Exhibit 1.1
8,000,000
HERCULES OFFSHORE,
INC.
COMMON STOCK
UNDERWRITING
AGREEMENT
April __, 2006
C REDIT S UISSE S ECURITIES (USA) LLC
C ITIGROUP G LOBAL M ARKETS I NC
.
As Representatives of
the Several Underwriters,
c/o Credit
Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory . Hercules
Offshore, Inc., a Delaware corporation (“ Company
”), proposes to issue and sell 1,600,000 shares of its common
stock, par value $0.01 per share (“ Securities
”). The stockholders listed in Schedule A hereto (“
Selling Stockholders ”) propose severally to sell an
aggregate of 6,400,000 outstanding shares of the Securities (such
shares of Securities to be sold by the Company and the Selling
Stockholders being hereinafter referred to as the “ Firm
Securities ”). The Selling Stockholders also propose to
sell to the Underwriters (as defined herein), at the option of the
Underwriters, an aggregate of not more than 1,200,000 additional
outstanding shares of the 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 ”.
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:
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(i)
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A registration statement (No.
333-132728) (“ Initial Registration Statement ”)
relating to the Offered Securities, including a form of prospectus,
has been filed with the Securities and Exchange Commission (“
Commission ”) and an additional registration statement
(“ Additional Registration Statement ”) relating
to the Offered Securities may have been or may be filed with the
Commission pursuant to Rule 462(b) (“ Rule 462(b)
”) under the Securities Act of 1933 (“ Act
”). “ Initial Registration Statement ” as
of any time means the initial registration statement, in the form
then filed with the Commission, including all material then
incorporated by reference therein, all information contained in the
additional registration statement (if any) and then deemed to be a
part of the initial registration statement pursuant to the General
Instructions of the Form on which it is filed and all information
(if any) included in a prospectus then deemed to be a part of the
initial registration statement pursuant to Rule 430C (“
Rule 430C ”) under the Act or retroactively
deemed to be a part of the initial registration statement pursuant
to Rule 430A(b) (“ Rule 430A(b) ”) under the Act
and that in any case has not then been superseded or modified.
“ Additional Registration Statement ” as of any
time means the additional registration statement, in the form then
filed with the Commission, including the contents of the Initial
Registration Statement incorporated by reference therein and
including all information (if any) included in a prospectus then
deemed to be a part of the additional registration statement
pursuant to Rule 430C or retroactively deemed to be a part
of
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the additional registration
statement pursuant to Rule 430A(b) and that in any case has not
then been superseded or modified. The Initial Registration
Statement and the Additional Registration Statement are herein
referred to collectively as the “ Registration
Statements ” and individually as a “
Registration Statement ”. “ Registration
Statement ” as of any time means the Initial Registration
Statement and any Additional Registration Statement as of such
time. For purposes of the foregoing definitions, information
contained in a form of prospectus that is deemed retroactively to
be a part of a Registration Statement pursuant to Rule 430A shall
be considered to be included in such Registration Statement as of
the time specified in Rule 430A. As of the time of execution and
delivery of this Agreement, the Initial Registration Statement has
been declared effective under the Act and is not proposed to be
amended. Any Additional Registration Statement has or will become
effective upon filing with the Commission pursuant to Rule 462(b)
and is not proposed to be amended. The Offered Securities all have
been or will be duly registered under the Act pursuant to the
Initial Registration Statement and, if applicable, the Additional
Registration Statement. 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 the date and time as of which such Registration Statement was
declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) (“ Rule 462(c) ”)
under the Act. 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. A “ Registration Statement ”
without reference to a time means such Registration Statement as of
its Effective Time. “ Statutory Prospectus ” as
of any time means the prospectus included in a Registration
Statement immediately prior to that time, including any document
incorporated by reference therein and any information in a
prospectus deemed to be a part thereof pursuant to Rule 430A or
430C that has not been superseded or modified. For purposes of the
preceding sentence, information contained in a form of prospectus
that is deemed retroactively to be a part of a 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, 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 a schedule to this
Agreement. “ 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 pm (Eastern time) on the
date of this Agreement.
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(ii)
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(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
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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. The preceding sentence does 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(b)
hereof.
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(iii)
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(A) At the time
of initial filing of the Initial 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,
including (x) 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
(“Rule 405”) under the Act and (y) 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)
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As of the
Applicable Time, neither (A) the General Use Issuer Free
Writing Prospectus(es) issued at or prior to the Applicable Time,
the preliminary prospectus, dated April 3, 2006 (which is the
most recent Statutory Prospectus distributed to investors
generally) and the documents attached to this Agreement as Schedule
C 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(b)
hereof.
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(v)
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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 Credit Suisse Securities (USA) LLC (“ Credit
Suisse ”) and Citigroup Global Markets Inc. (“
Citigroup ”) 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 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 Credit Suisse and
Citigroup and (B) the Company has promptly amended or will
promptly amend or supplement such Issuer Free Writing Prospectus to
eliminate or correct
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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(b)
hereof.
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(vi)
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The Company has
been duly incorporated and is validly existing 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 General Disclosure Package; and the
Company is duly qualified to do business as a foreign 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 on the condition (financial or other),
business, properties, results of operations or prospects of the
Company and its subsidiaries taken as a whole (a “
Material Adverse Effect ”);
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(vii)
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Each subsidiary
of the Company has been duly organized and is an existing limited
liability company in good standing under the laws of the
jurisdiction of its organization, with power and authority (limited
liability company and other) to own its properties and conduct its
business as described in the General Disclosure Package; and each
subsidiary of the Company is duly qualified or has made the
necessary filing requirements and received the necessary approvals,
as the case may be, to do business as a foreign limited liability
company 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 equity interests of each subsidiary of the Company have
been duly authorized and validly issued in accordance with the
organizational documents of each company and are fully paid (to the
extent required under the applicable company’s organizational
documents and limited liability company agreement) and
nonassessable (except as such nonassessability may be affected by
Section 18-607 of the Delaware Limited Liability Company Act
(the “ Delaware LLC Act ”) and any similar
foreign law); and the equity interests of each subsidiary owned by
the Company, directly or through subsidiaries, are owned free from
liens, encumbrances and defects, except to the extent such
membership interests are subject to a lien or encumbrance in
connection with the Credit Agreement dated as of June 30,
2005, as amended, (the “ Credit Agreement ”)
among the Company, as borrower, Comerica Bank, as administrative
agent, Citicorp North America, Inc., as syndication agent, Credit
Suisse, Cayman Islands Branch, as documentation agent, and the
lenders party thereto.
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(viii)
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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 on the First Closing Date, such
Offered Securities will be, validly issued, fully paid and
nonassessable and conform in all material respects to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect
to the Securities.
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(ix)
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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.
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(x)
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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 that have not been
validly waived or satisfied prior to the date hereof.
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(xi)
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The Securities
have been approved for listing subject to notice of issuance on the
NASDAQ National Market.
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(xii)
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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, except (1) 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
(2) such as may be required under state securities
laws.
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(xiii)
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The execution,
delivery and performance of this Agreement by the Company, 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, 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, other
than such breaches, violations or defaults that would not,
individually or in the aggregate, have a Material Adverse
Effect.
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(xiv)
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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, (1) 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 (2) the
organizational documents of the Company or any such subsidiary,
other than in the case of clause (1), such breaches, violations or
defaults that would not, individually or in the aggregate, have a
Material Adverse Effect.
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(xv)
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This Agreement
has been duly authorized, executed and delivered by the
Company.
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(xvi)
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Except as
disclosed in the General Disclosure Package, the Company and its
subsidiaries (1) 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
affect the value thereof or interfere with the use made or to be
made thereof by them and, (2) hold any leased real or personal
property under valid and enforceable leases with no exceptions that
would interfere with the use made or to be made thereof by them,
except, in each case, for such liens, encumbrances, defects or
exceptions that would not have a Material Adverse
Effect.
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(xvii)
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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
where the lack thereof 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.
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(xviii)
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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.
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(xix)
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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.
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(xx)
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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 Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a
claim.
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(xxi)
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Except as
disclosed in the General Disclosure Package, there are no pending
actions, suits or proceedings against or, to the Company’s
knowledge, 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 no such
actions, suits or proceedings are threatened or, to the
Company’s knowledge, contemplated.
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(xxii)
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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; and
the schedules included in each Registration Statement present
fairly the information required to be stated therein.
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(xxiii)
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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
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
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(xxiv)
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The Company and its subsidiaries
maintain systems of internal accounting controls sufficient to
provide reasonable assurance 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 GAAP
and to maintain asset
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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.
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(xxv)
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The Company is
not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an “investment
company” as defined in the Investment Company Act of
1940.
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(xxvi)
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The Company is
subject to the reporting requirements of either Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 and files
reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) system.
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(xxvii)
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The Company
does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in
Exhibit 21.1 to the Company’s Annual Report on Form 10-K for
the most recent fiscal year. Hercules Liftboats Company Nigeria,
Limited, a Nigerian company, is not a significant subsidiary within
the meaning of Rule 1-02(w) of Regulation S-X.
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(b) Each Selling Stockholder
severally represents and warrants to, and agrees with, the several
Underwriters that:
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(i)
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Such Selling
Stockholder will have on each Closing Date hereinafter mentioned
valid and unencumbered title to the Offered Securities to be
delivered by such 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 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.
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(ii)
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(A) On the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all 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
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
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. Each
Selling Stockholder makes the representations contained in the two
preceding sentences 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.
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(iii)
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As of the
Applicable Time, neither (A) General Disclosure Package, nor
(ii) 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. Each Selling Stockholder makes the
representations contained in the preceding sentence only to the
extent that any statements in or omissions from a Registration
Statement or any Issuer Free Writing Prospectus are based on
written information furnished to the Company by such Selling
Stockholder specifically for use therein.
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(iv)
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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.
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(v)
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Such Selling
Stockholder has no reason to believe that the representations and
warranties of the Company contained in this Section 2 are not
true and correct, is familiar with the Registration Statement and
has no knowledge of any material fact, condition or information not
disclosed in the General Disclosure Package which has adversely
affected or may adversely affect the business of the Company or any
of its subsidiaries; and the sale of Securities by such Selling
Stockholder pursuant hereto is not prompted by any information
concerning the Company or any of its subsidiaries which is not set
forth in the General Disclosure Package.
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(vi)
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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 and 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.
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(vii)
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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, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over
any Selling Stockholder or any of their properties or any agreement
or instrument to which any Selling Stockholder is a party or by
which any Selling Stockholder is bound or to which any of the
properties of any Selling Stockholder is subject, or the charter or
by-laws of any Selling Stockholder which is a
corporation.
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(viii)
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Such Selling
Stockholder is a “U.S. Citizen,” as such term is
defined in the form of Certificate of Incorporation of the Company
filed as an exhibit to the Registration Statement, other than
Greenhill Capital Partners (Cayman), L.P. (“ Greenhill
Cayman ”), Mr. Erland P. Bassoe and
Mr. Sebastian Brooke.
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(ix)
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This Agreement
has been duly authorized, executed and delivered by each Selling
Stockholder.
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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 Credit Suisse and Citigroup in its discretion, in
order to avoid fractional shares) obtained by multiplying 1,600,000
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
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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.
The Company and the Selling
Stockholders will deliver the Firm Securities to the
Representatives for the accounts of the several Underwriters in a
form reasonably acceptable to the Representatives, 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 American Stock Transfer & Trust
Company, as custodian for the Selling Stockholders, in the case of
the Firm Securities to be sold by the Selling Stockholders, at the
office of Baker Botts L.L.P., 910 Louisiana Street, One Shell
Plaza, Houston, Texas 77002, at 9:00 A.M., Houston, Texas
time, on , 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 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. Any 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 Baker Botts 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
Security to be paid for the Firm Securities. Each Selling
Stockholder agrees, 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
Optional Securities set forth opposite the names of such Selling
Stockholder 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 so set forth opposite
the names of all Selling Stockholders (subject to adjustment by
Credit Suisse and Citigroup 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 Credit Suisse and Citigroup 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 full business days
after written notice of election to purchase Optional Securities is
given. The Selling Stockholders 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 therefor 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 American Stock Transfer & Trust Company, as
custodian for the Selling Stockholders, at the above office of
Baker Botts L.L.P. Any 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 the
Representatives request upon reasonable notice prior to such
Optional Closing Date and will be made available for inspection by
the Representatives at the above office of Baker Botts L.L.P. at a
reasonable time in advance of such Optional Closing
Date.
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.
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5. Certain Agreements of the
Company and the Selling Stockholders . The Company agrees with
the several Underwriters and the Selling Stockholders
that:
(a) The Company will file the
Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by the
Representatives (which shall not be unreasonably withheld),
subparagraph (4)) of Rule 424(b) not later than the
earlier of (A) the second business day following the execution
and delivery of this Agreement or (B) the fifteenth business
day after the Effective Date of the Initial Registration Statement.
The Company will advise the Representatives promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of the
Initial Registration Statement is prior to the execution and
delivery of this Agreement and an additional registration statement
is necessary to register a portion of the Offered Securities under
the Act but the Effective Time thereof has not occurred as of such
execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 P.M., New York time, on the
date of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to
by the Representatives.
(b) The Company will advise the
Representatives promptly of any proposal to amend or supplement at
any time the Initial Registration Statement, any Additional
Registration Statement or any Statutory Prospectus and will not
effect such amendment or supplementation without the
Representatives’ consent; and the Company will also advise
the Representatives promptly of the effectiveness of any Additional
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or any Statutory
Prospectus and of the institution by the Commission of any stop
order proceedings in respect of a Registration Statement 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.
(c) If, at any time when a
prospectus relating to the Offered Securities is (or but for the
exemption in Rule 172 would be) 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 the Representatives of such event and will promptly prepare
and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the
Representatives’ 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.
(d) As soon as practicable, but not
later than the Availability Date (as defined below), the Company
will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after
the Effective Date of the Initial Registration Statement (or, if
later, the Effective Date of the Additional Registration Statement)
which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, “ Availability
Date ” means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the
last quarter of the Company’s fiscal year, “
Availability Date ” means the 90th day after the end
of such fourth fiscal quarter.
(e) The Company will furnish to the
Representatives copies of each Registration Statement (one of which
will be signed and will include all exhibits), each related
preliminary prospectus, 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 the Representatives reasonably request. The
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the second business day following the later of the
execution and delivery of this Agreement or the Effective Time of
the Initial Registration Statement. All other such documents shall
be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the Underwriters all such
documents.
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(f) The Company will arrange for the
qualification of the Offered Securities for sale under the laws of
such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution of the Offered Securities; provided that, in
connection therewith, the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(g) During the period of five years
hereafter, the Company will furnish or make available 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 or make available to the
Representatives 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.
(h) For the period spec
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