EXHIBIT 1.1
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XXXXXXXXXXX INTERNATIONAL LTD.
(a Bermuda exempted company)
4.95% Senior Notes due 2013
UNDERWRITING AGREEMENT
Dated: October 2, 2003
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XXXXXXXXXXX INTERNATIONAL LTD.
(a Bermuda exempted company)
$250,000,000
4.95% Senior Notes due 2013
UNDERWRITING AGREEMENT
October 2, 2003
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Deutsche Bank Securities Inc.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxxxxxx International Ltd., a Bermuda exempted company (the
"Company"), confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Xxxxxxx Xxxxx and Deutsche Bank Securities Inc. are
acting as representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in said Schedule A of $250,000,000 aggregate principal amount
of the Company's 4.95% Senior Notes due 2013 (the "Notes"), guaranteed on an
unsecured basis (the "Guarantees") by Xxxxxxxxxxx International, Inc., a
Delaware corporation (the "Guarantor"). The Notes and the Guarantees are
hereinafter collectively referred to as the "Securities"). The Securities are to
be issued pursuant to an indenture dated as of October 1, 2003 (the "Indenture")
between the Company, the Guarantor and Deutsche Bank Trust Company Americas, as
trustee (the "Trustee"). The term "Indenture," as used herein, includes the
Board Resolution and the Officer's Certificate (as defined in the Indenture)
establishing the form and terms of the Securities pursuant to Sections 2.1 and
3.1 of the Indenture. Securities issued in book-entry form will be issued to
Cede & Co. as nominee of The Depository Trust Company ("DTC") pursuant to a
letter agreement, to be dated as of the Closing Time (as defined in Section 2(b)
hereof), among the Company, the Trustee and DTC.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
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The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-100588), including
the related preliminary prospectus or prospectuses, covering the registration of
the Securities under the Securities Act of 1933, as amended (the "1933 Act").
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus for use in connection with the offering of the
Securities used before such registration statement became effective, and any
prospectus for use in connection with the offering of the Securities that
omitted the Rule 430A Information, that was used after such effectiveness and
prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
and any schedules thereto, at the time it became effective, and including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act at such time and the Rule 430A Information, is herein called
the "Registration Statement." Any registration statement relating to the
Securities filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus in the form first furnished to the Underwriters
for use in connection with the offering of the Securities, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act at the time of the execution of this Agreement, is herein
called the "Prospectus." For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Guarantor.
The Company and the Guarantor jointly and severally represent and warrant to
each Underwriter as of the date hereof and as of the Closing Time referred to in
Section 2(b) hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company and
the Guarantor meet the requirements for use of Form S-3 under the 1933
Act. Each of the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto has become effective
under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement, any Rule 462(b) Registration Statement or
any post-effective amendment thereto has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
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Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time, the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations"), and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment
or supplement was issued and at the Closing Time, included or will
include an untrue statement of a material fact or omitted or will 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. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company by any Underwriter through Xxxxxxx
Xxxxx expressly for use in the Registration Statement (or any amendment
thereto) or to the Prospectus (or any amendment or supplement thereto).
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto complied when so filed in all material respects with
the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with
this offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time the Prospectus was
issued and at the Closing Time, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The consolidated financial
statements included in the Registration Statement and the Prospectus
present fairly in all material respects the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, shareholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified all
prepared in conformity with generally accepted accounting principles
("GAAP") (subject, in the case of interim statements, to normal
year-end audit adjustments); and the Company has no material contingent
obligation that is not disclosed in such financial statements or in the
Registration Statement or Prospectus. The supporting schedules, if any,
included in the Registration Statement present fairly in accordance
with GAAP
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the information required to be stated therein. The summary financial
information, the capitalization table and the ratio of earnings to
fixed charges included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the consolidated financial
position, shareholders' equity, results of operations or business of
the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its share capital.
(vi) Good Standing of the Company and the Guarantor. The
Company has been duly organized and is validly existing as an exempted
company in good standing under the laws of Bermuda and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement; the Guarantor has
been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement; and the Company and
the Guarantor are duly qualified as foreign corporations to transact
business and are in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failures so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each of the Company's
subsidiaries (as defined in Rule 405 of the 1933 Act Regulations) have
been duly incorporated or formed and are validly existing as
corporations, limited liability companies, limited partnerships or
other forms of entities, as the case may be, in good standing under the
laws of their respective jurisdictions of incorporation or formation,
have the requisite power and authority to own their respective
properties and conduct their respective businesses, are duly qualified
to do business and are in good standing as foreign corporations,
limited liability companies, limited partnerships or other forms of
entities in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses
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. Each of the subsidiaries of the Company that is a
"Significant Subsidiary", as such term is defined in the following
sentence, is listed (together with its jurisdiction of incorporation or
formation) on Schedule C hereto. "Significant Subsidiary" means, at any
date, a consolidated subsidiary, the shares, interests, rights to
purchase, warrants, options, participations or other equivalents
(however designated) of such entity's equity, of which are owned by the
Company and/or one or more of its subsidiaries and that either (i) has
total assets in excess of 5% of the total assets of the Company and its
consolidated subsidiaries, in each case as determined in accordance
with generally accepted accounting principles as in effect from time to
time as set forth in the opinions, statements and pronouncements of the
Accounting Principles Board of the American Institute of Certified
Public Accountants and the Financial Accounting Standards Board or (ii)
has gross net revenues in excess of 12.5% of the consolidated gross
revenues of the Company and
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its consolidated subsidiaries based, in each case, on the most recent
audited consolidated financial statements of the Company.
(viii) Capitalization. The Company has an authorized
capitalization as set forth in the Prospectus, and all of the issued
shares of the Company, have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the
description thereof contained in the Prospectus; and all of the issued
shares, share capital or other equity interests of each subsidiary of
the Company, have been duly and validly authorized and issued and are
fully paid and non-assessable and (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and the Guarantor.
(x) Authorization of the Indenture. The Indenture has been
duly authorized by the Company and the Guarantor, and duly qualified
under the 1939 Act and, when duly executed and delivered by the
Company, the Guarantor and the Trustee, will constitute a valid and
binding agreement of the Company and the Guarantor, enforceable against
the Company and the Guarantor in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(xi) Authorization of the Securities. The Securities have been
duly authorized and, at the Closing Time, will have been duly executed
by the Company and the Guarantor, as the case may be, for issuance and
sale pursuant to this Agreement. The Securities, when authenticated,
issued and delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as provided in
this Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the
Company and the Guarantor, enforceable against the Company and the
Guarantor, as the case may be, in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law),
and will be in the form contemplated by, and entitled to the benefits
of, the Indenture.
(xii) Description of the Securities and the Indenture. The
Securities and the Indenture will conform in all material respects to
the respective statements relating thereto contained in the Prospectus
and will be in substantially the respective forms filed or incorporated
by reference, as the case may be, as exhibits to the Registration
Statement.
(xiii) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is (i) in violation of its charter,
memorandum of association or bye-laws or similar governing document, as
applicable, (ii) in default, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, lease or other agreement or
instrument to which it is a party or by which it is bound or which any
of its properties or assets may be subject (collectively, "Agreements
and Instruments") or (iii) in violation of any law, ordinance,
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governmental rule, regulation or court decree to which it or its
property or assets may be subject, except with respect to (ii) or
(iii), for any such violations or defaults that would not be reasonably
likely, singly or in the aggregate, to have a Material Adverse Effect;
and the execution, delivery and performance of this Agreement, the
Indenture and the Securities and the consummation of the transactions
contemplated herein and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Prospectus under the
caption "Use of Proceeds") and compliance by the Company and the
Guarantor with their respective obligations hereunder and under the
Indenture and the Securities have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, (i) conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any subsidiary pursuant
to, the Agreements and Instruments, (ii) result in any violation of the
provisions of the charter, memorandum of association or bye-laws (or
similar governing document) of the Company or any of its Significant
Subsidiaries or (iii) result in any violation of any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations; except for such conflict, breach,
violation or default which would, for purposes of clauses (i) and (iii)
above, either individually or in the aggregate, not have a Material
Adverse Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary.
(xiv) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, which would reasonably be expected to have
a Material Adverse Effect; and there are no significant unfair labor
practice complaints pending against the Company or any of its
subsidiaries or, to the knowledge of the Company, threatened against
any of them.
(xv) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
would reasonably be expected to result in a Material Adverse Effect, or
which would reasonably be expected to materially and adversely affect
the consummation of the transactions contemplated in this Agreement or
the performance by the Company and the Guarantor of their respective
obligations hereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a
party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, would
not reasonably be expected to result in a Material Adverse Effect.
(xvi) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xvii) Possession of Intellectual Property. The Company and
its subsidiaries own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks,
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trade names, trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of their respective
businesses and have no reason to believe that the conduct of their
respective businesses will conflict with, and have not received any
notice of any claim of conflict with, any such rights of others, except
where such conflict could not reasonably be expected to have a Material
Adverse Effect.
(xviii) Absence of Manipulation. Neither the Company nor any
affiliate of the Company has taken, nor will the Company or any
affiliate take, directly or indirectly, any action which is designed to
or which has constituted or which would be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(xix) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company and
the Guarantor of their respective obligations hereunder, in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement or for
the due execution, delivery or performance of the Indenture by the
Company and the Guarantor, except (A) as may be required under the 1933
Act or the 1933 Act Regulations or state securities laws and except for
the qualification of the Indenture under the 1939 Act or (B) as have
already been made, obtained or rendered, as applicable, and except
where the failure to so make, obtain or render, singly or in the
aggregate, would not reasonably be expected to result in a Material
Adverse Effect.
(xx) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, except
where the failure so to possess would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not,
singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xxi) Title to Property. The Company and its subsidiaries have
good and indefeasible title in fee simple to all real property owned by
the Company and its subsidiaries and good and valid title to all other
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the
Prospectus or (b) would not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect; and all of the leases
and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company
or any of its subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
any subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the
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Company or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xxii) Investment Company Act. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus, will not be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xxiii) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products, asbestos-containing materials or mold
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its subsidiaries and (D) there are no
events or circumstances that would reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against
or affecting the Company or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(xxiv) Subsequent Events. Neither the Company nor any of its
subsidiaries has sustained, since the date of the latest audited
financial statements included in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Registration Statement or the
Prospectus; and, since such date, there has not been any material
change in the capital stock or long-term debt of the Company or any of
its subsidiaries, or any material adverse change or any development
involving a prospective material adverse change in the condition,
financial or otherwise, or in the earnings or business of the Company
and its subsidiaries, otherwise than as set forth or contemplated in
the Registration Statement or the Prospectus.
(xxv) Insurance. The Company and each of its subsidiaries
carry, or are covered by, insurance in such amounts and covering such
risks as they reasonably deem sufficient for the conduct of their
respective businesses and the value of their respective properties, and
neither the Company nor any subsidiary has received notice of
cancellation or non-renewal of such insurance.
(xxvi) Books and Records. Each of the Company and the
Guarantor (i) makes and keeps books and records, which accurately
reflect transactions and dispositions of its assets, (ii) maintains
internal accounting controls which provide reasonable assurance that
(A) transactions
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are executed in accordance with management's general and specific
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in
accordance with management's general and specific authorization and (D)
the recorded accountability for its assets is compared with existing
assets at reasonable intervals.
(xxvii) Foreign Corrupt Practices Act. Neither the Company nor
any of its subsidiaries, nor any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or any
of its subsidiaries, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977 or similar law, ordinance, rule or
regulation applicable to the Company and its subsidiaries; or made any
bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(xxviii) Borrowing Regulations. The Company and its
subsidiaries have not taken, and will not take, any action that might
cause this Agreement or the issuance or sale of the Securities to
violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part
221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of
the Federal Reserve System.
(xxix) Disclosure Controls and Procedures. (i) The Company has
established and maintains disclosure controls and procedures (as such
term is defined in Rules 13a-15(e) and 15d-15(e) under the 1934 Act);
(ii) such disclosure controls and procedures are designed to ensure
that information required to be disclosed by the Company in the reports
it files or submits under the 1934 Act is accumulated and communicated
to the Company's management, including its principal executive officer
and its principal financial officer, as appropriate, to allow timely
decisions regarding required disclosure; and (iii) such disclosure
controls and procedures are effective in all material respects to
perform the functions for which they were established. Since the date
of the most recent evaluation of such disclosure controls and
procedures, there have been no significant changes in internal controls
or in other factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses.
(xxx) Internal Controls. Since the date of the filing of the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30,
2003, the audit committee of the board of directors of the Company and,
to the knowledge of the Company, the Company's auditors (or persons
fulfilling the equivalent function), have not been advised of (i) any
significant deficiencies in the design or operation of internal
controls which could adversely affect the Company's ability to record,
process, summarize and report financial data nor any material
weaknesses in internal controls; and (ii) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the Company's internal controls. Since the date of
the filing of the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 2003, there have been no significant changes in
internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses. The Company has
designed and maintains internal control over financial reporting (as
such term is defined in Rules 13a-15(f) and Rules 15a-15(f) under the
1934, "Reporting Controls"), and the Reporting Controls are (i)
designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting
principles and include, without limitation, those processes
specifically referred to in Rule 13a-15(f) and Rule
9
15a-15(f) and (ii) to the knowledge of the Company, effective to
perform the functions for which they are maintained.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company or the Guarantor, as the case may be, to each Underwriter as to the
matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price set forth in Schedule B, the aggregate principal
amount of Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional principal amount of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Fulbright &
Xxxxxxxx L.L.P., 0000 XxXxxxxx, Xxxxxxx, Xxxxx 00000, or at such other place as
shall be agreed upon by the Representatives and the Company, at 9:00 A.M.
(Eastern time) on the third business day after the date hereof (unless postponed
in accordance with the provisions of Section 10), or such other time not later
than ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. Xxxxxxx Xxxxx, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
Delivery of the Securities shall be made through the facilities of DTC.
(c) Denominations; Registration. Certificates for the Securities shall
be in such denominations ($1,000 or integral multiples thereof) and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time. The Securities will be made available for
examination and packaging by the Representatives in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time.
SECTION 3. Covenants of the Company and the Guarantor. The Company and
the Guarantor jointly and severally covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company and the Guarantor, subject to Section 3(b), will comply with the
requirements of Rule 430A and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any
10
amendment or supplement to the Prospectus or any document incorporated by
reference therein or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company and the Guarantor will
promptly effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company and the Guarantor will use their reasonable best efforts
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof as soon as possible.
(b) Filing of Amendments. The Company and the Guarantor will give the
Representatives notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)) or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document without the consent of the Representatives, which consent
shall not be unreasonably withheld.
(c) Delivery of Registration Statements. The Company and the Guarantor
have furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company and the Guarantor have
delivered to each Underwriter, without charge, as many copies of each
preliminary prospectus as such Underwriter reasonably requested, and the Company
and the Guarantor hereby consent to the use of such copies for purposes
permitted by the 1933 Act. The Company and the Guarantor will furnish to each
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the
Guarantor will comply with the 1933 Act and the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations
so as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Company or the Guarantor, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
11
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company and the Guarantor will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company and the Guarantor will
furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company and the Guarantor will use
their best efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions as the Representatives may designate and to
maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the Company and the
Guarantor shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or so subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company and the Guarantor will also supply the
Underwriters with such information as is necessary for the determination of the
legality of the Securities for investment under the laws of such jurisdictions
as the Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(i) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(j) Rating of Securities. The Company and the Guarantor will take all
reasonable action necessary to enable Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P"), and Xxxxx'x Investors Service Inc.
("Moody's") to provide their respective credit ratings of the Securities.
(k) DTC. The Company and the Guarantor will cooperate with the
Representatives and use commercially reasonable efforts to permit the Securities
to be eligible for clearance and settlement through the facilities of DTC.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and the Guarantor will pay all expenses
incident to the performance of their respective obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, (iv) the
fees and disbursements of the Company's and
12
Guarantor's counsel, accountants and other advisors, (v) the qualification of
the Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus and of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities, (ix) the costs and
expenses of the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the Securities, including without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations, travel and lodging expenses of the representatives and
officers of the Company and the Guarantor and any such consultants, and the cost
of aircraft and other transportation chartered in connection with the road show,
(x) any fees payable in connection with the rating of the Securities, and (xi)
the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review, if any, by NASD
Regulation, Inc of the terms of the sale of the Securities; provided that, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of counsel, any transfer taxes on the Securities that they may sell and
the expenses of advertising any offering of the Securities made by the
Underwriters.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company and the Guarantors shall reimburse the Underwriters
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Guarantor contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company and the Guarantor of their covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
(b) Opinion of Counsel for Company.
(i) At Closing Time, the Representatives shall have received
the favorable opinion, dated as of Closing Time, of Xxxxxxx & Xxxxx
L.L.P., counsel for the Company, in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to
the effect set forth in Exhibit A-1 hereto.
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(ii) At Closing Time, the Representatives shall have received
the favorable opinion, dated as of Closing Time, of the Senior Vice
President and General Counsel for the Company and the Guarantor, in
form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters to the effect set forth in Exhibit
A-2 hereto.
(iii) At Closing Time, the Representatives shall have received
the favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxx &
Xxxxxxx, counsel for the Company, in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to
the effect set forth in Exhibit A-3 hereto.
(iv) At Closing Time, the Representatives shall have received
the favorable opinion, dated as of Closing Time, of Xxxxx Xxxx & Co.,
counsel for the Company, in form and substance reasonably satisfactory
to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect
set forth in Exhibit A-4 hereto.
(c) Opinion of Counsel for Underwriters.
(i) At Closing Time, the Representatives shall have received
the favorable opinion, dated as of Closing Time, of Fulbright &
Xxxxxxxx L.L.P., counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters
with respect to the matters set forth in clauses (i)-(vi), inclusive,
and the last paragraph of Exhibit A-1 hereto. In giving such opinion
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the
federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(ii) At Closing Time, the Representatives shall have received
the favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxxxx &
Kempe, counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters with respect
to the matters set forth in clauses (i), (ii) and (iv) of Exhibit A-3.
In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the laws of Bermuda,
upon the opinions of counsel satisfactory to the Representatives. Such
counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the consolidated
financial position, shareholders' equity, results of operations or business of
the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
the Guarantor and of the chief financial or chief accounting officer of the
Company and the Guarantor, dated as of Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company and
the Guarantor have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration
14
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to such officer's knowledge, contemplated by the
Commission.
(e) Accountants' Comfort Letters.
(i) At the time of the execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a letter
dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such
letter for each of the other 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 relating to the Company and its
subsidiaries contained in the Registration Statement and the
Prospectus.
(ii) At the time of the execution of this Agreement, the
Representatives shall have received from Deloitte & Touche LLP a letter
dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such
letter for each of the other 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 relating to Universal Compression
Holdings, Inc., a Delaware corporation, contained in the Registration
Statement and the Prospectus.
(f) Bring-down Comfort Letters.
(i) At Closing Time, the Representatives shall have received
from Ernst & Young LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e)(i) of this Section, except that the
specified date referred to shall be a date not more than two business
days prior to Closing Time.
(ii) At Closing Time, the Representatives shall have received
from Deloitte & Touche LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e)(ii) of this Section, except that the
specified date referred to shall be a date not more than two business
days prior to Closing Time.
(g) Maintenance of Rating. At Closing Time, the Securities shall be
rated at least Baa1 by Xxxxx'x and BBB+ by S&P, and the Company and the
Guarantor shall have delivered to the Representatives a letter dated within 7
business days of the Closing Time, from each such rating agency, or other
evidence satisfactory to the Representatives, confirming that the Securities
have such ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Securities or any of the
Company's or Guarantor's other debt securities by any "nationally recognized
statistical rating agency", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall
have publicly announced that it has under surveillance or review its rating of
the Securities or any debt securities of the Company or the Guarantor.
(h) Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company
and the Guarantor in connection with the issuance and sale of the Securities as
herein contemplated shall be reasonably satisfactory in form and substance to
the Representatives and counsel for the Underwriters.
15
(i) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Company at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and the Guarantor
jointly and severally agree to indemnify and hold harmless each Underwriter, its
affiliates, as such term is defined in Rule 501(b) under the 1933 Act (each, an
"Affiliate"), its selling agents and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company and the Guarantor;
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this Section 6 shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx Xxxxx expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), which
information consists solely of the information specified on Schedule D hereto;
provided further, that the Company and the Guarantor will not be liable to any
Underwriter, their Affiliates, their selling agents or any person who controls
any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act to the extent that any such loss, liability, claim, damage or
expense resulted from the fact that such Underwriter, in contravention of a
requirement of this Agreement or applicable law, sold Securities to a person to
whom such Underwriter failed to send or give, at or prior to the Closing Time, a
copy of the Prospectus, as then amended or supplemented if the Company and the
Guarantor have previously furnished copies thereof (sufficiently in advance of
the
16
Closing Time to allow for distribution by the Closing Time) to the Underwriter
and the loss, liability, claim, damage or expense of such Underwriter resulted
from an untrue statement or omission of a material fact contained in or omitted
from the preliminary prospectus which was corrected in the Prospectus as, if
applicable, amended or supplemented prior to the Closing Time and such
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person.
(b) Indemnification of Company and the Guarantor, Directors and
Officers. Each Underwriter severally agrees to indemnify and hold harmless the
Company and the Guarantor, their directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company or the
Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company or the Guarantor by such Underwriter through Xxxxxxx Xxxxx expressly for
use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), which
information consists solely of the information specified on Schedule D hereto.
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this Section
6. In the case of parties indemnified pursuant to Section 6(a) above, counsel to
the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such
action, the indemnifying party shall not be liable to the indemnified party
under this Section 6 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the indemnified party
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of the indemnified party unless (i) the employment of
such counsel has been specifically authorized by the indemnifying party in
writing or (ii) such indemnified party shall have been advised by such counsel
that there may be one or more defenses available to it that are different from
or additional to those available to the indemnifying party and in the reasonable
judgment of such counsel it is advisable for such indemnified party to employ
separate counsel or (iii) the indemnifying party has failed to assume the
defense of such action and employ counsel reasonably satisfactory to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld, delayed or
conditioned), settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of
17
such litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, an indemnifying
party shall not be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its consent if such indemnifying party, prior
to the date of settlement, (i) reimburses such indemnified party in accordance
with such request to the extent such indemnifying party considers such request
to be reasonable and (ii) provides written notice in reasonable detail to the
indemnified party of the reasons such indemnifying party considers the unpaid
balance as reasonable.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantor on the one hand and the Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Guarantor on the
one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Guarantor on the
one hand and the Underwriters on the other hand in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus bear to the aggregate
initial public offering price of the Securities as set forth on the cover of the
Prospectus.
The relative fault of the Company and the Guarantor on the one hand and
the Underwriters on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company, the Guarantor or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Guarantor and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of
18
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each Underwriter's Affiliates and selling agents shall have the
same rights to contribution as such Underwriter, and each director of the
Company or the Guarantor, each officer of the Company or the Guarantor who
signed the Registration Statement, and each person, if any, who controls the
Company or the Guarantor within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company and the Guarantor. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the principal
amount of Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of any Underwriter or its
Affiliates or selling agents, any person controlling any Underwriter, its
officers or directors or any person controlling the Company or the Guarantor,
and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus (exclusive
of any supplement thereto), any material adverse change in the consolidated
financial position, shareholders' equity, results of operations or business of
the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially
limited by the Commission, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities
19
Dealers, Inc. or any other governmental authority, or a material disruption has
occurred in commercial banking or securities settlement, or (iv) a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States or Bermuda, or (v) if a banking
moratorium has been declared by either Federal or New York or Bermuda
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
6 and 7 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time to purchase the Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased hereunder, each of
the non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be purchased hereunder, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Tax Disclosure. Notwithstanding any other provision of this
Agreement, immediately upon commencement of discussions with respect to the
transactions contemplated hereby, the Company and the Guarantor (and each
employee, representative or other agent of the Company and the Guarantor) may
disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the transactions contemplated by this Agreement
and all materials of any kind (including opinions or other tax analyses) that
are provided to the Company or the Guarantor relating to such tax treatment and
tax structure. For purposes of the foregoing, the term "tax treatment" is the
purported or claimed federal income tax treatment of the transactions
contemplated hereby, and the term "tax structure" includes any fact that may be
relevant to understanding the purported or claimed federal income tax treatment
of the transactions contemplated hereby.
20
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication as follows:
(a) if to the Company:
Xxxxxxxxxxx International Ltd.
000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
(b) if to the Guarantor:
Xxxxxxxxxxx International, Inc.
000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
(c) if to the Underwriters:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Center
New York, New York 10080
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to the general counsel or to such other person or address as any
party will specify by giving notice in writing to the other party. All notices
and other communications given to a party in accordance with the provisions of
this Agreement will be deemed to have been given (i) three business days after
the same are sent by certified or registered mail, postage prepaid, return
receipt requested, (ii) when delivered by hand or transmitted by telecopy
(answer back received) or (iii) one business day after the same are sent by a
reliable overnight courier service, with acknowledgment of receipt requested.
Notwithstanding the preceding sentence, notice of change of address will be
effective only upon actual receipt thereof.
SECTION 13. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Company, the Guarantor and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company, the Guarantor and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs, estates and legal representatives, any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company, the Guarantor and their respective successors, and
said controlling persons and officers and directors and their heirs, estates and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
21
SECTION 15. Submission to Jurisdiction and Waiver. By the execution and
delivery of this Agreement, the Company and the Guarantor submit to the
non-exclusive jurisdiction of any federal or New York State court located in the
City of New York in any suit or proceeding arising out of or relating to the
Securities or this Agreement. Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any New York State or federal court in the City of New York, or any appellate
court with respect to any of the foregoing. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court. To the extent that the Company or the Guarantor has or hereafter may
acquire any immunity from jurisdiction of any court (including, without
limitation, any court in the United States, the State of New York, Bermuda or
any political subdivision thereof) or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property or assets, this
Agreement, or any other actions to enforce judgments in respect of any thereof,
the Company and the Guarantor hereby irrevocably waive such immunity, and any
defense based on such immunity, in respect of their respective obligations under
the above-referenced documents and the transactions contemplated thereby, to the
fullest extent permitted by law.
SECTION 16. Counterparts. This Agreement may be executed 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 Agreement.
SECTION 17. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Company and the Guarantor in accordance with its
terms.
Very truly yours,
XXXXXXXXXXX INTERNATIONAL LTD.
By /s/ XXXX X. XXXXXX
-------------------------------
Title: Senior Vice President,
General Counsel and Secretary
XXXXXXXXXXX INTERNATIONAL, INC.
By /s/ XXXX X. XXXXXX
-------------------------------
Title: Senior Vice President,
General Counsel and Secretary
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/ XXXXX X. XXXXXX
--------------------------
Authorized Signatory
DEUTSCHE BANK SECURITIES INC.
By /s/ XXX XXXXXXXXXXX
--------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
23
SCHEDULE A
Principal
Amount of
Name of Underwriter Securities
------------------- ----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated $105,000,000
Deutsche Bank Securities Inc. 105,000,000
ABN AMRO Incorporated 10,000,000
RBC Dominion Securities Corporation 10,000,000
Scotia Capital (USA) Inc. 10,000,000
SunTrust Capital Markets, Inc. 10,000,000
Total $250,000,000
============
Sch A-1
SCHEDULE B
XXXXXXXXXXX INTERNATIONAL LTD.
$250,000,000 Senior Notes due 2013
1. The initial public offering price of the Securities shall be 99.811%
of the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Securities
shall be 99.161% of the principal amount thereof.
3. The interest rate on the Securities shall be 4.95% per annum.
4. The Securities will be redeemable at the option of the Company as
set forth in the terms of the Securities.
Sch B-1
SCHEDULE C
LIST OF SIGNIFICANT SUBSIDIARIES
List Company Name Jurisdiction
----------------- ------------
Xxxxxx Group Limited U.K.
Weatherford Artificial Lift Systems, Inc. Delaware, USA
Weatherford U.K. Ltd. U.K.
Xxxxxxxxxxx Xxxxxxx Xxxxxxxx Xxx.* Xxxxxxx
Xxxxxxxxxxx Xxxxxx Ltd.* Alberta, Canada
Weatherford Canada Partnership* Alberta, Canada
Weatherford Eurasia B.V. Netherlands
Weatherford Eurasia Limited U.K.
Weatherford Holding GmbH Germany
Xxxxxxxxxxx International, Inc. Delaware, USA
Weatherford Investment (Luxembourg) S.a.r.l. Luxembourg
Weatherford Luxembourg S.a.r.l. Luxembourg
Xxxxxxxxxxx Oil Tool GmbH Germany
Xxxxxxxxxxx Oil Tool Middle East Ltd. British Virgin Islands
Weatherford U.S. Holdings, L.L.C.* Delaware, USA
Weatherford U.S. L.P. Louisiana, USA
Weatherford/Lamb, Inc. Delaware, USA
WEUS Holding, Inc. Delaware, USA
Sch C-1
SCHEDULE D
INFORMATION FURNISHED TO THE COMPANY OR THE GUARANTOR
The statements set forth in the fifth and eighth paragraphs and the last
sentence of the eleventh paragraph under the caption "Underwriting" in the
Prospectus, constitute the only information furnished by or on behalf of the
Underwriters.
Sch D-1
Exhibit A-1
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
(i) The Indenture has been duly authorized on behalf of the Guarantor.
The Indenture has been duly executed and delivered by or on behalf of the
Guarantor, and constitutes the valid and binding obligations agreement of the
Guarantor, enforceable against the Guarantor in accordance with its terms, under
the Applicable Laws of the State of New York, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(ii) The Notes are in the form contemplated by the Indenture.
(iii) The Guarantee has been duly authorized on behalf of the Guarantor
and, when the Notes have been duly authenticated by the Trustee in accordance
with the provisions of the Indenture (which fact such counsel need not determine
by an inspection of the Securities) and delivered to and paid for by the
Underwriters in accordance with the
Underwriting Agreement, the Guarantee will
constitute a valid and binding obligation of the Guarantor, enforceable against
the Guarantor in accordance with its terms, under the Applicable Laws of the
State of New York, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be entitled to the
benefits of the Indenture.
(iv) The Indenture has been duly qualified under the 1939 Act.
(v) The Securities and the Indenture conform as to legal matters in all
material respects to the descriptions thereof contained in the Prospectus.
(vi) The Registration Statement has been declared effective under the
1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b); and, to
our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceeding for that purpose
has been instituted or is pending or threatened by the Commission.
(vii) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than the financial statements and supporting schedules included therein or
omitted therefrom, or other financial or statistical data included therein, and
the Trustee's Statement of Eligibility on Form T-1 (the "Form T-1"), as to which
we need express no opinion) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
A-1-1
(viii) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, or other financial or statistical data included therein, as
to which we need express no opinion), when they were filed with the Commission
complied as to form in all material respects with the requirements of the 1934
Act, and the rules and regulations of the Commission thereunder.
(ix) The information in the Prospectus under the caption "Description
of Notes", "Description of Weatherford Delaware's Debt Securities and "Certain
Tax Considerations - United States Federal Income Tax Considerations--Debt
Securities", insofar as they constitute descriptions of agreements or refer to
statements of law or legal conclusions, fairly summarize the matters referred to
therein in all material respects, subject to the qualifications and assumptions
stated therein.
(x) No consent, approval, license, authorization or validation of, or
filing, recording or registration with, any governmental authority pursuant to
the Applicable Laws of the State of Texas or the Applicable Laws of the United
States of America ("Governmental Approval") is required for the execution,
delivery and performance of the
Underwriting Agreement or the execution,
delivery and performance of the Indenture by the Company or the Guarantor or for
the sale, issuance, or delivery of the Securities.
(xi) The Company is not required, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be required, to register as an
"investment company" under the 1940 Act.
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the Federal laws of the United States of America
and the laws of the State of Texas and the State of New York. In addition, such
counsel may state that their opinion is subject to customary exceptions and
qualifications.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any amendment thereto, including the Rule 430A
Information, (except for financial statements and notes and related schedules
and other related financial and accounting and statistical data included or
incorporated by reference therein or omitted therefrom and the Form T-1, as to
which we need make no statement), at the time such Registration Statement or any
such amendment became effective, 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 or that the Prospectus
or any amendment or supplement thereto (except for financial statements and
notes and related schedules and other related financial and accounting and
statistical data included or incorporated by reference therein or omitted
therefrom and the Form T-1, as to which we need make no statement), at the time
the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits 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.
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(ii)
(i) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not reasonably be expected to result in a Material
Adverse Effect.
(ii) The Guarantor is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not reasonably be expected to result in a material
adverse change in the consolidated financial position, shareholders' equity,
results of operations or business of the Guarantor and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business (a "Guarantor Material Adverse Effect").
(iii) Each of the Significant Subsidiaries designated with an "*" on
Schedule C hereto (the "Scheduled Subsidiaries"), if a corporation, is duly
incorporated, and if a limited partnership or limited liability company, is duly
formed or organized. Each of the Scheduled Subsidiaries, if a corporation, is a
corporation validly existing in good standing under the laws of the jurisdiction
of its incorporation, with due corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, if a limited partnership, is validly existing and in good standing
(where applicable) under the laws of the jurisdiction of its organization, with
due power and authority to own, lease and operate its properties and conduct its
business as described in the Prospectus, and if a limited liability company, is
validly existing in good standing (where applicable) under the laws of the
jurisdiction of its formation, with due power and authority to own, lease and
operate its properties and conduct its business as described in the Prospectus;
and all of the outstanding shares of capital stock of each of the corporate
Scheduled Subsidiaries, have been duly authorized and validly issued, are fully
paid and non-assessable and all of the outstanding limited partnership interests
and limited liability company interests of the limited partnership and limited
liability company Scheduled Subsidiaries are held of record, directly or
indirectly, by the Company;
(iv) To my knowledge, there is no action, suit or proceeding before or
by any government, governmental instrumentality or court, domestic or foreign,
now pending or threatened against or affecting the Company or any of its
subsidiaries, or to which any of their respective properties are subject that
would reasonably be expected to result in a Material Adverse Effect, or which
could reasonably be expected to materially and adversely affect the consummation
of the transactions contemplated in the
Underwriting Agreement and the Indenture
or the performance by the Company and the Guarantor of their respective
obligations thereunder.
(v) The execution, delivery and performance of the
Underwriting
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the
Underwriting Agreement (including the issuance
and sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use Of Proceeds")
and compliance by the Company and the Guarantor with their respective
obligations under the
Underwriting Agreement, the
A-2-1
Indenture and the Securities do not and will not, whether with or without the
giving of notice or lapse of time or both, constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(xiii) of the
Underwriting Agreement)
under any indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to me, to which the Company or
any subsidiary is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any subsidiary is subject
(except for such breaches, defaults or Repayment Events that would not
reasonably be expected to have a Material Adverse Effect, or in the case of
Guarantor, a Guarantor Material Adverse Change), nor will such action result in
any violation of the provisions of the charter or by-laws of the Company's
Scheduled Subsidiaries, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to me, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their respective properties, assets or
operations.
(vi) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to my knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits to the Registration Statement other than
those described or referred to therein or filed or incorporated by reference as
exhibits thereto.
In rendering such opinion, such counsel may state that his opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the State of Texas and the General Corporation Law of the State of
Delaware. In addition, such counsel may state that his opinion is subject to
customary exceptions and qualifications.
Nothing has come to my attention that would lead me to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information, (except for financial statements and notes and related schedules
and other related financial and accounting and statistical data included or
incorporated by reference therein or omitted therefrom and the Form T-1, as to
which I need make no statement), at the time such Registration Statement or any
such amendment became effective, 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 or that the Prospectus
or any amendment or supplement thereto (except for financial statements and
notes and related schedules and other related financial and accounting data
included or incorporated by reference therein or omitted therefrom and the Form
T-1, as to which I need make no statement), at the time the Prospectus was
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or includes an untrue statement of a material fact or
omitted or omits 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.
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(iii)
(i) The Company is duly incorporated and existing under the laws of
Bermuda in good standing (meaning solely that it has not failed to make any
filing with any Bermuda governmental authority, or to pay any Bermuda government
fee or tax, which would make it liable to be struck off the Register of
Companies and thereby cease to exist under the laws of Bermuda).
(ii) The Company has the necessary corporate power and authority to
enter into and perform its obligations under the
Underwriting Agreement and the
Indenture, including the issuance and delivery of the Note, to conduct its
business and to own, lease and operate its properties as described in the
Registration Statement. The execution and delivery of the Documents by the
Company and the performance by the Company of its obligations thereunder will
not violate the memorandum of association or bye-laws of the Company nor any
applicable law, regulation, order or decree in Bermuda.
(iii) The Company has taken all corporate action required to authorise
its execution, delivery and performance of the Documents, including the issuance
of the Note, pursuant to Bermuda law. The Documents have been duly executed and
delivered by or on behalf of the Company, and constitute the valid, binding and
enforceable obligations of the Company in accordance with the terms thereof.
(iv) No order, consent, approval, licence, authorisation or validation
of or exemption by any government or public body or authority of Bermuda or any
sub-division thereof is required to authorise or is required in connection with
the execution, delivery, performance and enforcement of the Documents, including
the issue and delivery of the Note, except such as have been duly obtained in
accordance with Bermuda law.
(v) It is not necessary or desirable to ensure the enforceability in
Bermuda of the Documents that they be registered in any register kept by, or
filed with, any governmental authority or regulatory body in Bermuda. However,
to the extent that any of the Documents creates a charge over assets of the
Company, it may be desirable to ensure the priority in Bermuda of the charge
that it be registered in the Register of Charges in accordance with Section 55
of the Companies Xxx 0000. On registration, to the extent that Bermuda law
governs the priority of a charge, such charge will have priority in Bermuda over
any unregistered charges, and over any subsequently registered charges, in
respect of the assets which are the subject of the charge. A registration fee of
$468 will be payable in respect of the registration.
While there is no exhaustive definition of a charge under Bermuda law, a charge
normally has the following characteristics:
(1) it is a proprietary interest granted by way of security
which entitles the chargee to resort to the charged property only for
the purposes of satisfying some liability due to the chargee (whether
from the chargor or a third party); and
(2) the chargor retains an equity of redemption to have the
property restored to him when the liability has been discharged.
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However, as the Documents are governed by the Foreign Laws, the question of
whether they would possess these particular characteristics would be determined
under the Foreign Laws.
(vi) The Documents will not be subject to ad valorem stamp duty in
Bermuda and no registration, documentary, recording, transfer or other similar
tax, fee or charge is payable in Bermuda other than as stated in paragraph 5
hereof in connection with the execution, delivery, filing, registration or
performance of the Documents or in connection with the admissibility in evidence
thereof (other than ordinary court filing fees).
(vii) The Company has received an assurance from the Ministry of
Finance under the Exempted Undertakings Tax Protection Act, 1966 that in the
event of there being enacted in Bermuda any legislation imposing tax computed on
profits or income or computed on any capital asset, gain or appreciation, or any
tax in the nature of estate duty or inheritance tax, then the imposition of any
such tax shall not until 28 March 2016 be applicable to the Company or any of
its operations or its shares, debentures or other obligations except insofar as
such tax applies to persons ordinarily resident in Bermuda or to tax payable in
accordance with the provisions of the Land Tax Xxx 0000 or otherwise payable in
relation to any land leased to the Company.
(viii) Based solely upon a review of the register of members of the
Company dated [ ] 2003, certified by the [Assistant] Secretary of the
Company on [ ] 2003, the issued shares of the Company are validly issued,
fully paid and non-assessable (which expression when used herein means that no
further sums are required to be paid by the holders thereof in connection with
the issue of such shares). The issued shares of the Company are not subject to
any statutory pre-emptive or similar rights.
(ix) The statements contained (a) in the Prospectus contained in the
Registration Statement under the sections "Capitalization" "Description of Share
Capital" and "Certain Tax Considerations - Bermuda Tax Considerations", and (b)
in "Item 15 - Indemnification of Directors and Officers" of the Registration
Statement, to the extent that they constitute statements of Bermuda law are
accurate in all material respects.
(x) Based solely on a search of the public records in respect of the
Company maintained at the offices of the Registrar of Companies at [ ] a.m.
on [ ] 2003 (which would not reveal details of matters which have not been
lodged for registration or have been lodged for registration but not actually
registered at the time of our search) and a search of the Cause Book of the
Supreme Court of Bermuda conducted at [ ] a.m. on [ ] 2003
(which would not reveal details of proceedings which have been filed but not
actually entered in the Cause Book at the time of our search), no steps have
been, or are being, taken in Bermuda for the appointment of a receiver or
liquidator to, or for the winding-up, dissolution, reconstruction or
reorganisation of, the Company.
(xi) The choice of the Foreign Laws as the governing law of the
Documents is a valid choice of law and would be recognised and given effect to
in any action brought before a court of competent jurisdiction in Bermuda,
except for those laws (i) which such court considers to be procedural in nature,
(ii) which are revenue or penal laws or (iii) the application of which would be
inconsistent with public policy, as such term is interpreted under the laws of
Bermuda. The submission in the Underwriting Agreement and the Indenture to the
non-exclusive jurisdiction of the Foreign Courts is valid and binding upon the
Company.
(xii) The courts of Bermuda would recognise as a valid judgment, a
final and conclusive judgment in personam obtained in the Foreign Courts against
the Company based upon the Documents under which a sum of money is payable
(other than a sum of money payable in respect of multiple damages, taxes or
other charges of a like nature or in respect of a fine or other penalty) and
would give a
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judgment based thereon provided that (a) such courts had proper jurisdiction
over the parties subject to such judgment, (b) such courts did not contravene
the rules of natural justice of Bermuda, (c) such judgment was not obtained by
fraud, (d) the enforcement of the judgment would not be contrary to the public
policy of Bermuda, (e) no new admissible evidence relevant to the action is
submitted prior to the rendering of the judgment by the courts of Bermuda and
(f) there is due compliance with the correct procedures under the laws of
Bermuda.
(xiii) The authorised capital of the Company conforms, as to legal
matters, to the description thereof contained in the prospectus contained in the
Registration Statement in all material respects.
(xiv) There is no income or other tax of Bermuda imposed by withholding
or otherwise on any payment to be made by the Company to the holder of the Note.
(xv) The Company has been designated as non-resident of Bermuda for the
purposes of the Exchange Control Act, 1972 and, as such, is free to acquire,
hold, transfer and sell foreign currency (including the payment of dividends or
other distributions) and securities without restriction.
(xvi) The Company is not entitled to any immunity under the laws of
Bermuda, whether characterised as sovereign immunity or otherwise, from any
legal proceedings to enforce the Documents in respect of itself or its assets or
property.
(xvii) The obligations of the Company under the Note will rank at least
pari passu in priority of payment with all other unsecured unsubordinated
indebtedness of the Company, other than indebtedness which is preferred by
virtue of any provision of the laws of Bermuda of general application.
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Xxxxxxx X-0
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(iv)
(i) The information in the Prospectus under the caption "Certain Tax
Considerations - Barbados Tax Considerations", insofar as such statements
describe matters of Barbados law, summaries of legal matters, documents or legal
conclusions constitute a fair summary thereof that is accurate in all material
respects.
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the laws of Barbados. In addition, such counsel
may state that its opinion is subject to customary exceptions and
qualifications.
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