ENSCO PLC Underwriting Agreement
Exhibit 1.1
To the Representatives named in
Schedule I hereto of the several
Underwriters named in
Schedule II hereto
Schedule I hereto of the several
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Ensco plc, a public limited company organized under the laws of England and Wales (the
“Company”), proposes to sell to the several underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the “Representatives”) are acting as representatives, $1,000,000,000
aggregate principal amount of its 3.250% Senior Notes due 2016 and $1,500,000,000 aggregate
principal amount of its 4.700% Senior Notes due 2021 (collectively, the “Securities”), to be issued
under an indenture (the “Base Indenture”) to be dated as of the Closing Date (as defined herein),
between the Company and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”), as
supplemented by the first supplemental indenture thereto to be dated the Closing Date (the
“Supplemental Indenture” and, the Base Indenture so supplemented, the “Indenture”). To the extent
there are no additional Underwriters listed on Schedule I other than you, the term Representatives
as used herein shall mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. Any reference herein to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the Registration Statement or the issue
date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. Certain terms used herein are defined in
Section 22 hereof.
Proceeds from the issuance of the Securities will be used to fund a portion of the cash
consideration in the merger (the “Merger”) of an indirect wholly owned Subsidiary of the Company
with and into Pride International, Inc. (“Pride”).
1. Representations and Warranties. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration statement, as defined
in Rule 405 (the file number of which is set forth in Schedule I hereto) on Form S-3,
including a related Base Prospectus, for registration under the Act of the offering and sale
of the Securities. Such Registration Statement, including any amendments thereto filed
prior to the Execution
Time, became effective upon filing. The Company may have filed with the Commission, as
part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more
preliminary prospectus supplements relating to the Securities, each of which has previously
been furnished to you. The Company will file with the Commission a final prospectus
supplement relating to the Securities in accordance with Rule 424(b). As filed, such final
prospectus supplement shall contain all information required by the Act and the rules
thereunder, and, except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that contained in the Base
Prospectus and any Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). The initial
Effective Date of the Registration Statement was not earlier than the date three years
before the Execution Time.
(b) On each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on each Effective Date and at the
Execution Time, the Registration Statement did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; on the Effective Date and
on the Closing Date the Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules thereunder; and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (i) that part
of the Registration Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto), it being understood and agreed that the only such information furnished
by or on behalf of any Underwriter consists of the information described as such in Section
23 hereof.
(c) (i) The Disclosure Package and (ii) each electronic road show, when taken together
as a whole with the Disclosure Package, does not contain any untrue statement of a material
fact or omit 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 the Disclosure Package based 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 or on behalf of any Underwriter consists of the
information described as such in Section 23 hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Sections
13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company
or any person acting on its behalf (within the meaning, for this clause only, of Rule
163(c)) made any offer relating to the Securities in reliance on the exemption in Rule 163,
and (iv) at the Execution Time (with such date being used as the determination date for
purposes of this clause (iv)), the Company was or is (as the case may be) a “well-known
seasoned issuer” as defined in Rule 405. The Company agrees to pay the fees required by the
Commission relating to the Securities within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as
the determination date for purposes of this clause (ii)), the Company was not and is not an
Ineligible Issuer (as defined in Rule 405), without taking account of any determination by
the Commission pursuant to Rule 405 that it is not necessary that the Company be considered
an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed
pursuant to Section 5(b) hereto does not include any information that conflicts with the
information contained in the Registration Statement, including any document incorporated
therein by reference and any prospectus supplement deemed to be a part thereof that has not
been superseded or modified. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based 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 or on behalf of any Underwriter consists of the information described as such
in Section 23 hereof.
(g) The Company is a public limited company duly organized and validly existing
under the laws of England and Wales. The English Subsidiaries are private limited companies
duly organized and validly existing under the laws of England and Wales. Each of the
Subsidiaries (other than a Non-English Subsidiary) has been duly formed or incorporated
and is validly existing as a corporation or limited liability company in good standing under
the laws of the jurisdiction in which it is chartered or organized. Each of the Company and
its Subsidiaries has full corporate or limited liability power and authority to own or
lease, as the case may be, and to operate its properties and conduct its business as
described in the Disclosure Package and the Final Prospectus, and, to the extent that
such concepts exist in the relevant jurisdiction, is duly qualified to do business as a
foreign entity and is in good standing under the laws of each jurisdiction which requires
such qualification, except in any case (other than the valid existence of the Company), to
the extent as could not reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business.
(h) There is no contract or other document of a character required to be described in
the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required (and the Preliminary Prospectus contains in all material
respects the same description of the foregoing matters contained in the Prospectus); and the
statements in the Preliminary Prospectus and the Prospectus under the heading “Certain U.K.
and U.S. Federal Tax Consequences” insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or proceedings.
(i) This Agreement has been duly authorized, executed and delivered by the Company.
(j) The Company has all requisite corporate power and authority to execute, deliver and
perform each of its obligations under the Indenture and the Securities. The Indenture has
been duly authorized by the Company. When executed and delivered by the Company, the
Indenture will constitute a valid and legally binding obligation of the Company, and
enforceable against the Company in accordance with its terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors’ rights generally, and (ii)
general principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity), comity and the discretion of the court before which any
proceeding therefor may be brought (collectively, the “Enforceability Exceptions”)
(k) The Securities, when issued, will be in the form contemplated by the Indenture.
The Securities have been duly authorized by the Company and, when executed by the Company
and authenticated by the Trustee in accordance with the provisions of the Indenture and when
delivered to and paid for by the Underwriters in accordance with the terms of this
Agreement, will constitute valid and legally binding obligations of the Company, entitled to
the benefits of the Indenture, and enforceable against the Company in accordance with their
terms, except that the enforcement thereof may be subject to the Enforceability Exceptions.
(l) The Company is not and, after giving effect to the offering and sale of the
Securities and the receipt or application of the proceeds thereof as described in the
Disclosure Package and the Prospectus, will not be an “investment company” as defined in the
Investment Company Act of 1940, as amended.
(m) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the offer and sale of the
Securities, except such as may be required under the Act and the Trust Indenture Act and
such as may be required under the blue sky laws of any jurisdiction or the bylaws and rules
of the Financial Industry Regulatory Authority (“FINRA”) in connection with the purchase and
distribution of the Securities by the Underwriters in the manner contemplated herein and in
the Disclosure Package and the Prospectus.
(n) Neither the issue and sale of the Securities nor the consummation of any other of
the transactions herein contemplated nor the fulfillment by the Company of the terms hereof
will conflict with, result in a breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant
to, (i) the charter or by-laws or other organizational documents of the Company or any of
its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or any of its Subsidiaries is a party or bound or to which
its or their property is subject, or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any of its Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its Subsidiaries or any of its or their
properties, except, in the case of clause (ii) or (iii), as could not reasonably be expected
to have a material adverse effect on the condition (financial or otherwise), earnings,
business or properties of the Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business.
(o) No holders of securities of the Company have rights to the registration of such
securities under the Registration Statement.
(p) The consolidated historical financial statements and schedules included or
incorporated by reference in the Preliminary Prospectus, the Prospectus and the Registration
Statement present fairly the financial condition, results of operations and cash flows of
the entities to which they relate on the basis stated therein as of the dates and for the
periods indicated, comply as to form with the applicable accounting requirements of the Act
and have been prepared in conformity with generally accepted accounting principles applied
on a consistent basis throughout the periods involved (except as otherwise noted therein).
The selected financial data set forth or incorporated by reference in the Preliminary
Prospectus, the Prospectus and Registration Statement are or will be, as applicable, in all
material respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company, on the basis stated in the
Preliminary Prospectus, the Prospectus and the Registration Statement. The pro forma
financial statements included or incorporated by reference in the Preliminary Prospectus,
the Prospectus and the Registration Statement include assumptions that provide a reasonable
basis for presenting the significant effects directly attributable to the transactions and
events described therein, the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma adjustments reflect the proper application of those
adjustments to the historical financial statement amounts in the pro forma financial
statements included in the Preliminary Prospectus, the Prospectus and the Registration
Statement. The pro forma financial statements included or incorporated by reference in the
Preliminary Prospectus, the Prospectus and the Registration Statement comply as to form in
all material respects with the applicable accounting requirements of Regulation S-X under
the Act and the pro forma adjustments have been applied on a basis consistent with such
financial statements and the books and records of the Company.
(q) Except as disclosed in the Disclosure Package and the Prospectus, no action, suit
or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries or its or their property is
pending or, to the knowledge of the Company, threatened that (i) could reasonably be
expected to have a material adverse effect on the performance of this Agreement by the
Company or the consummation by the Company of the offer and sale of the Securities or (ii)
could reasonably be expected to have a material adverse effect on the condition (financial
or otherwise), earnings, business or properties of the Company and its Subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course of business,
except as disclosed in the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(r) Each of the Company and each of its Subsidiaries owns or leases all such properties
as are necessary in all material respects to the conduct of its operations as presently
conducted.
(s) Neither the Company nor any Subsidiary is in violation or default of (i) any
provision of its charter or bylaws or other organizational documents, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is a party or bound or
to which its property is subject, or (iii) any statute, law, rule, regulation, judgment,
order or decree of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or such Subsidiary or any
of its properties, as applicable, except (with respect to each of (ii) and (iii)) (x) to the
extent as could not reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business or (y) as disclosed in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(t) KPMG LLP, who have delivered their reports with respect to the audited consolidated
financial statements and schedules included or incorporated by reference in the Disclosure
Package and the Prospectus, are independent public accountants with respect to each of the
entities to which such financial statements relate, within the meaning of the Act and the
applicable published rules and regulations thereunder.
(u) There are no transfer taxes or other similar fees or charges under Federal law or
the laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Securities.
(v) The Company has filed all tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to file could not
reasonably be expected to have a material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the Company and its Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of business, except
as disclosed in the Disclosure Package and the Prospectus (exclusive of any supplement
thereto)) and has paid all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being contested in good
faith or as could not reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as disclosed in the Disclosure Package and the Prospectus
(exclusive of any supplement thereto).
(w) No significant Subsidiary (within the meaning of Regulation S-X under the Exchange
Act) of the Company is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such Subsidiary’s capital
stock, from repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary’s property or assets to the Company or
any other Subsidiary of the Company, except as disclosed in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(x) No labor problem or dispute with the employees of the Company or any of its
Subsidiaries exists or, to the knowledge of the Company, is threatened or imminent, and to
the knowledge of the Company, there is no existing or imminent labor disturbance by the
employees of any of its or its Subsidiaries’ principal suppliers, contractors or customers,
in each case, that could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as disclosed in the Disclosure Package and the Prospectus
(exclusive of any supplement thereto).
(y) The Company and each of its Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; all material policies of
insurance and fidelity or surety bonds insuring the Company or any of its Subsidiaries or
their respective businesses, assets, employees, officers and directors are in full force and
effect; the Company and its Subsidiaries are in compliance in all material respects with the
terms of such policies and instruments in all
material respects; and there are no material claims by the Company or any of its
Subsidiaries under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause; neither the Company nor
any such Subsidiary has been refused any insurance coverage sought or applied for; and
neither the Company nor any such Subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business at a
cost that could not reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as disclosed in the Disclosure Package and the Prospectus
(exclusive of any supplement thereto).
(z) The Company and its Subsidiaries possess all licenses, certificates, permits and
other authorizations issued by all applicable authorities necessary to conduct their
respective businesses, except as could not reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, and neither the Company nor any such
Subsidiary has received any written notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be
expected to have a material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Company and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business, except as
disclosed in the Disclosure Package and the Prospectus (exclusive of any supplement
thereto).
(aa) The Company and each of its Subsidiaries maintain a system 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
generally accepted accounting principles and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences. The Company and its Subsidiaries’ internal controls over financial reporting
(as such term is defined in Rule 13a-15(f) under the Exchange Act) are effective and the
Company and its Subsidiaries are not aware of any material weakness in their internal
controls over financial reporting.
(bb) The Company and its Subsidiaries maintain “disclosure controls and procedures” (as
such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and
procedures are effective.
(cc) The Company has not taken, directly or indirectly, any action designed to or which
has constituted or which would have been reasonably expected to cause or result in, under
the Exchange Act or otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(dd) The Company and its Subsidiaries are (i) in compliance with any and all applicable
international, foreign, federal, state and local laws and regulations relating to the
protection of human health and safety or the environment including those relating to
Materials of Environmental Concern (“Environmental Laws”), (ii) have received and are in
compliance with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct
their respective businesses and (iii) have not received notice of any actual or
potential liability under any environmental law, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or other approvals, or
actual or potential liability could not, individually or in the aggregate, reasonably be
expected to have a material adverse change in the condition (financial or otherwise),
earnings, business or properties of the Company and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business, except as
disclosed in the Disclosure Package and the Prospectus (exclusive of any supplement
thereto). Except as disclosed in the Disclosure Package and the Prospectus, neither the
Company nor any of the Subsidiaries has been named as a “potentially responsible party”
under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended, or the Oil Pollution Act of 1990. “Materials of Environmental Concern” means any
substance, material, pollutant or contaminant, chemical, waste, compound, or constituent, in
any form, including, without limitation, petroleum products, natural gas and natural gas
liquids, regulated under any Environmental Law.
(ee) Except as disclosed in the Disclosure Package and the Prospectus and except as
could not reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, none of the following events has occurred or exists: (i) a
failure to fulfill the obligations, if any, under the minimum funding standards of Xxxxxxx
000 xx xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), and the regulations and published interpretations thereunder with respect to a
Plan, determined without regard to any waiver of such obligations or extension of any
amortization period; (ii) an audit or investigation by the Internal Revenue Service, the
U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or
state governmental agency or any foreign regulatory agency with respect to the employment or
compensation of employees by any of the Company or any of its Subsidiaries; or (iii) any
breach of any contractual obligation, or any violation of law or applicable qualification
standards, with respect to the employment or compensation of employees by the Company or any
of its Subsidiaries. Except as disclosed in the Disclosure Package and the Prospectus and
except as could not, singly or in the aggregate, have a material adverse effect on the
financial condition, earnings, business or properties of the Company and its Subsidiaries,
taken as a whole, none of the following events has occurred is reasonably likely to occur:
(i) an increase in the aggregate amount of contributions required to be made to all Plans in
the current fiscal year of the Company and its Subsidiaries compared to the amount of such
contributions made in the most recently completed fiscal year of the Company and its
Subsidiaries; (ii) an increase in the “accumulated post-retirement benefit obligations”
(within the meaning of Statement of Financial Accounting Standards 106) of the Company and
its Subsidiaries compared to the amount of such obligations in the most recently completed
fiscal year of the Company and its Subsidiaries; (iii) any event or condition giving rise to
a liability under Title IV of ERISA; or (iv) the filing of a claim by one or more employees
or former employees of the Company or any of its Subsidiaries related to their employment.
For purposes of this paragraph, the term “Plan” means a plan (within the meaning of Section
3(3) of ERISA) subject to Title IV of ERISA with respect to which the Company or any of its
Subsidiaries may have any liability.
(ff) There is and has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such, to comply with any provision
of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection
therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 relating to loans and Sections
302 and 906 relating to certifications.
(gg) Neither the Company nor any of the Subsidiaries has made any contribution or other
payment to any official of, or candidate for, any federal, state or foreign office in
violation of any law which violation is required to be disclosed in the Registration
Statement, the Disclosure Package or the Prospectus under the Act and the rules and
regulations thereunder which is not so disclosed. Except as disclosed in the Disclosure
Package and the Prospectus, neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the Company
or any of its Subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the “FCPA”), including, without
limitation, making use of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA)
or any foreign political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA; and the Company, its Subsidiaries and, to the
knowledge of the Company, its affiliates have conducted their businesses in compliance with
the FCPA and have instituted and maintain policies and procedures designed to ensure, and
which are reasonably expected to continue to ensure, continued compliance therewith.
(hh) The operations of the Company and its Subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
of the money laundering statutes and the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ii) Neither the Company nor any of its Subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
Subsidiaries is currently subject to any sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly
or indirectly use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any Subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(jj) Except as disclosed in the Registration Statement, the Disclosure Package and the
Prospectus, the Company (i) to its knowledge, does not have any material lending or other
relationship with any bank or lending affiliate of any of the Underwriters and (ii) does not
intend to use any of the proceeds from the sale of the Securities hereunder to repay any
outstanding debt owed to any affiliate of the Underwriters.
(kk) Neither the Company nor any of its Subsidiaries nor any of its or their properties
or assets has any immunity either from the jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment, attachment in aid
of execution or otherwise) under the laws of England or Wales.
(ll) The statistical, industry-related and market-related data included in the
Registration Statement, the Disclosure Package and the Prospectus are based on or derived
from sources which the Company reasonably and in good faith believes are reliable and
accurate, and such data agree with the sources from which they are derived.
(mm) There are no relationships or related-party transactions involving the Company or
any of the Subsidiaries or any other person required under the Act and the rules and
regulations promulgated thereunder to be described in the Disclosure Package and the
Prospectus that have not been described as required.
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule I hereto the principal amount of the Securities of each series
set forth opposite such Underwriter’s name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall be made on
the date and at the time specified in Schedule I hereto or at such time on such later date not more
than three Business Days after the foregoing date as the Representatives shall designate, which
date and time may be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the Securities being
herein called the “Closing Date”). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the order of the Company by
wire transfer payable in same-day funds to an account specified by the Company. Delivery of the
Securities shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. The Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed in a form approved by
the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the Representatives
(i) when the Final Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of
the offering of the Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iii) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Final Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any notice objecting to its use or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the institution or threatening of any proceeding for such purpose.
The Company will use its reasonable best efforts to prevent the issuance of any such stop
order or the occurrence of any such suspension or
objection to the use of the Registration Statement and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of such stop order or
relief from such occurrence or objection, including, if necessary, by filing an amendment to
the Registration Statement or a new registration statement and using its reasonable best
efforts to have such amendment or new registration statement declared effective as soon as
practicable.
(b) To prepare a final term sheet, containing solely a description of final terms of
the Securities and the offering thereof, in the form reasonably approved by you and attached
as Schedule IV hereto and to file such term sheet pursuant to Rule 433(d) within the time
required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule
424(b), any event occurs as a result of which the Disclosure Package would include any
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 or the
circumstances then prevailing not misleading, the Company will (i) notify promptly the
Representatives so that any use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or
omission; and (iii) supply any amendment or supplement to you in such quantities as you may
reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any 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 at such time not misleading, or if it shall be necessary to amend
the Registration Statement, file a new registration statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder,
including in connection with use or delivery of the Final Prospectus, the Company promptly
will (i) notify the Representatives of any such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment
or supplement or new registration statement which will correct such statement or omission or
effect such compliance, (iii) use its reasonable best efforts to have any amendment to the
Registration Statement or new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply
any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(e) 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 need not be audited) which will satisfy the provisions of Section
11(a) of the Act and Rule 158.
(f) The Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits thereto) and
to each other Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the
Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer
Free Writing Prospectus and any supplement thereto as the Representatives may reasonably
request.
(g) The Company will arrange, if necessary, for the qualification of each series of the
Securities for sale under the laws of such jurisdictions as the Representatives may
designate and
will maintain such qualifications in effect so long as required for the distribution of
such series of the Securities and will pay any fee of FINRA in connection with its review of
the offering; provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written
consent of the Representatives, and each Underwriter, severally and not jointly, agrees with
the Company that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Company, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433, other than a free
writing prospectus containing the information contained in the final term sheet prepared and
filed pursuant to Section 5(b) hereto; provided that the prior written consent of the
parties hereto shall be deemed to have been given in respect of the Free Writing
Prospectuses included in Schedule III hereto and any electronic road show. Any such free
writing prospectus consented to by the Representatives or the Company is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has
treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be,
with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending and record
keeping.
(i) The Company will not, without the prior written consent of the Representatives,
offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly or indirectly, including
the filing (or participation in the filing) of a registration statement with the Commission
in respect of, or establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the Exchange Act, any debt
securities issued or guaranteed by the Company (other than the Securities) or publicly
announce an intention to effect any such transaction, until the Business Day after the
Closing Date.
(j) The Company will not take, directly or indirectly, any action designed to or
that would reasonably be expected to constitute or which would reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and filing with the Commission of
the Registration Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and
each amendment or supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus
and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them,
as may, in each case, be reasonably requested for use in connection with the offering and
sale of the Securities; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the Securities; (iv) the
printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all
other agreements or documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (v) the registration of the Securities under the Exchange Act
and the listing of the Securities on the New York Stock Exchange; (vi) any registration or
qualification of the Securities for offer and sale under the securities or blue sky laws of
the several states (including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such registration and qualification) or the provincial
securities laws of Canada and preparing and printing a “Blue Sky Survey” or memorandum, and
any supplements thereto and advising the Underwriters of such qualifications, registrations
and exemptions; (vii) any filings required to be made with FINRA (including filing fees and
the reasonable fees and expenses of counsel for the Underwriters relating to such filings);
(viii) the transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of the
Securities; (ix) the fees and expenses of the Company’s accountants and the fees and
expenses of counsel (including local and special counsel) for the Company; and (x) all other
costs and expenses required in connection with the performance by the Company of its
obligations hereunder. It is understood, however, that, except as provided in this Section
5(k) or Sections 7 or 8 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees and expenses of counsel to the Underwriters and any advertising
expenses incurred in connection with the offering and sale of the Securities.
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner
and within the time period required by Rule 424(b); the final term sheet contemplated by
Section 5(b) hereto, and any other material required to be filed by the Company pursuant to
Rule 433(d) under the Act, shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; and no stop order suspending the
effectiveness of the Registration Statement or any notice objecting to its use shall have
been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx & XxXxxxxx LLP, counsel for
the Company, to have furnished to the Representatives its opinion, dated the Closing Date
and addressed to the Representatives, to the effect that:
(i) the Registration Statement has become effective under the Act; any
required filing of the Base Prospectus, any Preliminary Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use has been issued, no proceedings for
that purpose have been instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements and other financial and
statistical information, schedules and data contained therein, as to which such
counsel need express no opinion) comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and
the respective rules thereunder.
(ii) no facts have come to such counsel’s attention that lead such counsel
to believe that, on the effective date, the Registration Statement contains any
untrue statement of a material fact or omits to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or that
the Final Prospectus as of its date or on the Closing Date included or includes any
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading (in each case, other than the financial
statements and other financial and accounting information, schedules and data
contained therein, as to which such counsel need express no opinion);
(iii) no facts have come to such counsel’s attention that lead such counsel
to believe that the Disclosure Package, as amended or supplemented at the Execution
Time, contains any untrue statement of a material fact or omits 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 (other than the financial
statements and other financial and accounting information, schedules and data
contained therein, as to which such counsel need express no opinion);
(iv) the Company is a public limited company validly existing under the
laws of England and Wales. Each Subsidiary listed on Schedule V (which may be
referred to herein as the “Opinion Subsidiaries”) is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it is
chartered or organized, and is duly qualified to do business as a foreign
corporation and is in good standing in the jurisdictions set forth in Schedule V;
(v) the information set forth in the most recent Preliminary Prospectus and
in the Final Prospectus under the captions “Description of Other Indebtedness” and
“Description of Notes,” insofar as such information constitutes a summary of the
legal matters or describe certain terms or provisions of the agreements referred to
therein, fairly presents the information called for with respect to such legal
matters and agreements;
(vi) the statements contained in the Preliminary Prospectus and the Final
Prospectus under the caption “Certain U.S. Federal and U.K. Tax Consequences,”
insofar as they purport to constitute summaries of matters of United States federal
income or U.K. tax law and regulations or legal conclusions with respect thereto,
constitute fair summaries of the matters described therein in all material respects.
(vii) the Indenture has been duly authorized, executed and delivered, has
been duly qualified under the Trust Indenture Act, and constitutes a legal, valid
and binding instrument enforceable against the Company in accordance with its terms
(subject to applicable bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors’ rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, and comity regardless of
whether considered in a proceeding in equity or at law and the discretion of the
court); and the Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement, will constitute legal,
valid and binding obligations of the Company entitled to the benefits of the
Indenture (subject to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors’ rights generally from time to time in effect and
to general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good
faith and fair dealing, and comity regardless of whether considered in a
proceeding in equity or at law and the discretion of the court);
(viii) to the knowledge of such counsel, there is no pending or threatened
action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its Subsidiaries or its or
their property, of a character required under the Act and the rules and regulations
promulgated thereunder to be disclosed in the Registration Statement which is not
described as required; and there is, to the knowledge of such counsel, no franchise,
contract or other document of a character required under the Act and the rules and
regulations promulgated thereunder to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required;
(ix) this Agreement has been duly authorized, executed and delivered by the
Company;
(x) the Company is not and, after giving effect to the offering and sale of
the Securities and the receipt or application of the proceeds thereof as described
in the Disclosure Package and the Final Prospectus, will not be an “investment
company” as defined in the Investment Company Act of 1940, as amended;
(xi) no consent, approval, authorization, filing with or order of any court
or governmental agency or body of the United Kingdom, the United States or the State
of New York is required in connection with the offer and sale of the Securities,
except such as have been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner contemplated in
this Agreement, the Disclosure Package and the Final Prospectus and such other
approvals (specified in such opinion) as have been obtained;
(xii) neither the execution and delivery of the Indenture, the issue and
sale of the Securities, nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or its Subsidiaries pursuant to, (i) the Articles of
Association of the Company or the articles of association, charter or bylaws (as
applicable) of its Opinion Subsidiaries, (ii) the terms of any instrument that is
listed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended
December 31, 2010 or any subsequent filing with the SEC; (iii) any statute, law,
rule, regulation of the United Kingdom, the United States or the State of New York
applicable to the Company or its Opinion Subsidiaries; or (iv) any judgment, order
or decree known to us to be applicable to the Company or its Opinion Subsidiaries of
any court, regulatory body, administrative agency, governmental body, arbitrator or
other authority of the United Kingdom, the United States or the State of New York,
except (for (ii), (iii) and (iv) only), to the extent as could not have a material
adverse effect on the financial condition, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole; and
(xiii) to the knowledge of such counsel, no holders of securities of the
Company have rights to the registration of such securities under the Registration
Statement.
In rendering such opinion, such counsel may rely, inter alia, (A) as to matters involving
the application of laws of any jurisdiction other than England and Wales, the State of New
York or the United States of America, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe to be reliable
and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in this paragraph (b) shall also
include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxx Xxxxxx & Xxxxxxx
llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date
and addressed to the Representatives, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final
Prospectus (together with any supplement thereto) and other related matters as the
Representatives may reasonably 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.
(d) The Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chairman of the Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the Disclosure Package,
the Final Prospectus and any supplements or amendments thereto, as well as each electronic
road show used in connection with the offering of the Securities, and this Agreement and
that:
(i) the representations and warranties of the Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the agreements set forth
herein and satisfied all the conditions on its part to be performed or satisfied at
or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use has been issued and no proceedings for
that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in
the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as disclosed in the Disclosure Package and the
Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG LLP to have furnished to the
Representatives, at the Execution Time and at the Closing Date, comfort letters, (which may
refer to letters previously delivered to one or more of the Representatives), dated
respectively as of the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable rules and
regulations adopted by the Commission thereunder with respect to each of the Company and
Pride (each, an “Applicable Company”) and stating in effect that, with respect to each
Applicable Company:
(i) in their opinion the audited financial statements and financial
statement schedules and pro forma financial statements included or incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Final
Prospectus and reported on by them comply as to form with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
(ii) on the basis of a reading of the latest financial information made
available by the Applicable Company and its subsidiaries; carrying out certain
specified procedures (but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and committees of the board of directors of
the Applicable Company and the Subsidiaries, including the audit committee; and
inquiries of certain officials of the Applicable Company who have responsibility for
financial and accounting matters of the Applicable Company and its subsidiaries as
to transactions and events subsequent to December 31, 2010, nothing came to their
attention which caused them to believe that:
(1) with respect to the period subsequent to December 31, 2010,
there were any changes, at a specified date not more than three days prior
to the date of the letter, in the long-term debt of the Applicable Company
and its subsidiaries or treasury stock of the Applicable Company or
decreases in the shareholders’ equity of the Applicable Company or decreases
in working capital or total assets of the Applicable Company and its
subsidiaries as compared with the amounts shown on the December 31, 2010
consolidated balance sheet included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Final Prospectus,
or for the period from January 1, 2011 to such specified date there were any
decreases, as compared with the corresponding period in the preceding year
in net revenues or income before income taxes or in net income of the
Applicable Company and its subsidiaries, except in all instances for changes
or decreases set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Applicable Company as to the
significance thereof unless said explanation is not deemed necessary by the
Representatives; or
(2) the information included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus and Final Prospectus in
response to Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive Compensation) and
Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with
the applicable disclosure requirements of Regulation S-K;
(iii) they have performed certain other specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Applicable Company
and its subsidiaries) set forth in the Registration Statement, the Preliminary
Prospectus and the Final Prospectus and in Exhibit 12 to the Registration Statement,
including the information set forth under the caption “Unaudited Pro Forma Condensed
Combined Financial Information ” in the Preliminary Prospectus and the Final
Prospectus, the information included or incorporated by reference in Items 1, 6, 7
and 11 of the Applicable Company’s Annual Report on Form 10-K, incorporated by
reference in the Registration Statement, the Preliminary
Prospectus and the Final Prospectus, agrees with the accounting records of the
Applicable Company and its subsidiaries, excluding any questions of legal
interpretation; and
(iv) on the basis of a reading of the unaudited pro forma financial
statements included or incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus (the “pro forma financial
statements”); carrying out certain specified procedures; inquiries of certain
officials of the Applicable Company who have responsibility for financial and
accounting matters; and proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused them to believe that the
pro forma financial statements do not comply as to form in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly applied to the historical amounts
in the compilation of such statements.
References to the Final Prospectus in this paragraph (e) include any supplement thereto
at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment thereof) and
the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not
have been (i) any change or decrease specified in the comfort letters referred to in
paragraph (e) of this Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise), earnings,
business or properties of the Company and its Subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as disclosed in the
Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and
the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of the Company or any of its debt by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of
any intended or, except with respect to the Company’s receipt of notice of a negative watch,
potential decrease in any such rating or of a possible change in any such rating that does
not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the Representatives
may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Xxxxxx Xxxxxx & Xxxxxxx llp, counsel for the Underwriters, at 00 Xxxx Xxxxxx, Xxx Xxxx, XX
00000, on the Closing Date.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations of the Underwriters
set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through the Representatives
on demand for all reasonable out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either the Act or the Exchange
Act against any and all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law 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 a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof, or in the Base
Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to
the Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the information
contained in the final term sheet required to be prepared and filed pursuant to Section 5(b)
hereto, or in any amendment thereof or supplement thereto, 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 agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage, liability or action;
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 any such
untrue statement or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the Company by or on behalf
of any Underwriter through the Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration Statement, and each
person who controls the Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter through the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 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 this Section 8, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s
expense to represent the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the fees and expenses of
any separate counsel retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the indemnified party in writing to employ
separate counsel at the expense of the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or proceeding. The indemnifying party shall
not be required to indemnify the indemnified party for any amount paid or payable by the
indemnified party in the settlement of any proceeding effected without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld or delayed.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section
8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in connection with
investigating or defending the same) (collectively “Losses”) to which the Company and one or more
of the Underwriters may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and by the Underwriters on the other from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters relating to the offering
of the Securities) be responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take account of the
equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), 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. For purposes
of this Section 8, each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default in the performance
of its or their obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the aggregate principal
amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as the Representatives
shall determine in order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s
American Depositary Shares shall have been suspended by the Commission or the New York Stock
Exchange or trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State authorities or (iii) there
shall have occurred any outbreak or escalation of hostilities, declaration by the United States of
a national emergency or war, or other calamity or crisis the effect of which on financial markets
is such as to make it, in the judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of any series of the Securities as contemplated by any
Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only
on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to (i) the
Citigroup Global Markets Inc. General Counsel (fax no.: (000) 000-0000) and confirmed to the
General Counsel, Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: General Counsel, (ii) Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000; Attention: Debt Capital Markets Syndicate Desk (fax no.: (000) 000-0000),
with a copy to Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel and (iii) Xxxxx Fargo Securities, LLC, at 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000, Attention: Transaction Management (fax no.: (000) 000-0000); or, if sent to the Company,
will be mailed, delivered or telefaxed to x00 (0) 000 000 0000 and confirmed to it at 0
Xxxxxxxxxxxx Xxxxxxx, Xxxxxx X0X 0XX, Xxxxxxx, Attention: Chief Financial Officer with a copy to
Xxxxx & XxXxxxxx LLP, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000, Attention: Xxxx X. Xxxxxx
(fax no.: (000) 000-0000).
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on
the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the
Company and (c) the Company’s engagement of the Underwriters in connection with the offering and
the process leading up to the offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its own judgments in
connection with the offering (irrespective of whether any of the Underwriters has advised or is
currently advising the Company on related or other matters). The Company agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or respect, or owe an
agency, fiduciary or similar duty to the Company, in connection with such transaction or the
process leading thereto.
15. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
16. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
18. Submission to Jurisdiction; Service of Process. The Company hereby irrevocably
and unconditionally (i) submits, for itself and for its property, to the exclusive jurisdiction of
the United Stated District Court for the Southern District of New York or, if that federal court
lacks subject matter jurisdiction, the Commercial Division of the Supreme Court of the State of New
York sitting in New York County, and any appellate court from any thereof, in any action or
proceeding arising out of or in any way relating to this Agreement or the transactions contemplated
hereby, or for recognition or enforcement of any judgment, (ii) agrees that it will not assert any
claim, or in any way support any suit, action or proceeding, arising out of or relating to this
Agreement or the transactions contemplated hereby, or for recognition or enforcement of any
judgment, other than in such courts, (iii) agrees that all suits,
claims, actions or proceedings related to this Agreement or the transactions contemplated
hereby shall be heard and determined only in such courts, (iv) waives, to the fullest extent it may
effectively do so, the defense of inconvenient forum and (v) agrees that a final judgment of such
courts shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or
in any other manner provided by law. The Company agrees that service of any process, summons,
notice or document by registered mail addressed to the Company c/o Xxxx X. Xxxxxxxx, Xx., Vice
President, General Counsel and Secretary, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000-0000 shall be effective service of process against the Company for any suit, action or
proceeding relating to any dispute related to this Agreement or the transactions contemplated
hereby. Nothing in this Agreement will affect the right of any party hereto to serve process in
any other manner permitted by applicable requirements of law.
19. Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder, or in connection with the transactions contemplated in
this document, in dollars into another currency, the parties hereto agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures, the parties could purchase (and remit in New York City)
dollars with such other currency on the business day preceding that on which final judgment is
given. The Company’s obligation in respect of any sum due hereunder or in connection with the
transactions contemplated in this document shall, notwithstanding any judgment in a currency other
than dollars, be discharged only to the extent that on the business day following their receipt of
any sum adjudged to be so due in such other currency, the parties may, in accordance with normal
banking procedures, purchase (and remit in New York City) dollars with such other currency; if the
dollars so purchased and remitted are less than the sum originally due to the Underwriters or any
other indemnified party in dollars, the Company agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the relevant payee against such loss, and if the
dollars so purchased exceed the sum originally due in dollars, such excess shall be remitted to the
Company.
20. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
21. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
22. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended and the rules and regulations
of the Commission promulgated thereunder.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) each Issuer Free Writing
Prospectuses, if any, identified in Schedule III(b) hereto, (iv) the final term sheet
prepared and filed pursuant to
Section 5(b) hereto, if any, and (v) any other Free Writing Prospectus that the parties
hereto shall hereafter expressly agree in writing to treat as part of the Disclosure
Package.
“Effective Date” shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433, including those identified in Schedule III (a) and (b).
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the
Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph
1(a) above, including exhibits and financial statements and any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and
deemed part of such registration statement pursuant to Rule 430B, as amended on each
Effective Date and, in the event any post-effective amendment thereto becomes effective
prior to the Closing Date, shall also mean such registration statement as so amended.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430B” and “Rule 433” refer to such rules under the Act.
“Subsidiary” shall mean each person in which the Company has a direct or indirect
majority equity or voting interest.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended and the
rules and regulations of the Commission promulgated thereunder.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in
Rule 405.
23. The Company acknowledges that (i) the statements set forth in the last paragraph of the
cover page regarding delivery of the Securities and, under the heading “Underwriting” or “Plan of
Distribution”, (ii) the list of Underwriters and their respective participation in the sale of the
Securities, (iii) the sentences related to concessions and reallowances and (iv) the statements set
forth in the paragraph related to stabilization, syndicate covering transactions and penalty bids
in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or
any Issuer Free Writing Prospectus.
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
| Very truly yours, Ensco plc |
||||
| By: | /s/ Xxxxx X. Xxxxx III | |||
| Name: | Xxxxx X. Xxxxx III | |||
| Title: | Senior Vice President — Chief Financial Officer | |||
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
| Citigroup Global Markets Inc. |
||||
| By: | /s/ Xxxxx X. Bedranski | |||
| Name: | Xxxxx X. Bedranski | |||
| Title: | Managing Director | |||
| Deutsche Bank Securities Inc. |
||||
| By: | /s/ Ben-Zion Smilchensky | |||
| Name: | Ben-Zion Smilchensky | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Director | |||
| Xxxxx Fargo Securities, LLC |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Director | |||
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated March 8, 2011
Registration Statement No. 333-156705
Representatives: Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and Xxxxx Fargo
Securities, LLC
Title, Purchase Price and Description of Securities:
Title: 3.250% Senior Notes due 0000
Xxxxxxxxx principal amount: $1,000,000,000
Purchase price (include accrued
interest, if any): 98.639%
interest, if any): 98.639%
Sinking fund provisions: None
Redemption provisions: Make-whole at T + 20 basis points
Title, Purchase Price and Description of Securities:
Title: 4.700% Senior Notes due 0000
Xxxxxxxxx principal amount: $1,500,000,000
Purchase price (include accrued
interest, if any): 97.375%
interest, if any): 97.375%
Sinking fund provisions: None
Redemption provisions: Make-whole at T + 25 basis points
Closing Date, Time and Location: March 17, 2011 at 10:00 a.m. at Xxxxxx Xxxxxx & Xxxxxxx llp
00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
Type of Offering: Non-delayed
SCHEDULE II
| Principal Amount | ||||||||
| Principal Amount | of 2021 Securities | |||||||
| of 2016 Securities to | to | |||||||
| Underwriters | be Purchased | be Purchased | ||||||
Citigroup Global Markets Inc. |
$ | 300,000,000 | $ | 450,000,000 | ||||
Deutsche Bank Securities Inc. |
300,000,000 | 450,000,000 | ||||||
Xxxxx Fargo Securities, LLC |
70,000,000 | 105,000,000 | ||||||
DnB NOR Markets, Inc. |
70,000,000 | 105,000,000 | ||||||
BBVA Securities Inc. |
60,000,000 | 90,000,000 | ||||||
HSBC Securities (USA) Inc. |
60,000,000 | 90,000,000 | ||||||
Mitsubishi UFJ Securities (USA), Inc. |
60,000,000 | 90,000,000 | ||||||
Natixis Securities North America Inc. |
50,000,000 | 75,000,000 | ||||||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated. |
20,000,000 | 30,000,000 | ||||||
Lloyds Securities Inc. |
10,000,000 | 15,000,000 | ||||||
Total |
$ | 1,000,000,000 | $ | 1,500,000,000 | ||||
SCHEDULE III(a)
Schedule of Free Writing Prospectuses:
Free Writing Prospectus, dated Xxxxx 0, 0000 (Xxxxxxxx)
XXXXXXXX XXX(x)
Schedule of Free Writing Prospectuses included in the Disclosure Package:
Free Writing Prospectus, dated March 8, 2011 (Pricing Supplement)
SCHEDULE IV
SCHEDULE V
Ensco Deepwater LLC, a Delaware limited liability company
Ensco Offshore Company, a Delaware corporation
