
as a condition thereof, the transferee shall deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇ a written
agreement to be bound by the restrictions set forth herein until the expiration
of the aforementioned 180-day period.
Very truly yours,
Signature:
-----------------------------------
Print Name:
---------------------------------
B-2