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EXHIBIT 1.1
XXXXXX INDUSTRIES, INC.
$325,000,000
6.80% Notes Due 2004
UNDERWRITING AGREEMENT
March 4, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Prudential Securities Incorporated
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Howard, Weil, Labouisse, Xxxxxxxxxx Incorporated
Xxxxxxx Xxxxx Barney Inc.
Xxxxxxxx & Co. Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Industries, Inc. (the "Company"), proposes to sell to the
underwriters named in Schedule I hereto (the "Underwriters"), $325,000,000
aggregate principal amount of 6.80% Notes Due 2004 of the Company, herein
called the "Securities", to be issued under an indenture (as supplemented by
Supplemental Indenture No. 1 thereto, dated as of March 1, 1999, the
"Indenture") to be dated as of March 1, 1999, between the Company and Norwest
Bank Minnesota, National Association, as trustee (the "Trustee").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(file number 333-25233) on such Form, including a related preliminary
prospectus, for the registration under the Act of the offering and sale of one
or more series of debt securities, preferred stock, warrants, common stock and
depositary shares having an aggregate initial offering price not in excess of
$350,000,000, including the Securities. The Company has filed one or more
amendments thereto, each of which has previously been furnished to you, and the
registration statement was declared effective by the Commission on May 2, 1997.
On March 1, 1999, the Company filed with the Commission under Rule 424(b)(3) a
preliminary prospectus relating to the offering of the Securities, copies of
which have previously been furnished
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to you. The Company will next file with the Commission a final prospectus in
accordance with Rules 415 and 424(b)(2) or (5). As filed, such final
prospectus, shall contain all Rule 430A Information, together with all other
such required information, with respect to the Securities and the offering
thereof and, except to the extent the Underwriters 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 latest 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 requirement set forth
in Rule 415(a)(1)(x).
(b) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the Company's knowledge,
threatened by the Commission. On the Effective Date, the Registration Statement
did, and when the Prospectus is first filed in accordance with Rule 424(b)(2)
or (5), as the case may be, and on the Closing Date, the Prospectus (and any
supple ments thereto) will, comply in all material respects with the applicable
requirements of the Act and the Securities Exchange Act of 1934 (the "Exchange
Act") and the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
respective rules thereunder; on the Effective Date, the Registration Statement
did 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 Effective Date, the Prospectus did not, and on the date of any
filing pursuant to Rule 424(b)(2) or (5), as the case may be, and on the
Closing Date, the Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a material
fact neces sary 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 relating to the Indenture which constitutes 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 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 Prospectus (or
any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date that
the Registration Statement and any post-effective amendment or amendments
thereto became or become effective and each date after the date hereof on which
a document incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is executed
and delivered by the parties hereto. "Preliminary Prospectus" shall mean any
preliminary prospectus referred to in paragraph (a) above and any preliminary
prospectus included in the Registration Statement at the Effective Date.
"Prospectus" shall mean the prospectus relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time. "Registration
Statement" shall mean the registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and financial statements, as
amended at the Execution Time and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as hereinafter
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defined), shall also mean such registration statement as so amended. "Rule
415," "Rule 424," "Rule 430A" and "Regulation S-K" refer to such rules or
regulation under the Act. "Rule 430A Information" means information with
respect to the Securities and the offering thereof which would have been
permitted to be omitted from the Registration Statement if it had become
effective pursuant to Rule 430A. Any reference herein to the Registration
Statement, a Preliminary Prospectus or the 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 such
Preliminary Pro spectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Pro spectus or the 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 any Preliminary Prospectus or the Prospectus, as the case may be,
that is incorporated therein by reference.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(e) Each Significant Subsidiary (as defined below) has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its Significant Subsidiaries, taken as a
whole; all of the issued shares of capital stock of each Significant Subsidiary
of the Company have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned directly by the Company, free and clear of all
liens, encumbrances, equities or claims. "Significant Subsidiaries" shall mean
Xxxxxx International Inc., Sundowner Offshore Services, Inc., Xxxxxx Drilling
USA, Inc., Nabors Alaska Drilling, Inc., Xxxxxx Offshore Drilling Inc., Xxxxxx
Drilling International Limited, a Delaware corporation, and Xxxxxx Drilling
Limited.
(f) This Agreement has been duly authorized, executed and delivered by
the Company.
(g) The Indenture has been duly authorized, executed and delivered by
the Company.
(h) The Securities have been duly authorized by the Company.
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(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture and the
Securities will not contravene any provision of the certificate of
incorporation or by-laws of the Company or any agreement or other instrument
binding upon the Company or any of its Significant Subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or, to the
knowledge of the Company, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any Significant
Subsidiary.
(j) There are no material legal or governmental proceedings pending
or, to the knowledge of the Company, threatened to which the Company or any of
its Significant Subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or any material contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that are
not described, filed or incorporated as required.
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 a purchase price equal to 99.31%
of the principal amount thereof, plus accrued interest, if any, from the
Closing Date (as hereinafter defined), the principal amount of the Securities
set forth opposite such Underwriter's name in Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Securities
and shall be made at 10:00 AM, New York City time, on March 9, 1999, or such
later reasonable date as the Underwriters and the Company shall agree upon,
which date and time may be postponed by agreement among the Underwriters 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 Underwriters for the respective
accounts of the several Underwriters against payment by the several
Underwriters of the aggregate purchase price thereof to or upon the order of
the Company by wire transfer of U.S. dollars in U.S. Federal (same day) funds
to an account specified in writing by the Company at least two business days
prior to the Closing Date. Delivery of a global certificate for the Securities
shall be made at such location as the Underwriters shall reasonably designate
at least one business day in advance of the Closing Date. The Securities shall
be registered in such names and in such denominations as the Underwriters may
request not less than two full business days in advance of the Closing Date.
The Company agrees to have a global certificate for the Securities
available for inspection by the Underwriters in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
The Company will pay all applicable state transfer taxes, if any,
involved in the transfer to the several Underwriters of the Securities to be
purchased by them from the Company and the respective Underwriters will pay any
additional state transfer taxes involved in further transfers.
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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 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
to the Prospectus unless the Company has furnished you a copy for your review
prior to filing and, except as set forth in subparagraph (b) hereof, will not
file any such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), the Company will cause the Prospectus,
properly completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period pre
scribed and will provide evidence satisfactory to the Underwriters of such
timely filing. The Company will promptly advise the Underwriters (i) when the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, shall have become effective, (ii) when the Prospectus, and
any supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (iii) when, prior to termination of the offering of
the Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Prospectus or for
any additional information, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi) 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
initiation or threatening of any proceeding for such purpose. The Company will
use all commercially reasonable efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then 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
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) prepare and file
with the Commission, subject to the second sentence of subparagraph (a) of this
Section 5, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance and (ii) supply any
supplemented Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
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(d) The Company will furnish to the Underwriters 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, as many
copies of each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Underwriters may reasonably request. The Company will pay the
expenses of printing or other production of all docu ments relating to the
offering.
(e) The Company, at its expense, will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualifications in effect so
long as required for the distribution of the Securities, provided, that in
connection therewith the Company shall not be required to qualify as a foreign
corporation, file a general consent to service of process in any state other
than in Florida, or subject itself to taxation in any jurisdiction. The Company
will pay the fees and expenses of counsel to the Underwriters in connection
with such qualifications. The Company will pay the fee of the National
Association of Securities Dealers, Inc., in connection with its review of the
offering, if applicable.
(f) The Company will not, during the period beginning at the Execution
Time and continuing to and including the Closing Date, offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company or warrants to
purchase debt securities of the Company, in either case, substantially similar
to the Securities (other than (i) the Securities and (ii) commercial paper
issued in the ordinary course of business), without the prior written consent
of Xxxxxx Xxxxxxx & Co. Incorporated.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Securities shall be subject to the accuracy
in all material respects 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 in all material respects of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company in all material respects of its obligations hereunder and to the
following additional conditions:
(a) The supplement to the Prospectus required pursuant to the
applicable paragraph of Rule 424(b) shall have been filed in the manner and
within the time period required by Rule 424(b); and no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Underwriters the opinion
of Xxxxxxxxx X. Xxxxx, Associate Counsel of Xxxxxx Corporate Services, Inc.,
dated the Closing Date, to the effect that:
(i) each of the Company and Xxxxxx International Inc., Xxxxxx
Drilling USA, Inc., Xxxxxx Offshore Drilling, Inc. and Xxxxxx Drilling
International Limited, a Delaware corporation (collectively, the
"Material Subsidiaries"), has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and is duly qualified to do
business as
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a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases properties or conducts business, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole;
(ii) all the outstanding shares of capital stock of the
Company and each Material Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable. All
outstanding shares of capital stock of each of the Material
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, any other security
interests, claims, liens or encumbrances;
(iii) to the knowledge of such counsel, there is no pending
or threatened material action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no franchise, contract or
other document of a character required to be described in the
Registration Statement or the Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(iv) such counsel has no reason to believe that at the
Effective Date the Registration Statement (other than the financial
statements and the other financial and statistical information
contained or incorporated by reference therein, as to which
information such counsel need express no comment) included any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (other than the
financial statements and the other financial and statistical
information contained or incorporated by reference therein, as to
which information such counsel need express no comment), as of its
date and as of 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 light of the
circumstances under which they were made, not misleading;
(v) no consent, approval, authorization or order of any court
or governmental agency or body is required of the consummation of the
transactions contemplated herein, 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 (as to which such counsel need
express no opinion) and such other approvals as have been obtained;
(vi) neither 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 conflict with, result in a
breach or violation of, or constitute a default under the terms of (A)
any indenture or other agreement or instrument known to such counsel
and to which the Company or any of its Significant Subsidiaries is a
party or bound, or any judgment, order or decree known to such counsel
to be applicable to the Company or any of its Significant Subsidiaries
of any court, regulatory body, administrative agency, governmental
body or
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arbitrator having jurisdiction over the Company or any of its
Significant Subsidiaries, except such as would not, either singly or
in the aggregate, have a material adverse effect upon the Company and
its subsidiaries, taken as a whole, or prevent the Company from
performing its obligations under the Underwriting Agreement, or (B)
the respective charters or bylaws of the Material Subsidiaries; and
(vii) no holders of securities of the Company have rights to
the registration of such securities under the Registration Statement.
In giving such opinion, such counsel may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible
officers of the Company and the Material Subsidiaries and of public officials.
Such opinion may be relied upon only by the Underwriters in connection with the
transactions contemplated by this Agreement, and may not be used or relied upon
by the Underwriters for any other purpose, or by any other person, firm,
corporation or entity for any purpose whatsoever, without the prior written
consent of such counsel. Such opinion may be limited to the laws of the State
of Texas and the General Corporation Law of the State of Delaware.
References in this Section 6(b) to the Prospectus include any
supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Underwriters the opinion
of Winston & Xxxxxx, special counsel for the Company, dated the Closing Date,
to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus,
and is duly qualified to do business as a foreign corporation and is
in good standing under the laws of the State of Texas;
(ii) the statements in the Prospectus Supplement under
"Description of Notes" and in the Prospectus under "Description of
Debt Securities," insofar as such statements constitute a summary of
the documents referred to therein, fairly present in all material
respects the information called for with respect to such documents;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act (except that no opinion is expressed with respect to the
Statement of Eligibility and Qualification on Form T-1 of the Trustee
filed as an exhibit to the Registration Statement), and constitutes a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms (subject to bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally and to general principles of equity, from time to time in
effect); 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;
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(iv) any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been filed 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 has been issued and no proceedings for
that purpose have been instituted or threatened and the Registration
Statement, as of its Effective Date, and the Prospectus as of its date
(other than (A) the financial statements, financial schedules and
other financial and statistical information contained therein or
excluded therefrom or (B) the part of the Registration Statement that
constitutes the Form T-1, as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act and the respective rules
thereunder;
(v) this Agreement has been duly authorized, executed and
delivered by the Company; and
(vi) neither 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 conflict with, result in a
breach or violation of, or constitute a default under any provision of
(A) applicable law, except such as would not, either singly or in the
aggregate, have a material adverse effect upon the Company and its
subsidiaries, taken as a whole, or prevent the Company from performing
its obligations under the Underwriting Agreement, or (B) the Restated
Certificate of Incorporation or By-Laws of the Company.
In rendering their opinions set forth in Section 6(c) above, such
counsel may rely, to the extent deemed advisable by such counsel, (i) as to
factual matters on certificates of officers of the Company and (ii) upon
certificates of public officials. Such counsel shall also state that such
counsel has participated in conferences with officers and representatives of
the Company, the independent public accountants of the Company and the
Underwriters and their counsel, at which conferences such counsel made
inquiries of such officers, Underwriters and accountants, discussed in detail
the contents of the Registration Statement and Prospectus and (without taking
any further action to verify independently the statements made in the
Registration Statement and the Prospectus and, except as stated in Section
6(c)(ii) above, without assuming any responsibility for the accuracy,
completeness or fairness of such statements) that nothing has come to such
counsel's attention that would lead such counsel to believe that the
Registration Statement (other than the financial statements and other financial
and statistical information contained or incorporated by reference therein, as
to which such counsel need express no comment), at the Execution Time,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading (other than the information omitted therefrom in reliance upon
Section 430A), or that the Prospectus (other than the financial statements,
financial schedules and other financial and statistical information contained
or incorporated by reference therein, as to which such counsel need express no
comment), at the time it was filed pursuant to Rule 424(b) after the Execution
Time or at the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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Such opinion shall be limited to the laws of the State of New York,
the Federal laws of the United States and the General Corporation Law of the
State of Delaware. Such opinion shall be rendered as of the Closing Date only
in connection with the Agreement and will be solely for the benefit of the
Underwriters, and may not be relied upon, nor shown to or quoted from, for any
other purpose, or to any other person, firm or corporation. References to the
Prospectus in this Section 6(c) include any supplements thereto at the Closing
Date.
(d) (i) The Company shall have furnished to the Underwriters the
opinion of Xxxxxx Xxxxxxx, special Canadian counsel to Xxxxxx Drilling
Limited, a corporation formed under the Canada Business Corporation
Act ("Nabors Limited"), substantially to the effect set forth in
sections 6(b)(i), (ii) and (vi)(B), in each case solely as such
provisions relate to Nabors Limited. Such opinion shall be limited to
the laws of Canada and the Province of Alberta, and shall otherwise be
subject to the qualifications set forth in the concluding paragraph of
Section 6(b).
(ii) The Company shall have furnished to the Underwriters the
opinion of Xxxxxx, Xxxxxx, Xxxxxx, Xxxxxxx & Xxxxxxx, special Alaska
counsel to Nabors Alaska Drilling, Inc., an Alaska corporation
("Nabors Alaska"), substantially to the effect set forth in Sections
6(b)(i), (ii) and (vi)(B), in each case solely as such provisions
relate to Nabors Alaska. Such opinion shall be limited to the laws of
the State of Alaska and shall otherwise be subject to the
qualifications set forth in the concluding paragraph of Section 6(b).
(iii) The Company shall have furnished to the Underwriters
the opinion of Xxxxxxxx & Wedge, special Nevada counsel to Sundowner
Offshore Services, Inc., a Nevada corporation ("Sundowner"),
substantially to the effect set forth in Sections 6(b)(i), (ii) and
(vi)(B), in each case solely as such provisions relate to Sundowner.
Such opinion shall be limited to the laws of the State of Nevada and
shall otherwise be subject to the qualifications set forth in the
concluding paragraph of Section 6(b).
(e) The Underwriters shall have received from Xxxxxx & Xxxxxx L.L.P.,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Underwriters 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.
(f) The Company shall have furnished to the Underwriters 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 Prospectus, any supplement to the
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied in all material respects with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
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(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge, are
threatened;
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus, there has
been no material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its subsidiaries,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus;
and
(iv) the Company is not aware of any business acquisition
which is probable of being consummated by the Company as of the date
hereof which would be required under the Act to be disclosed in the
Prospectus and is not so disclosed.
(g) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Underwriters a letter or letters, dated as of the Closing
Date, in form and substance satisfactory to the Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into
the Prospectus.
(h) 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 Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (g) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of the
Underwriters, 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) and the
Prospectus.
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by a "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) or any notice given of any intended or 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.
(j) Prior to the Closing Date, the Company shall have furnished to the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects 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 in all material respects reasonably satisfactory in form
and substance to the Underwriters 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 Underwriters. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
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The documents required to be delivered by this Section 6 shall be
delivered at the office of counsel for the Company on the Closing Date.
7. REIMBURSEMENT OF 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 upon demand
for all 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, up to a maximum of $250,000. The
Underwriters shall provide the Company with invoices or other reasonable
evidence of such expenses at or prior to the time of reimbursement.
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 any Preliminary Prospectus
or the Prospectus, 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 Underwriters specifically for inclusion therein and
provided further, that the indemnity agreement contained in this Section 8(a)
with respect to any Preliminary Prospectus shall not inure to the benefit of
any Underwriter (or any directors, officers, employees or agent thereof or any
persons controlling such Underwriter) on account of any losses, claims,
damages, liabilities or litigation arising from the sale of Securities to any
person, if such Underwriter fails to send or give a copy of the Prospectus, as
the same may then be supplemented or amended, to such person, within the time
required by the Act, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in or omitted from
such Preliminary Prospectus was corrected in the Prospectus, as then amended or
supplemented, unless such failure is the result of noncompliance by the Company
with Section 5(b)(ii) hereof. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
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(b) Each Underwriter severally 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 Underwriters
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. The Company acknowledges that the
statements set forth in the last paragraph of the cover page and under the
heading "Underwriters" in any Preliminary Prospectus and the Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus, and you, as the Underwriters, confirm that such statements are
correct.
(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 not more than one 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 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, which consent shall not be unreasonably withheld, 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.
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(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending 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 and by the Underwriters 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 shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters 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), 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 Prospectus. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. 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 Under writer, 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 provisions 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 amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate 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
amount of Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule I 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
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postponed for such period, not exceeding seven days, as the Underwriters and
the Company shall agree in order that the required changes in the Registration
Statement and the 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 Underwriters, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i)
trading in the Company's Common Stock shall have been suspended by the
Commission or the American Stock Exchange or trading in securities generally on
the New York Stock Exchange or the American Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on either of
such Exchanges, (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 any other calamity or crisis the effect of which
on financial markets is such as to make it, in the judgment of the
Underwriters, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus.
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 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 Underwriters, will be mailed,
delivered or telegraphed and confirmed to them, care of Xxxxxx Xxxxxxx & Co.
Incorporated at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at 000
Xxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention of Xxxxxx X.
Xxxxxxxx, Chairman and Chief Executive Officer.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder. No purchaser
of any of the Securities from any Underwriters shall be deemed a successor or
assign by reason merely of such purchase.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
15. COUNTERPARTS. This Agreement may be executed by one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
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16. CONSENT. The Company and the Underwriters acknowledge that Winston
& Xxxxxx, which is acting as special counsel to the Company in connection with
the offer and sale of the Securities, may act as counsel from time to time to
one or more of the Underwriters in connection with unrelated matters. The
Company and the Underwriters consent to Winston & Xxxxxx so acting as special
counsel to the Company. The Company and the Underwriters also acknowledge that
Xxxxxx & Xxxxxx L.L.P., which is acting as counsel to the Underwriters in
connection with the offer and sale of the Securities, also acts as counsel from
time to time to the Company and certain of its affiliates in connection with
unrelated matters. The Company and the Underwriters consent to Xxxxxx & Xxxxxx
L.L.P. so acting as counsel to the Underwriters.
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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,
XXXXXX INDUSTRIES, INC.
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief
Operating Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXX BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
HOWARD, WEIL, LABOUISSE, XXXXXXXXXX INCORPORATED
XXXXXXX XXXXX BARNEY INC.
XXXXXXXX & CO. INC.
BY: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ XXXXXX X. XXXXXXXXXX III
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx III
Title: Vice President
18
SCHEDULE I
UNDERWRITERS PRINCIPAL AMOUNT OF
------------ NOTES
-----
Xxxxxx Xxxxxxx & Co. Incorporated $ 65,000,000
Xxxxxx Brothers Inc. 65,000,000
Prudential Securities Incorporated 65,000,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities 32,500,000
Corporation
Howard, Weil, Labouisse, Xxxxxxxxxx 32,500,000
Incorporated
Xxxxxxx Xxxxx Barney Inc. 32,500,000
Xxxxxxxx & Co. Inc. 32,500,000
------------
Total $325,000,000
============
