[FORM OF UNDERWRITING
AGREEMENT]
COMPLETE PRODUCTION SERVICES,
INC.
Credit Suisse
Securities (USA) LLC
UBS Securities
LLC,
As Representatives of the
Several Underwriters (“ Representatives
”),
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison
Avenue,
New York,
N.Y. 10010-3629
1.
Introductory . Complete Production Services, Inc., a
Delaware corporation (the “Company”), proposes to issue
and
sell shares
of its common stock, par value $0.01 per share
(“Securities”) and the stockholders listed in
Schedule A hereto (“Selling Stockholders”) propose
severally to sell an aggregate
of outstanding
shares of the Securities
(such shares
of Securities being hereinafter referred to as the “Firm
Securities”). The Selling Stockholders also propose to sell
to the Underwriters, at the option of the Underwriters, an
aggregate of not more
than additional
outstanding shares of the Company’s Securities, as set forth
below
(such additional
shares being hereinafter referred to as the “Optional
Securities”). The Firm Securities and the Optional Securities
are herein collectively called the “Offered
Securities”. As part of the offering contemplated by this
Agreement, UBS Securities LLC (the “Designated
Underwriter”) has agreed to reserve out of the Firm
Securities purchased by it under this Agreement, up
to shares,
for sale to the Company’s directors, officers, employees and
other parties associated with the Company (collectively,
“Participants”), as set forth in the Prospectus (as
defined herein) under the heading “Underwriting” (the
“Directed Share Program”). The Firm Securities to be
sold by the Designated Underwriter pursuant to the Directed Share
Program (the “Directed Shares”) will be sold by the
Designated Underwriter pursuant to this Agreement at the public
offering price. Any Directed Shares not subscribed for by the end
of the business day on which this Agreement is executed will be
offered to the public by the Underwriters as set forth in the
Prospectus. The Company and the Selling Stockholders hereby agree
with the several Underwriters named in Schedule B hereto
(“Underwriters”) as follows:
2.
Representations and Warranties of the Company and the Selling
Stockholders . (a) The Company represents and warrants to,
and agrees with, the several Underwriters that:
(i) A registration
statement (No. 333-128750) relating to the Offered Securities,
including a form of prospectus, has been filed with the Securities
and Exchange Commission (“Commission”) and either
(A) has been declared effective under the Securities Act of
1933, as amended (“Act”), and
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is not proposed
to be amended or (B) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the
“initial registration statement”) has been declared
effective, either (A) an additional registration statement
(the “additional registration statement”) relating to
the Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) (“Rule 462(b)”) under the
Act and, if so filed, has become effective upon filing pursuant to
such Rule and the Offered Securities all have been duly registered
under the Act pursuant to the initial registration statement and,
if applicable, the additional registration statement or
(B) such an additional registration statement is proposed to
be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such
filing the Offered Securities will all have been duly registered
under the Act pursuant to the initial registration statement and
such additional registration statement. If the Company does not
propose to amend the initial registration statement or if an
additional registration statement has been filed and the Company
does not propose to amend it, and if any post-effective amendment
to either such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement,
the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c)
(“Rule 462(c)”) under the Act or, in the case of
the additional registration statement, Rule 462(b). For
purposes of this Agreement, “Effective Time” with
respect to the initial registration statement or, if filed prior to
the execution and delivery of this Agreement, the additional
registration statement means (A) if the Company has advised
the Representatives that it does not propose to amend such
registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if
the Company has advised the Representatives that it proposes to
file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been
filed prior to the execution and delivery of this Agreement but the
Company has advised the Representatives that it proposes to file
one, “Effective Time” with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to
Rule 462(b). “Effective Date” with respect to the
initial registration statement or the additional registration
statement (if any) means the date of the Effective Time thereof.
The initial registration statement, as amended at its Effective
Time, including all information contained in the additional
registration statement (if any) and deemed to be a part of the
initial registration statement as of the Effective Time of the
additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to
Rule 430A(b) (“Rule 430A(b)”) under the Act,
is hereinafter referred to as the “Initial Registration
Statement”. The additional registration statement, as amended
at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant
to Rule 430A(b), is hereinafter referred to as the
“Additional Registration Statement”. The Initial
Registration Statement and the Additional Registration Statement
are hereinafter referred to collectively as the “Registration
Statements” and individually as a “Registration
Statement”. “Registration Statement” without
reference to a time means the Registration Statement as of its
Effective Time. “Registration Statement” as of any time
means the initial registration statement and any additional
registration statement in the form then filed with the Commission,
including any amendment thereto and any prospectus deemed or
retroactively deemed to be a part thereof that has not been
superseded or modified. For purposes of the previous sentence,
information contained in a form of prospectus or prospectus
supplement that is deemed retroactively to be a part of the
Registration Statement pursuant to Rule 430A
(“Rule 430A”) under the Act shall be considered to
be included in the Registration Statement as of the time specified
in Rule 430A. “Statutory Prospectus” as of any
time means the prospectus included in the Registration Statement
immediately prior to that time, including any prospectus deemed to
be a part thereof that has not been superseded or modified. For
purposes of the preceding sentence, information
contained
2
in a form of
prospectus that is deemed retroactively to be a part of the
Registration Statement pursuant to Rule 430A shall be
considered to be included in the Statutory Prospectus as of the
actual time that form of prospectus is filed with the Commission
pursuant to Rule 424(b) (“Rule 424(b)”) under the
Act. “Prospectus” means the Statutory Prospectus that
discloses the public offering price and other final terms of the
Offered Securities and otherwise satisfies Section 10(a) of the
Act. “Issuer Free Writing Prospectus” means any
“issuer free writing prospectus,” as defined in
Rule 433 (“Rule 433”) under the Act, relating
to the Offered Securities in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to
Rule 433(g). “General Use Issuer Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is
intended for general distribution to prospective investors, as
evidenced by its being specified in Schedule C hereto.
“Limited Use Issuer Free Writing Prospectus” means any
Issuer Free Writing Prospectus that is not a General Use Issuer
Free Writing Prospectus. “Applicable Time” means
:00 [A./P.]M., New York time, on
the date of this Agreement.
(ii) If the
Effective Time of the Initial Registration Statement is prior to
the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
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, (B) on the
Effective Date of the Additional Registration Statement (if any),
each Registration Statement conformed, or will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading and (C) on the
date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the
Additional Registration Statement each conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information is that described as such
in Section 8(c) hereof.
(iii) (A) At
the time of filing the Registration Statement and (B) at the
date of this Agreement, the Company was not and is not an
“ineligible issuer,” as defined in Rule 405
(“ Rule 405 ”) under the Act, including
(1) the Company or any other subsidiary in the preceding three
years not having been convicted of a felony or misdemeanor or
having been made the subject of a judicial or administrative decree
or order as described in Rule 405 and (2) the Company in
the preceding three years not having been the subject of a
bankruptcy petition or insolvency or similar proceeding, not having
had a registration statement be the subject of a proceeding under
Section 8 of the Act and not being the subject of a proceeding
under Section 8A of the Act in connection with the offering of
the Offered Securities, all as described in Rule 405.
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(iv) As of the
Applicable Time, neither (A) the General Use Issuer Free
Writing Prospectus(es) issued at or prior to the Applicable Time,
the Statutory Prospectus, the documents attached to Schedule E
hereto all considered together (collectively, the “
General Disclosure Package ”), nor (B) any
individual Limited Use Issuer Free Writing Prospectus, when
considered together with the General Disclosure Package, included
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 preceding sentence does not apply to statements in
or omissions from any prospectus included in the Registration
Statement or any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representatives 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 Section 8(c) hereof.
(v) Each Issuer
Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the
Offered Securities or until any earlier date that the Company
notified or notifies the Representatives as described in the next
sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. If at any time
following issuance of an Issuer Free Writing Prospectus and prior
to the relevant Closing Date hereinafter mentioned there occurred
or occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the
information then contained in the Registration Statement or
included or would include an untrue statement of a material fact or
omitted or would omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, (A) the
Company has promptly notified or will promptly notify the
Representatives and (B) the Company has promptly amended or
will promptly amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement
or omission. The foregoing two sentences do not apply to statements
in or omissions from any Issuer Free Writing Prospectus in reliance
upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives 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 Section 8(c) hereof.
(vi) 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 General Disclosure Package; 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 be so qualified or in
good standing would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or other),
business, properties, results of operations or prospects of the
Company and its subsidiaries taken as a whole (“ Material
Adverse Effect ”).
(vii) Each
subsidiary of the Company has been duly incorporated, organized or
formed and is an existing corporation or other entity in good
standing under the laws of the jurisdiction of its incorporation,
organization or formation, with corporate, limited liability
company or limited partnership power and authority, as applicable,
to own its properties and conduct its business as described in the
General Disclosure Package; 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 be so
qualified or in good standing would not, individually or in the
aggregate, have a Material Adverse Effect; all of the issued and
outstanding capital stock or other equity interests of each
subsidiary of the Company have been duly authorized and validly
issued and are fully paid and nonassessable; and the capital stock
or other equity interests of each subsidiary are owned by the
Company, directly or through subsidiaries, free from liens,
encumbrances and defects,
4
except to the
extent such capital stock or equity interests are subject to a lien
or encumbrance in connection with the Amended and Restated Credit
Agreement, dated as of March 29, 2006 (the “ Credit
Agreement ”) by and among Complete Production Services,
Inc., as U.S. Borrower, Integrated Production Services Ltd., as
Canadian Borrower, Wells Fargo Bank, National Association, as U.S.
Administrative Agent, U.S. Issuing Lender and U.S. Swingline
Lender, HSBC Bank Canada, as Canadian Administrative Agent,
Canadian Issuing Lender and Canadian Swingline Lender, and the
Lenders party thereto, Wells Fargo Bank, National Association as
Sole Book Runner and Co-Lead Arranger, UBS Securities LLC, as
Co-Lead Arranger and Syndication Agent and Amegy Bank N.A. and
Comerica Bank, as Co-Documentation Agents.
(viii) The Offered
Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of
capital stock of the Company are, and, when the Offered Securities
to be sold by the Company have been delivered and paid for in
accordance with this Agreement, such Offered Securities will be,
validly issued, fully paid and nonassessable and conform in all
material respects to the description thereof contained in the
General Disclosure Package; and the stockholders of the Company
have no preemptive rights with respect to the
Securities.
(ix) Except as
disclosed in the General Disclosure Package, 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.
(x) Except as
disclosed in the General Disclosure Package, 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 a Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(xi) The
Securities have been approved for listing, subject to notice of
issuance, on The New York Stock Exchange (the “ NYSE
”).
(xii) 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, except such as have been obtained and made
under the Act (provided, however, a filing with the Commission
pursuant to Rule 424(b) may be made after the date hereof so long
as such filing is made within the time period specified in the
applicable provision of such rule) and such as may be required
under state securities laws.
(xiii) The
execution, delivery and performance of this Agreement, and the
consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions
of, or constitute a default under, (A) any statute, 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
(B) 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 (C) the charter
or by-laws or other organizational documents of the Company or any
such subsidiary, other than in the case of clause (B), such
breaches, violations or defaults that would not, individually or in
the aggregate, have a Material Adverse Effect.
(xiv) This
Agreement has been duly authorized, executed and delivered by the
Company.
5
(xv) Except as
disclosed in the General Disclosure Package, the Company and its
subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case
free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made
or to be made thereof by them; and except as disclosed in the
General Disclosure Package, the Company and its subsidiaries hold
any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the
use made or to be made thereof by them.
(xvi) The Company
and its subsidiaries maintain insurance covering their properties,
operations, personnel and businesses against such losses and risks
and in such amounts as is reasonably adequate for the conduct of
their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar
businesses in similar industries. Neither the Company nor any of
its subsidiaries has received notice from any insurer or agent of
such insurer that substantial capital improvements or other
material expenditures will have to be made in order to continue
such insurance, and all such insurance is outstanding and duly in
force on the date hereof and will be outstanding and duly in force
on each Closing Date hereinafter mentioned.
(xvii) 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 in all
material respects 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.
(xviii) No labor
dispute with the employees of the Company or any subsidiary exists
or, to the knowledge of the Company, is imminent that would have a
Material Adverse Effect.
(xix) The Company
and its subsidiaries own, possess, license 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,
except where the lack thereof would not, individually or in the
aggregate, have a Material Adverse Effect, 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 Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect.
(xx) Except as
disclosed in the General Disclosure Package, neither the Company
nor any of its subsidiaries is in violation of any statute, 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.
(xxi) Except as
disclosed in the General Disclosure Package, 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
6
material in the
context of the sale of the Offered Securities; and no such actions,
suits or proceedings are threatened or, to the Company’s
knowledge, contemplated.
(xxii) The
financial statements included in each Registration Statement and
the General Disclosure Package 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 (“ GAAP ”) applied on a consistent
basis; all non-GAAP financial information included in each
Registration Statement and the General Disclosure Package complies
in all material respects with the requirements of Item 10 of
Regulation S-K under the Act; the schedules included in each
Registration Statement and the General Disclosure Package present
fairly the information required to be stated therein; and the
assumptions used in preparing the pro forma financial statements
included in each Registration Statement and the General Disclosure
Package provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(xxiii) Except as
disclosed in the General Disclosure Package, since the date of the
latest audited financial statements included in the General
Disclosure Package 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, except as disclosed in or contemplated by the
General Disclosure Package, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(xxiv) The Company
and its subsidiaries maintain systems of internal accounting
controls sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with
management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain asset accountability; (C) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(xxv) The Company
is in compliance in all material respects with all applicable
provisions of the Sarbanes-Oxley Act of 2002, the Rules and
Regulations thereunder and the rules of the NYSE that are effective
and applicable to the Company.
(xxvi) The Company
has provided true, correct and complete copies of all documentation
pertaining to any extension of credit in the form of a personal
loan made, directly or indirectly, by the Company or any of its
subsidiaries to any director or “executive officer” as
defined by Rule 3b-7 under the Exchange Act of the Company or
to any family member or affiliate of any director or
“executive officer” of the Company.
(xxvii) None of
the Company, any of its subsidiaries or, to the knowledge of the
Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its
subsidiaries, has used any partnership, limited liability company
or corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from
partnership, limited liability company or corporate funds; violated
or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or made any unlawful bribe, rebate, payoff,
influence payment, kickback or other similar unlawful
payment.
7
(xxviii) The
Company is not and, after giving effect to the offering and sale of
the Offered Securities and the application of the proceeds
therefrom as described in the General Disclosure Package, will not
be an “investment company” as defined in the Investment
Company Act of 1940.
(xxix) The Company
and its subsidiaries have filed all material federal, state and
local income and franchise tax returns required to be filed through
the date hereof and have paid all taxes due thereon, and other than
tax deficiencies which the Company or any of its subsidiaries is
contesting in good faith and for which reasonable or adequate
reserves have been provided in accordance with GAAP, there is no
material tax deficiency that has been asserted against the Company
or any of its subsidiaries.
(xxx) Prior to the
date hereof, none of the Company, its subsidiaries or, to the
knowledge of the Company, any of its other affiliated entities has
taken any action which is designed to or which has constituted or
which might have been reasonably expected to cause or result in
unlawful stabilization or manipulation of the price of any security
of the Company in connection with the offering of the Offered
Securities.
(xxxi) The
market-related and customer-related data and estimates included in
the Registration Statement and the General Disclosure Package are
based on or derived from sources which the Company reasonably
believes to be reliable.
(xxxii) Grant
Thornton LLP, KPMG LLP, Darnall, Sikes, Gardes & Frederick and
BKD, LLP who have certified certain financial statements of the
Company and its subsidiaries are each an independent registered
public accounting firm as contemplated by the Act and the Rules and
Regulations thereunder.
(xxxiii) As of the
date of this Agreement, SCF-IV, L.P. (“SCF”) owns
approximately % of
the issued and outstanding Securities of the Company.
(xxxiv) The
Registration Statement, the Prospectus, any preliminary prospectus
and any Issuer Free Writing Prospectus comply, and any further
amendments or supplements thereto will comply, in all material
respects, with any applicable laws or regulations of foreign
jurisdictions in which the Prospectus, any preliminary prospectus
or any Issuer Free Writing Prospectus, as amended or supplemented,
if applicable, are distributed at the request of the Company in
connection with the Directed Share Program, and no authorization,
approval, consent, license, order, registration or qualification of
or with any government, governmental instrumentality or court,
other than such as have been obtained, is necessary under the
securities law and regulations of such foreign jurisdictions in
which the Directed Shares are offered outside the United
States.
(xxxv) The Company
has not offered, or caused the Underwriters to offer, any Offered
Securities to any person pursuant to the Directed Share Program
with the specific intent to unlawfully influence (A) a
customer or supplier of the Company to alter the customer’s
or supplier’s level or type of business with the Company or
(B) a trade journalist or publication to write or publish
favorable information about the Company or its products.
(b) Each
Selling Stockholder severally and not jointly represents and
warrants to, and agrees with, the several Underwriters
that:
(i) Such Selling
Stockholder has and on each Closing Date hereinafter mentioned will
have (A) valid and unencumbered title to the Offered
Securities to be delivered by such Selling Stockholder on such
Closing Date, except for restrictions set forth in the Amended and
Restated Stockholders’ Agreement dated as of
September 12, 2005 by and among the Company and the
stockholders of the Company listed therein; provided, however, that
any such restrictions shall not be
8
applicable upon
and in connection with the completion of the public offer and sale
of the Firm Securities and (B) full right, power and authority
to enter into this Agreement and to sell, assign, transfer and
deliver the Offered Securities to be delivered by such 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
such Selling Stockholder on such Closing Date other than any
encumbrances created by an Underwriter.
(ii) If the
Effective Time of the Initial Registration Statement is prior to
the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
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; (B) on the
Effective Date of the Additional Registration Statement (if any),
each Registration Statement conformed, or will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading; and (C) on the
date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the
Additional Registration Statement each conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, on the Effective
Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading. The two preceding sentences
apply only to the extent that any statements in or omissions from a
Registration Statement or the Prospectus are based on written
information furnished to the Company by such Selling Stockholder
specifically for use therein.
(iii) Except as
disclosed in the General Disclosure Package, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder or any Underwriter for a brokerage
commission, finder’s fee or other like payment in connection
with this offering.
(iv) 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 such Selling Stockholder for the consummation of the
transactions contemplated by this Agreement in connection with the
sale of the Offered Securities sold by such Selling Stockholder,
except such as have been obtained and made under the Act and such
as may be required under state securities laws.
(v) The execution,
delivery and performance of this Agreement and the consummation of
the transactions herein contemplated will not result in a breach or
violation by the Selling Stockholder of any of the terms and
provisions of, or constitute a default by the Selling Stockholder
under, (A) any statute, rule, regulation or order of any
governmental agency or body or any court having jurisdiction over
such Selling Stockholder or any of the properties of such Selling
Stockholder or (B) any agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder
is bound or to which any of the properties of such Selling
Stockholder is subject, or (C) the charter or by-laws or other
organizational documents of such Selling Stockholder which is
a
9
corporation or
other entity, other than in the case of clause (B), such breaches,
violations or defaults that would not, individually or in the
aggregate, materially adversely affect the consummation of the
transactions contemplated by this Agreement in connection with the
sale of the Offered Securities sold by such Selling
Stockholder.
(vi) This
Agreement has been duly authorized, executed and delivered on
behalf of such Selling Stockholder.
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 Company and each Selling Stockholder agree, severally
and not jointly, to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company and
each Selling Stockholder, at a purchase price of $
per share, that number of
Firm Securities (rounded up or down, as determined by the
Representatives in their discretion, in order to avoid fractional
shares) obtained by
multiplying Firm
Securities in the case of the Company and the number of Firm
Securities set forth opposite the name of such Selling Stockholder
in Schedule A hereto, in the case of a Selling Stockholder, in
each case by a fraction the numerator of which is the number of
Firm Securities set forth opposite the name of such Underwriter in
Schedule B hereto and the denominator of which is the total
number of Firm Securities.
Certificates in
negotiable form for the Offered Securities to be sold by the
Selling Stockholders hereunder have been placed in custody, for
delivery under this Agreement, under Custody Agreements made with
Wells Fargo Bank, N.A., as custodian (“ Custodian
”). Each Selling Stockholder agrees that the shares
represented by the certificates held in custody for the Selling
Stockholders under such Custody Agreements are subject to the
interests of the Underwriters hereunder, that the arrangements made
by the Selling Stockholders for such custody are (to the extent set
forth in the Custody Agreement) irrevocable, and that the
obligations of the Selling Stockholders hereunder shall not be
terminated by operation of law, whether by the death of any
individual Selling Stockholder or the occurrence of any other
event, or in the case of a trust, by the death of any trustee or
trustees or the termination of such trust. If any individual
Selling Stockholder or any such trustee or trustees should die, or
if any other such event should occur, or if any of such trusts
should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be
delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death or other event or
termination had not occurred, regardless of whether or not the
Custodian shall have received notice of such death or other event
or termination.
The Company and
the Custodian 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 the Representatives drawn to the order of the
Company in the case of the Firm Securities to be issued and sold by
the Company and to the order of the Custodian in the case of the
Firm Securities to be sold by the Selling Stockholders, at the
office of Vinson & Elkins L.L.P., First City Tower, 1001 Fannin
Street, Houston, Texas 77002, at 9:00 A.M., New York time,
on , 2006, or at such other time
not later than seven full business days thereafter as the
Representatives and the Company determine, such time being herein
referred to as the “ First Closing Date ”. For
purposes of Rule 15c6-1 under the Securities Exchange Act of
1934, as amended (“ 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 the Representatives request and will be
made available for inspection by the Representatives at the above
office of Vinson & Elkins L.L.P. at least 24 hours prior to the
First Closing Date.
In addition, upon
written notice from the Representatives given to the Company and
the Selling Stockholders 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 share to
10
be paid for the
Firm Securities. The Selling Stockholders agree, severally and not
jointly, to sell to the Underwriters the respective numbers of
Optional Securities obtained by multiplying the number of Optional
Securities specified in such notice by a fraction the numerator of
which is the number of shares set forth opposite the names of such
Selling Stockholders in Schedule A hereto under the caption
“Number of Optional Securities to be Sold” and the
denominator of which is the total number of Optional Securities
(subject to adjustment by the Representatives to eliminate
fractional shares). Such Optional Securities shall be purchased
from each Selling Stockholder for the account of each Underwriter
in the same proportion as the number of Firm Securities set forth
opposite such Underwriter’s name bears to the total number of
Firm Securities (subject to adjustment by the Representatives to
eliminate fractional shares) 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 the Representatives to the Company and the Selling
Stockholders.
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 the
Representatives but shall be not later than five
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