EXHIBIT 1.1
DIAMOND OFFSHORE DRILLING, INC.
Debt Securities
UNDERWRITING AGREEMENT
1. Introduction. Diamond Offshore Drillling, Inc., a Delaware corporation
(the "Company"), proposes to issue and sell from time to time certain of its
debt securities registered under the registration statement referred to in
Section 2(a) ("Registered Securities"). The Registered Securities will be issued
under an indenture (the "Indenture"), between the Company and
____________________, as Trustee, in one or more series, which series may vary
as to interest rates, maturities, redemption provisions, selling prices and
other terms, with all such terms for any particular series of the Registered
Securities being determined at the time of sale. Particular series of the
Registered Securities will be sold pursuant to a Terms Agreement referred to in
Section 3, for resale in accordance with the terms of offering determined at the
time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Securities". The firm or firms which agree to purchase the
Securities are hereinafter referred to as the "Underwriters" of such Securities,
and the representative or representatives of the Underwriters, if any, specified
in a Terms Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives", as
used in this Agreement (other than in Sections 2(b), 5(b) and 6 and the second
sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) A registration statement, including a prospectus, relating to
the Registered Securities has been filed with the Securities
and Exchange Commission ("Commission") on January 17, 1997 and
has become effective. Such registration statement, as amended
at the time of any Terms Agreement referred to in Section 3,
is hereinafter referred to as the "Registration Statement".
Such prospectus, as supplemented as contemplated by Section 3
to reflect the terms of the Securities and the terms of
offering thereof, including all material incorporated by
reference therein, is hereinafter referred to as the
"Prospectus".
(b) On the effective date of the Registration Statement relating
to the Registered Securities and of each post-effective
amendment thereto, such Registration Statement conformed in
all material respects to the requirements of the Securities
Act of 1933, as amended ("Act"), the Trust Indenture Act of
1939, as amended ("Trust Indenture Act") and the
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rules and regulations of the Commission ("Rules and
Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading, and on the date of each Terms Agreement
referred to in Section 3, the Registration Statement and the
Prospectus will conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules
and Regulations, and neither of such documents will 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, except that the
foregoing does not apply to statements in or omissions from
any of such documents based upon written information furnished
to the Company by any Underwriter through the Representatives,
if any, specifically for use therein.
3. Purchase and Offering of Securities. The obligation of the underwriters
to purchase the Securities will be evidenced by an exchange of telegraphic or
other written communications ("Terms Agreement") at the time the Company
determines to sell the Securities. The Terms Agreement will generally be in the
form attached hereto as Annex I and will incorporate by reference the provisions
of this Agreement, except as otherwise provided therein, and will specify the
firm or firms which will be Underwriters, the names of any Representatives, the
principal amount to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters and the terms of the Securities not already specified
in the Indenture, including, but not limited to, interest rate, maturity, any
redemption provisions and any sinking fund requirements and whether any of the
Securities may be sold to institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The Terms Agreement will also specify the time and
date of delivery and payment (such time and date, or such other time not later
than seven full business days thereafter as the Representatives and the Company
agree as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "Closing Date"), the place of delivery and payment
and any details of the terms of offering that should be reflected in the
prospectus supplement relating to the offering of the Securities. The
obligations of the Underwriters to purchase the Securities will be several and
not joint. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Prospectus. The Securities delivered to
the Underwriters on the Closing Date will be in definitive fully registered
form, in such denominations and registered in such names as the Underwriters may
request.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex II attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount of Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securities"). The Underwriters will not have any
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responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters and the aggregate principal amount of Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount of Securities set forth opposite each Underwriter's name in
such Terms Agreement, except to the extent that the Representatives determine
that such reduction shall be otherwise than pro rata and so advise the Company.
The Company will advise the Representatives not later than the business day
prior to the Closing Date of the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the several
Underwriters that it will furnish to _________________________, special counsel
for the Underwriters (or any other counsel named as counsel for the Underwriters
in any Terms Agreement), one signed copy of the Registration Statement relating
to the Registered Securities, including all exhibits, in the form it became
effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Representatives promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, 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 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 promptly
will prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as are reasonably requested.
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(e) The Company will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(f) During the period of 5 years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report or
definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act of 1934, as amended, or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as the Representatives may reasonably request.
(g) The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse the Underwriters
for any expenses (including fees and disbursements of counsel) incurred by
them in connection with qualification of the Registered Securities for
sale and determination of their eligibility for investment under the laws
of such jurisdictions as the Representatives may designate and the
printing of memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Securities and for expenses incurred
in distributing the Prospectus, any preliminary prospectuses and any
preliminary prospectus supplements to Underwriters.
(h) For a period beginning at the time of execution of the Terms
Agreement and ending 10 days after the Closing Date, without the prior
consent of the Representatives, the Company will not offer, sell, contract
to sell or otherwise dispose of any United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Securities will be subject
to the accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
(b) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or
properties of the Company or its subsidiaries which, in the judgment of a
majority in interest of the Underwriters, including any Representatives,
materially impairs the investment quality of the Securities; (ii) any
downgrading in the rating of the Company's debt securities by Xxxxx'x
Investors
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Service, Inc., or Standard & Poor's Corporation; (iii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any banking moratorium
declared by Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters, including any Representatives, the effect of
any such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Securities.
(c) The Representatives shall have received an opinion, dated the
Closing Date, of the Vice President and General Counsel of the Company or
other counsel satisfactory to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which it is required to
be so qualified, except where the failure to be so qualified would
not involve a material risk to the business, operations, or
financial condition or results of the Company, taken as a whole;
(ii) the Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act; the Securities have been duly authorized; the
Securities other than any Contract Securities have been duly
executed, authenticated, issued and delivered; the Indenture and the
Securities other than any Contract Securities constitute, and any
Contract Securities, when executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant
to Delayed Delivery Contracts, will constitute, valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equitable principles;
and the Securities other than any Contract Securities conform, and
any Contract Securities, when so issued and delivered and sold, will
conform, to the description thereof contained in the Prospectus;
(iii) no consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement),
except such as have been obtained and made under the Act and the
Trust Indenture Act and such as may be required under state
securities laws in connection with the issuance or sale of the
Securities by the Company;
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(iv) the execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof 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 the Company or any of its properties or any
agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the properties of the
Company is subject, or the certificate of incorporation or by-laws
of the Company, and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by the
Terms Agreement (including the provisions of this Agreement);
(v) the Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement or
of any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under
the Act;
(vi) based on the information gained in the course, in such
counsel's role as General Counsel, of such counsel's participation
in certain meetings and making of certain inquiries and
investigations in connection with the preparation of the
Registration Statement and Prospectus, the Registration Statement
relating to the Registered Securities and each post-effective
amendment thereto, as of their respective effective dates, the
Registration Statement and the Prospectus, as of the date the
Prospectus was filed with the Commission and as of the Closing Date,
and any amendment or supplement thereto, as of its date, appeared on
their face to be appropriately responsive in all material respects
to the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations; nothing has come to such counsel's attention
in the course of performing such activities that caused such counsel
to believe that the Registration Statement, as of its effective
date, the Registration Statement or the Prospectus, as of the date
the Prospectus was filed with the Commission and as of the Closing
Date, or any such amendment or supplement, as of its date, contains
or contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, provided, however,
that such counsel may state that in rendering the foregoing opinions
in this clause (vi), such counsel does not assume responsibility for
the accuracy or completeness of statements made in the Registration
Statement and Prospectus; the descriptions in the Registration
Statement and the Prospectus of statutes, legal and governmental
proceedings and contracts and other documents fairly present the
information required to be shown; and such counsel does not know of
any legal or governmental proceedings required to be described in
the Prospectus which are not described as required or of any
contracts or documents of a character required to be described in
the Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement which are not
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described and filed as required; it being understood that such
counsel need express no opinion as to the financial statements or
other financial data contained in the Registration Statement or the
Prospectus; and
(vii) the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
In rendering such opinion, such Vice President and General Counsel or other
counsel may rely as to the incorporation of the Company, the authorization,
execution and delivery of the Terms Agreement and all other matters governed by
Delaware law upon an opinion of counsel satisfactory to the Representatives, a
copy of which shall be delivered concurrently with the opinion of such General
Counsel or other counsel.
(d) The Representatives shall have received from
______________________, special counsel for the Underwriters (or any other
counsel named as counsel for the Underwriters in any Terms Agreement),
such opinion or opinions, dated the Closing Date, with respect to the
incorporation of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters. In rendering such opinion, ______________________
(or such other counsel for the Underwriters named in any Terms Agreement)
may rely as to the incorporation of the Company, the authorization,
execution and delivery of the Terms Agreement and all other matters
governed by Delaware law upon the opinion of such other counsel as
referred to above.
(e) The Representatives shall have received a certificate, dated the
Closing Date, of the President, any Senior Vice President, the Treasurer
or any Vice-President and a principal financial or accounting officer of
the Company in which such officers, to the best of their knowledge after
reasonable investigation, state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company has
complied with all agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date, that
no stop order suspending the effectiveness of the Registration Statement
or of any part thereof has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the Prospectus
or as described in such certificate.
(f) The Representatives shall have received a letter, dated the
Closing Date, of Deloitte & Touche LLP, or any successor firm, confirming
that they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder, and stating
in effect that:
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(i) in their opinion, the financial statements and
schedules examined by them and included in the Prospectus contained
in the Registration Statement relating to the Registered Securities,
as amended to the date of such letter, comply in form in all
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) on the basis of a reading of the latest available
interim financial statements of the Company, inquiries of officials
of the Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited financial statements, if any, included
in the Prospectus do not comply in form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations or are not
in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included in the Prospectus;
(B) the unaudited capsule information, if any, included
in the Prospectus does not agree with the amounts set forth in
the unaudited consolidated financial statements from which it
was derived or was not determined on a basis substantially
consistent with that of the audited financial statements
included in the Prospectus;
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than five days prior to the Closing Date, there was
any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and consolidated
subsidiaries or, at the date of the latest available balance
sheet read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(D) for the period from the date of the latest income
statement included in the Prospectus to the closing date of
the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period of the previous year, in consolidated net sales,
operating income, income before extraordinary items or net
income;
except in all cases set forth in clauses (C) and (D) above for changes or
decreases which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information included in the Prospectus (in each case to the extent
that such dollar amounts, percentages and other financial
information are contained in the general accounting records
Exhibit 1.1 - 8
of the Company and its subsidiaries subject to the internal controls
of the Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter. All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed
included in the Prospectus.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives, if any,
specifically for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or
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defending any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under subsection (a)
or (b) above. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject
of this subsection (d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities
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underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Securities under the Terms Agreement and the
aggregate principal amount of the Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Securities, the Representatives may make arrangements
satisfactory to the Company for the purchase of such Securities by other
persons, including any of the Underwriters, but if no such arrangements are made
by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made within
36 hours after such default, such Terms Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Company, except as
provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts of the Securities
set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section will not
apply if the Terms Agreement specifies that such obligations and agreements will
not apply.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the
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results thereof, made by or on behalf of any Underwriter, the Company or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Securities. If the
Terms Agreement is terminated pursuant to Section 7 or if for any reason the
purchase of the Securities by the Underwriters under the Terms Agreement is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Securities by the Underwriters is not consummated for any
reason other than because of the termination of the Terms Agreement pursuant to
Section 7 or the occurrence of any event specified in Section 5(b), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
them at their addresses furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 00000 Xxxx Xxxxxxx, Xxxxxxx, Xxxxx 00000,
Attention: Treasurer.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the Company and such Underwriters as are identified in the Terms Agreement
and their respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right or
obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Exhibit 1.1 - 12
ANNEX I
DIAMOND OFFSHORE DRILLING, INC.
("Company")
DEBT SECURITIES
TERMS AGREEMENT
_____, 199_
Diamond Offshore Drilling, Inc.
00000 Xxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and for
their respective accounts, we--We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 333- ) (the "Underwriting
Agreement"), the following securities (the "Securities") on the following terms:
TITLE: [ ]% [Floating Rate]--Notes--Debentures--Bonds--
Due______________.
PRINCIPAL AMOUNT: $
INTEREST: [ ]% per annum, from __________, 19__, payable semiannually on
___________and commencing ___________, 19__, to holders of record on the
preceding or ___, as the case may be.
MATURITY:
OPTIONAL REDEMPTION:
SINKING FUND:
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be __________,
19__. Underwriter['s][s'] fee is [ ]% of the principal amount of the Contract
Securities.]
Exhibit 1.1 - I - 1
PURCHASE PRICE: [ ]% of principal amount plus accrued interest
[, if any,] from___________, 19__.
EXPECTED REOFFERING PRICE: [ ]% of principal amount, subject to change
by the undersigned.
CLOSING: _______a.m. on___________, 19__, at the offices of [____________
___________________________________________________________________], in same
day funds.
NAME[S] AND ADDRESSE[S] OF REPRESENTATIVE[S]:
The respective principal amounts of the Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert--It is understood that we may, with your consent,
amend this offer to add additional Underwriters and reduce the aggregate
principal amount to be purchased by the Underwriters listed in Schedule A hereto
by the aggregate principal amount to be purchased by such additional
Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein by
reference. [If appropriate, insert--, except that the obligations and
agreements set forth in Section 7 ("Default of Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters to
purchase the above Securities] [If appropriate, insert--, except that the
provisions of Section _____ are amended as follows: ].
The Securities will be made available for checking at the offices of
______________________________________ at least 24 hours prior to the Closing
Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us by mail or hand
delivery.]
[Please signify your acceptance of the foregoing by return wire not later
than _____ p.m. today.]
Very truly yours,
[Insert name(s) of Representatives or Underwriters]
[On behalf of--themselves--itself--and as
Representative[s] of the Several] [As]
[Underwriter[s]]
[By [lead manager]]
By___________________________________
[Insert Title]
Exhibit 1.1 - I - 2
If the Securities are denominated in a currency other than United States
dollars, make appropriate modifications to provisions of Terms Agreement (e.g.,
type of funds specified under "Closing") and consider including in the Terms
Agreement such changes and additions to the Underwriting Agreement as may be
appropriate in the circumstances, e.g., expanding Section 4(h) to cover debt
securities denominated in the currency in which the Securities are denominated,
expanding Section 5(c)(iv) to cover a banking moratorium declared by authorities
in the country of such currency, expanding Section 5(c)(v) to cover a change or
prospective change in, or governmental action affecting, exchange controls
applicable to such currency, and modifying Section 5(d) to permit a statement to
the effect that enforcement of the Indenture and the Securities is subject to
provisions of law which may require that a judgment for money damages rendered
by a court in the United States be expressed only in United States dollars and
appropriate exceptions as to any provisions requiring payment of additional
amounts. Also consider requiring an opinion of counsel for the Company
confirming information as to United States tax matters in the Prospectus and an
opinion of foreign counsel for the Company regarding such matters as foreign
consents, approvals, authorizations, licenses, waivers, withholding taxes,
transfer or stamp taxes and any information as to foreign laws in the
Prospectus.
Exhibit 1.1 - I - 3
SCHEDULE A
Underwriter Principal Amount
----------- ----------------
$
---------------
Total .........................................................$
To: [Insert name(s) of Representatives or Underwriters]
As [Representative[s] of the Several] Underwriter[s],
[c/o [name and address of lead manager]
We accept the offer contained in your [letter] [wire], dated, ___________,
19__, relating to $_______ million principal amount of our [insert title of
Securities]. We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement filed as an exhibit to the undersigned's registration
statement on Form S-3 (No. 333- ) (the "Underwriting Agreement") are true and
correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof has
been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the undersigned, are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial
statements in the Prospectus (as defined in the Underwriting Agreement), there
has been no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
DIAMOND OFFSHORE DRILLING, INC.
By
_____________________________
Name:
Title:
Exhibit 1.1 - I - A - 1
ANNEX II
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on___________________, 199__)(1)
DELAYED DELIVERY CONTRACT
[date]
DIAMOND OFFSHORE DRILLING, INC.
c/o [name and address of
lead manager]
Gentlemen:
The undersigned hereby agrees to purchase from Diamond Offshore Drilling,
Inc., a Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof,] for
delivery on _________, 19__ ("Delivery Date")
[$] __________________
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated _________, 19__ and a Prospectus
Supplement dated __________, 19__ relating thereto, receipt of copies of which
is hereby acknowledged, at ___% of the principal amount thereof plus accrued
interest, if any, and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the principal amounts set
forth below:
Delivery Date Principal Amount
------------- ----------------
-----------------------
-----------------------
--------
(1) Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
Exhibit 1.1 - II - 1
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on--the--each--Delivery Date shall be made to the Company or its order
in same day funds at the office of ___________ at ____________________ .M.
on--the--such--Delivery Date upon delivery to the undersigned of the Securities
to be purchased by the undersigned--for delivery on such Delivery Date--in
definitive fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than five full business days
prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
__________________________________
(Name of Purchaser)
By
Exhibit 1.1 - II - 2
_________________________________
_________________________________
(Title of Signatory)
_________________________________
_________________________________
(Address of Purchaser)
Accepted, as of the above date.
DIAMOND OFFSHORE DRILLING, INC.
By_____________________________
[Insert Title]
Exhibit 1.1 - II - 3
