EXHIBIT 1.1
4,700,000 Shares
SPINNAKER EXPLORATION COMPANY
COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
December 14, 2000
Credit Suisse First Boston Corporation
Banc of America Securities LLC
Deutsche Bank Securities Inc.
ING Barings LLC
UBS Warburg LLC,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Dear Sirs:
1. Introductory. Seismic Energy Holdings, Inc., a Delaware corporation
("SELLING STOCKHOLDER"), proposes to sell 4,700,000 outstanding shares ("FIRM
SECURITIES") of the common stock, par value $.01 per share ("SECURITIES"), of
Spinnaker Exploration Company, a Delaware corporation ("COMPANY"), and also
proposes to sell to the Underwriters, at the option of the Underwriters, not
more than 688,743 additional outstanding shares ("OPTIONAL SECURITIES") of the
Company's Securities as set forth below. The Firm Securities and the Optional
Securities are herein collectively called the "OFFERED SECURITIES". The Selling
Stockholder is a wholly owned subsidiary of Petroleum Geo-Services ASA, a
Norwegian limited liability company ("PGS"). Each of the Selling Stockholder,
PGS, the Company and the several Underwriters named in Schedule A hereto
("UNDERWRITERS") hereby agrees as follows:
2. Representations and Warranties of the Company, the Selling
Stockholder and PGS. (a) The Company represents and warrants to, and agrees
with, the several Underwriters that:
(i) A registration statement (No. 333-49152), including a
prospectus, relating to the Offered Securities has been filed with the
Securities and Exchange Commission ("COMMISSION") and has become
effective. Such registration statement, as amended as of the date of
this Agreement, is hereinafter referred to as the "REGISTRATION
STATEMENT", and the prospectus included in such Registration Statement,
as supplemented to reflect the terms of offering of the Offered
Securities, as first filed on or after the date of this Agreement with
the Commission pursuant to and in accordance with Rule 424(b) ("RULE
424(B)") under the Securities Act of 1933 ("ACT"), including all
material incorporated by reference therein, is hereinafter referred to
as the "PROSPECTUS". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(ii) On the effective date of the Registration Statement, such
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
on the date of this Agreement, the Registration Statement and the
Prospectus conform in all material respects to the requirements of the
Act and the Rules and Regulations, and neither of such documents
includes any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not
apply to statements in or omissions from any of such documents based
upon written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except where
the failure to so qualify would not have a material adverse effect on
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole
("MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company has been duly incorporated
or otherwise organized and is an existing corporation or other entity in
good standing under the laws of the jurisdiction of its incorporation or
organization, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation or other entity in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except where the failure to
so qualify would not have a Material Adverse Effect; all of the issued
and outstanding capital stock or other ownership interest of each
subsidiary of the Company has been duly authorized and validly issued
and is fully paid and nonassessable; and, except as disclosed in the
Prospectus, the capital stock or other ownership interest of each
subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly
issued, fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered pursuant
to the Registration Statement (the relevant provisions of which have not
been waived) or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(viii) The Securities are listed on The New York Stock Exchange.
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(ix) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the
Offered Securities by the Selling Stockholder, except such as have been
obtained and made under the Act and such as may be required under state
securities laws and except for consents, approvals, authorizations,
orders or filings the failure to obtain or make would not have a
Material Adverse Effect.
(x) The execution, delivery and performance of this Agreement,
and the sale of the Offered Securities by the Selling Stockholder herein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under (i) any statute,
any rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any agreement
or instrument to which the Company or any such subsidiary is a party or
by which the Company or any such subsidiary is bound or to which any of
the properties of the Company or any such subsidiary is subject, or (ii)
the charter, by-laws or other organizational documents of the Company or
any such subsidiary other than, in the case of clause (i), such
breaches, violations or defaults that would not, individually or in the
aggregate, have a Material Adverse Effect.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as described in the Prospectus, each of the Company
and its subsidiaries has (i) good and indefeasible title to all its
interests in its oil and gas properties, and title investigations have
been carried out by or on behalf of the Company in accordance with good
practice in the oil and gas industry in the areas in which the Company
and its subsidiaries operate and (ii) good and indefeasible title to all
other real property and marketable title to all other material
properties and assets described in the Prospectus as owned by the
Company or such subsidiary and valid, subsisting and enforceable leases
for all properties and assets, real or personal, described in the
Prospectus as leased by them, in each case free and clear of any
imperfections of title, security interests, mortgages, pledges, liens,
encumbrances or charges of any kind, other than those described in the
Prospectus and those that could not, individually or in the aggregate,
have a Material Adverse Effect.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them, except for such certificates, authorities or permits with respect
to which the lack of possession would not, individually or in the
aggregate, have a Material Adverse Effect, and have not received any
notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might reasonably be expected to have a Material Adverse Effect.
(xv) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, "INTELLECTUAL
PROPERTY RIGHTS") necessary to conduct the business now operated by
them, or presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to the
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Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating
to any environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material Adverse
Effect; and the Company is not aware of any pending investigation which
might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and, to
the Company's knowledge, no such actions, suits or proceedings are
threatened or contemplated.
(xviii) The financial statements included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown, and such financial statements have
been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis.
(xix) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus there has been no material adverse change,
nor any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a
whole, and there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(xx) The information on the basis of which the reserve estimates
and related information included in the Registration Statement and the
Prospectus or incorporated by reference therein that was prepared by the
Company, its subsidiaries, Ryder Scott Company, L.P., independent oil
and natural gas engineers, or any other person, is true and correct in
all material respects.
(xxi) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xxii) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and
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customary in the businesses in which they are engaged; and neither the
Company nor any of its subsidiaries have any reason to believe that they
will not be able to renew their existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the condition (financial or
otherwise), business prospects, net worth or results of operations of
the Company and its subsidiaries, except as described in or contemplated
by the Prospectus.
(xxiii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(xxiv) The Company has filed in a timely manner with the
Commission each document required to be filed by it pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), each
such document at the time it was filed conformed in all material
respects to the requirements of the Exchange Act and none of such
documents 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, in light of the circumstances under which they
were made, not misleading.
(b) The Selling Stockholder and PGS each represents and warrants to, and
agrees with, the several Underwriters that:
(i) The Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by the Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by the Selling Stockholder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities on each Closing Date hereunder the several Underwriters will
acquire valid and unencumbered title to the Offered Securities to be
delivered by the Selling Stockholder on such Closing Date.
(ii) On the effective date of the Registration Statement, such
registration statement conformed in all material respects to the
requirements of the Act and the Rules and Regulations and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of this Agreement,
the Registration Statement and the Prospectus conform in all material
respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents includes any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
preceding sentence applies only to the extent that any statements in or
omissions from the Registration Statement or the Prospectus are based on
written information furnished to the Company by the Selling Stockholder
specifically for use therein, it being understood and agreed that, for
purposes of this Agreement, including Section 7 hereof, the only such
information furnished by the Selling Stockholder consists of the
following information in the Prospectus: (i) under the caption "Security
Ownership of the Selling Stockholder, Management and Certain Beneficial
Holders," (a) the first sentence of the first paragraph, (b) the
statement in the second paragraph that "the address of Petroleum Geo-
Services and Messrs. Bruheim and Michaelsen is Strandveien 50E, P.O. Box
89, N-1325 Lysaker, Norway," (c) the number of shares beneficially owned
by PGS in the column captioned "Beneficial Ownership--Shares" and (d)
the first two sentences of footnote (1) under the table, (ii) under the
caption "Underwriting," the row in the second table setting forth the
per share and total expenses payable by the Selling Stockholder and
(iii) the number of shares owned by the Selling Stockholder as of
November 28, 2000 as set forth under the caption "Selling Stockholder."
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(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Selling Stockholder
or PGS and any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder's fee or
other like payment.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Selling Stockholder agrees to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the Selling Stockholder, at a purchase price of $27.93 per
share, the respective numbers of Firm Securities set forth opposite the names of
the Underwriters in Schedule A hereto.
The Selling Stockholder will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to Credit Suisse First Boston
Corporation ("CSFBC") drawn to the order of Seismic Energy Holdings, Inc. at the
office of Baker Botts L.L.P., One Shell Plaza, 910 Louisiana, Houston, Texas
77002, at 9:00 A.M., New York time, on December 20, 2000, or at such other time
not later than seven full business days thereafter as CSFBC and the Selling
Stockholder determine such time being herein referred to as the "FIRST CLOSING
DATE". For purposes of Rule 15c6-1 under the Exchange Act, the First Closing
Date (if later than the otherwise applicable settlement date) shall be the
settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBC requests and will be made available for
checking and packaging at the office of ComputerShare Investor Services, LLC, 2
North LaSalle Street, 3rd Floor, Chicago, Illinois 60602 at least 24 hours prior
to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and the
Selling Stockholder from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Selling Stockholder agrees to sell to the Underwriters the
number of shares of Optional Securities specified in such notice and the
Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the number of shares of Firm Securities
set forth opposite such Underwriter's name bears to the total number of shares
of Firm Securities (subject to adjustment by CSFBC to eliminate fractions) and
may be purchased by the Underwriters only for the purpose of covering over-
allotments made in connection with the sale of the Firm Securities. No Optional
Securities shall be sold or delivered unless the Firm Securities previously have
been, or simultaneously are, sold and delivered. The right to purchase the
Optional Securities or any portion thereof may be exercised from time to time
and to the extent not previously exercised may be surrendered and terminated at
any time upon notice by CSFBC to the Selling Stockholder.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Selling Stockholder will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Representatives for the accounts of the several Underwriters, against
payment of the purchase price in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of Seismic Energy Holdings, Inc., at the above office of Baker Botts
L.L.P. The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as CSFBC requests upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at
the above office of ComputerShare Investor Services, LLC at a reasonable time in
advance of such Optional Closing Date.
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Certificates in negotiable form for the Offered Securities have been placed
in custody, for delivery under this Agreement under a Custody Agreement made
with ComputerShare Investor Services, LLC, as custodian ("CUSTODIAN"). Selling
Stockholder agrees that the shares represented by the certificates held in
custody for the Selling Stockholder under such Custody Agreement are subject to
the interests of the Underwriters hereunder, that the arrangements made by the
Selling Stockholder for such custody are to that extent irrevocable, and that
the obligations of the Selling Stockholder hereunder shall not be terminated by
operation of law.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholder. (a)
The Company agrees with the several Underwriters and the Selling Stockholder
that:
(i) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(5) not later than the
second business day following the execution and delivery of this
Agreement.
(ii) The Company will advise CSFBC promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and
will afford CSFBC a reasonable opportunity to comment on such proposed
amendment or supplement; and the Company will also advise CSFBC promptly
of the filing of any amendment or supplementation of the Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of the Registration Statement or
any part thereof and will use its reasonable best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(iii) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at the expense of the Selling
Stockholder, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
Neither CSFBC's consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(iv) As soon as practicable, but not later than 16 months, after
the date of this Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the later of (i) the effective date of the
most recent post-effective amendment to the Registration Statement to
become effective prior to the date of this Agreement and (ii) the date
of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of this Agreement, which will satisfy the
provisions of Section 11(a) of the Act.
(v) The Company will furnish to the Representatives copies of
the Registration Statement, six of which will be signed and will include
all exhibits, each related preliminary prospectus supplement, and, so
long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC requests. The
Prospectus shall be furnished on or prior to 3:00 P.M., New
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York time, on the business day following the execution and delivery of
this Agreement. All other such documents should be furnished as soon as
available. The Selling Stockholder will pay the expenses of printing and
distributing to the Underwriters all such documents.
(vi) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFBC reasonably designates and will continue such qualifications in
effect so long as required for the distribution.
(vii) During the period of five years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as CSFBC may reasonably request; provided,
however, that the Company shall not be required to furnish any
information to the Representatives pursuant to this Section 5(vii) if by
virtue of the provision of such information to the Representatives, in
the Company's reasonable judgment, the Company would be required to make
such information publicly available pursuant to the Securities Act, the
Exchange Act, Regulation FD or any other rule or regulation promulgated
thereunder.
(viii) For a period of 60 days after the date of the Prospectus,
the Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares
of its Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFBC, except grants of employee or
director stock options, including pursuant to a stock purchase plan,
pursuant to the terms of a plan in effect on the date hereof, issuances
of Securities pursuant to the exercise of such options or the exercise
of any other employee stock options outstanding on the date hereof or
issuances of Securities pursuant to the Company's 401(k) plan as in
effect on the date hereof.
(b) The Selling Stockholder and PGS each agrees with the several
Underwriters and the Company that:
(i) The Selling Stockholder will pay all expenses incident to
the performance of the obligations of the Selling Stockholder and the
obligations of the Company (exclusive of the Company's indemnity and
contribution obligation under Section 7 hereof) under this Agreement,
for any filing fees and other expenses (including reasonable fees and
disbursements of counsel) incurred in connection with qualification of
the Offered Securities for sale under the laws of such jurisdictions as
CSFBC designates and the preparation of memoranda relating thereto, for
the filing fee incident to the review by the National Association of
Securities Dealers, Inc. of the Offered Securities, for any travel
expenses of the Company's officers and employees and any other expenses
of the Company (other than internal expenses) in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities, for any transfer taxes on the sale of the Offered Securities
to the Underwriters and for expenses incurred in distributing
preliminary prospectus supplements and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(ii) The Custodian will agree to deliver to CSFBC, attention:
Transactions Advisory Group on the Closing Date a letter stating that
they will deliver to the Selling Stockholder a United States Treasury
Department Form 1099 (or other applicable form or
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statement specified by the United States Treasury Department regulations
in lieu thereof) on or before January 31 of the year following the date
of this Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholder herein, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company and the Selling Stockholder of their
obligations hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which shall be on or prior to the date of this
Agreement), of Arthur Andersen LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect
that:
(i) in their opinion the financial statements examined by them
and included in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Registration Statement.
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements of
the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them to believe
that:
(A) the unaudited financial statements included in the
Registration Statement do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the related
published Rules and Regulations or any material modifications should be
made to such unaudited financial statements for them to be in conformity
with generally accepted accounting principles;
(B) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than three
business days prior to the date of such letter, there was any change in
the capital stock or any increase in short-term indebtedness or long-
term debt of the Company and its consolidated subsidiaries or, at the
date of the latest available balance sheet read by such accountants,
there was any decrease in consolidated net current assets or net assets,
as compared with amounts shown on the latest balance sheet included in
the Prospectus; or
(C) for the period from the closing date of the latest statement
of operations included in the Prospectus to the closing date of the
latest available statement of operations read by such accountants there
were any decreases, as compared with the corresponding period of the
previous year in consolidated net sales or net operating income) in the
total or per share amounts of consolidated net income.
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
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(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statement (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by analysis
or computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements included in material incorporated by reference
into the Registration Statement shall be deemed included in the
Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this Agreement.
Prior to any Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Selling
Stockholder, the Company or the Representatives, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken as one
enterprise which, in the judgment of a majority in interest of the Underwriters
including CSFBC, is material and adverse and makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and payment for
the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the over-the-
counter market; (iv) any banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters including CSFBC, the effect of any
such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Offered Securities.
(d) The Representatives shall have received from the Selling
Stockholder, Warburg, Pincus Ventures, L.P. and each person who is a director or
officer of the Company who owns shares of Securities on the date of this
Agreement an agreement to the effect that, for a period of 60 days after the
date of the Prospectus, such person or entity will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any shares of
Securities or securities convertible into or exchangeable or exercisable for any
shares of Securities, or publicly disclose the intention to make any such offer,
sale, pledge or disposal, without the prior written consent of CSFBC.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Vinson & Elkins L.L.P., counsel for the Company, to the effect
that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus; the Company is duly qualified
10
to do business as a foreign corporation in the State of Texas; Spinnaker
Exploration Company, L.L.C. has been duly organized and is an existing
limited liability company in good standing under the laws of the State
of Delaware, with limited liability company power and authority to own
its properties and conduct its business as presently conducted;
Spinnaker Exploration Company, L.L.C. is duly qualified to do business
as a foreign limited liability company in the States of Texas and
Louisiana.
(ii) The Offered Securities conform in all material respects to
the description thereof contained in the Registration Statement and the
Prospectus; the Offered Securities have been duly and validly authorized
and issued, and are fully paid and nonassessable; stockholders of the
Company are not entitled to preemptive rights under the Company's
Certificate of Incorporation or Bylaws or under the Delaware General
Corporation Law or, to such counsel's knowledge, any contract to which
the Company is a party in connection with the Offered Securities; all
outstanding shares of the capital stock of the Company (other than the
Offered Securities) have been duly authorized and validly issued and are
fully paid and nonassessable;
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings known to such counsel between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to
any securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement (the relevant
provisions of which have not been waived) or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act;
(iv) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the sale of the Offered Securities by the Selling
Stockholder, except such as have been obtained and made under the Act
and such as may be required under state securities laws and except for
consents, approvals, authorizations, orders or filings the failure to
obtain or make would not have a Material Adverse Effect;
(v) The execution, delivery and performance of this Agreement
and the sale of the Offered Securities by the Selling Stockholder will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, (i) any statute, any rule or, to the
knowledge of such counsel, regulation or order of any governmental
agency or body or any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties (except that such
counsel need not express any opinion with respect to federal or state
securities laws or blue sky laws with respect to this paragraph), or any
material agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary is
bound or to which any of the properties of the Company or any such
subsidiary is subject known to such counsel, or (ii) the charter, by-
laws or other organizational documents of the Company or any such
subsidiary, other than with respect to clause (i) such breaches,
violations or defaults that would not, individually or in the aggregate,
have a Material Adverse Effect;
(vi) The Registration Statement was declared effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and such
counsel have no reason to believe that the Registration Statement and
the Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, was not appropriately responsive in
all material respects to the requirements of the Act and the Rules and
Regulations; such counsel have no reason to believe that any part of the
Registration
11
Statement or any amendment thereto, as of its effective date, contained
any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; the descriptions in the Prospectus under the captions
"Business and Properties--Petroleum Geo-Services Data Agreement" and
"--Regulation," and "Description of Capital Stock" of statutes, legal
and governmental proceedings and contracts and other documents are
accurate in all material respects and fairly presented; and such counsel
do not know of any legal or governmental proceedings required to be
described in the Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a character
required to be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such counsel
need express no opinion as to the financial statements, schedules or
other financial data or reserve information or information that pertains
or relates to estimated natural resources reserves, estimated future net
reserves therefrom or the discounted net present value of such estimated
future net reserves contained in the Registration Statement or the
Prospectus; and
(vii) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Representatives shall have received an opinion, dated such
Closing Date,
(i) of Vinson & Elkins L.L.P., counsel for the Company, to the
effect that:
(A) Immediately prior to the sale of the Offered Securities to be
sold by the Selling Stockholder under this Agreement, the Selling
Stockholder was the record owner of the Offered Securities to be sold
on such Closing Date by the Selling Stockholder;
(B) Assuming the Underwriters purchase the Offered Securities in
good faith and without "notice of an adverse claim" (as that phrase is
used in Section 8-105 of the Uniform Commercial Code as in effect in
the State of Delaware on such Closing Date (the "Delaware UCC")), upon
(i) delivery to the Underwriters of the certificates representing the
Offered Securities endorsed in blank by an effective endorsement, and
(ii) payment therefor in accordance with the terms of this Agreement,
the Underwriters will become "protected purchasers" (as defined in
Section 8-303(a) of the Delaware UCC) of the Offered Securities, free
and clear of "adverse claims" (as defined in Section 8-102 of the
Delaware UCC), except for any such adverse claims created by or at the
behest of the Underwriters;
(C) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Selling Stockholder for the consummation of
the transactions contemplated by the Custody Agreement and or this
Agreement in connection with the sale of the Offered Securities,
except such as have been obtained and made under the Act and such as
may be required under state securities laws;
(D) The execution, delivery and performance of the Custody
Agreement and this Agreement and the consummation of the transactions
therein and herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any existing statute, any rule, or, to the knowledge of
such counsel, regulation or order of any governmental agency or body
or any court
12
having jurisdiction over the Selling Stockholder or any of its
properties (except that such counsel need not express any opinion with
respect to federal or state securities laws or blue sky laws with
respect to this paragraph) or any agreement or instrument to which the
Selling Stockholder is a party or by which the Selling Stockholder is
bound or to which any of the properties of the Selling Stockholder is
subject, known to such counsel, or the charter or by-laws of the
Selling Stockholder; and
(E) The Custody Agreement with respect to the Selling Stockholder
has been duly authorized, executed and delivered by the Selling
Stockholder and constitutes a valid and legally binding obligation of
the Selling Stockholder enforceable in accordance with its terms,
except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or
at law); and
(F) This Agreement has been duly authorized, executed and
delivered by the Selling Stockholder.
(ii) of Knut Haavardsen, general counsel of PGS, to the effect that
this Agreement has been duly authorized, executed and delivered by
PGS.
(g) The Representatives shall have received from Baker Botts L.L.P.,
counsel for the Underwriters, such opinion or opinions, dated such Closing Date,
with respect to the incorporation of the Company, the validity of the Offered
Securities delivered on such Closing Date, the Registration Statement, the
Prospectus and other related matters as CSFBC may require, and the Company shall
have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(h) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge, shall state that: the representations and warranties of the
Company in this Agreement are true and correct; the Company has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order suspending
the effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission; and, subsequent to the date of the most recent financial statements
incorporated by reference in the Prospectus, there has been no material adverse
change in, nor any development or event that could be reasonably expected to
have a material adverse effect on, the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as
a whole except as set forth in or contemplated by the Prospectus or as described
in such certificate.
(i) The Representatives shall have received a letter, dated such Closing
Date, of Arthur Andersen LLP which meets the requirements of subsection (a) of
this Section, except that the specified date referred to in such subsection will
be a date not more than three days prior to such Closing Date for the purposes
of this subsection.
(j) The Representatives shall have received from Ryder Scott Company,
L.P., independent natural gas and oil engineers, a letter or letters dated,
respectively, the date of this Agreement and of the Closing Date, in form and
substance satisfactory to the Representatives, each stating, as of the date of
such letter (or, with respect to matters involving changes or developments since
the respective dates as of which information regarding the natural gas and oil
reserves and future net cash flows is given in the Prospectus, as of the date
not more than three days prior to the date of such letter), the conclusions and
findings of such
13
firm with respect to the natural gas and oil reserves of the Company and such
other matters as the Representatives reasonably may request.
The Company will furnish the Underwriters with such conformed copies of such
opinions, certificates, letters and documents as CSFBC reasonably requests.
CSFBC may in its sole discretion waive on behalf of the Underwriters compliance
with any conditions to the obligations of the Underwriters hereunder, whether in
respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus supplement, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through CSFBC
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in subsection (c) below.
(b) The Selling Stockholder and PGS, jointly and severally, will
indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Selling Stockholder and PGS will only be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by the Selling Stockholder specifically for use therein, or contained in
a representation or warranty given by the Selling Stockholder or PGS in this
Agreement.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, PGS and the Selling Stockholder, their respective
directors and officers and each person, if any, who controls the Company, PGS or
the Selling Stockholder within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company, PGS or the Selling
Stockholder may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to
14
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through CSFBC
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company, PGS or the Selling Stockholder in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the fourth paragraph under the
caption "Underwriting"; and (ii) the following information in the Prospectus
furnished on behalf of Credit Suisse First Boston Corporation: "Credit Suisse
First Boston Corporation, one of the underwriters for this offering, is a
subsidiary of Credit Suisse Group, which indirectly holds a 19.9% passive
minority interest in Warburg, Pincus & Co."
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action 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 an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholder (including PGS) on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholder (including PGS) on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholder (including PGS) on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Selling Stockholder bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Stockholder (including PGS) or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified
15
party in connection with investigating or defending any action or claim which is
the subject of this subsection (e). Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholder
(including PGS) under this Section shall be in addition to any liability which
the Company and the Selling Stockholder (including PGS) may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed the Registration Statement and to each person, if any,
who controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Selling Stockholder for the purchase of
such Offered Securities by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC and the Selling Stockholder for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Company, PGS or the Selling Stockholder, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholder, of PGS, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Selling Stockholder (including PGS) shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholder, PGS, and the Underwriters pursuant to Section 7 shall remain in
effect, and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the Offered Securities by the
Underwriters is not
16
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 6(c), the Selling Stockholder or PGS will
reimburse the Underwriters for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) reasonably incurred by them in connection
with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, NY 10010-3629, Attention: Transactions Advisory Group,
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 1200 Smith Street, Suite 800, Houston, Texas 77002,
Attention: Roger L. Jarvis, or, if sent to the Selling Stockholder or PGS, will
be mailed, delivered or telegraphed and confirmed to Petroleum Geo-Services ASA
at Strandveien 50 E, P.O. Box 89, N-1325 Lysaker, Norway, Attn: General Counsel,
with a copy to 16010 Barker's Point Lane, Houston, Texas 77079, Attn: Chief
Financial Officer; provided, however, that any notice to an Underwriter pursuant
to Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation. CSFBC will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by CSFBC will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
17
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholder, the Company and the several Underwriters in accordance with
its terms.
Very truly yours,
Seismic Energy Holdings, Inc.
By: /s/ SEAN M. GORE
-------------------------------
Title: Vice President Finance
Petroleum Geo-Services ASA
By: /s/ J. CHRISTOPHER BOSWELL
-------------------------------
J. Christopher Boswell
Senior Vice President
and Chief Financial Officer
Spinnaker Exploration Company
By: /s/ ROGER L. JARVIS
-------------------------------
Title: Chairman, President and Chief
Executive Officer
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
Credit Suisse First Boston Corporation
Banc of America Securities LLC
Deutsche Bank Securities Inc.
ING Barings LLC
UBS Warburg LLC
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By: Credit Suisse First Boston Corporation
By: /s/ MICHAEL MERCER
-----------------------------------------
Title: Director
18
SCHEDULE A
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston Corporation.................... 1,504,000
Banc of America Securities LLC............................ 799,000
Deutsche Bank Securities Inc.............................. 799,000
ING Barings LLC........................................... 799,000
UBS Warburg LLC........................................... 799,000
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Total................................................. 4,700,000
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A-1