STATOILHYDRO ASA Debt Securities fully and unconditionally guaranteed by StatoilHydro Petroleum AS (a wholly-owned subsidiary of StatoilHydro ASA) Underwriting Agreement Standard Provisions
EXHIBIT 1.1
STATOILHYDRO ASA
Debt Securities
fully and unconditionally guaranteed by StatoilHydro Petroleum AS
(a wholly-owned subsidiary of StatoilHydro ASA)
fully and unconditionally guaranteed by StatoilHydro Petroleum AS
(a wholly-owned subsidiary of StatoilHydro ASA)
Underwriting Agreement Standard Provisions
________, 2009
To the Representatives named from time to time in the
applicable Pricing Agreement hereinafter described
applicable Pricing Agreement hereinafter described
Ladies and Gentlemen:
From time to time StatoilHydro ASA, a public limited company incorporated under the laws of
the Kingdom of Norway (“StatoilHydro” or the “Company”) and StatoilHydro Petroleum AS, a limited
company incorporated under the laws of the Kingdom of Norway (the “Guarantor”), propose to enter
into one or more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex I hereto,
with such additions and deletions as the parties thereto may determine, and the Company, subject to
the terms and conditions stated herein and therein, proposes to issue and sell to the several firms
named in Schedule I to the applicable Pricing Agreement (such firms constituting the “Underwriters”
with respect to such Pricing Agreement and the securities specified therein) certain of its debt
securities (the “Securities”) specified in Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, the “Designated Securities”) which are to have endorsed thereon the
Guarantees (as defined below), such Securities to be issued under the Indenture (as defined below).
The Securities shall be fully and unconditionally guaranteed by the Guarantor as to the due and
prompt payment of the principal of (and premium, if any) and interest (including additional
amounts, if any, and sinking fund payments, if any) on the Securities when and as the same shall
become due and payable (the “Guarantees” and each a “Guarantee”).
The terms and rights of any particular issuance of Designated Securities shall be as specified
in the Pricing Agreement relating thereto and in or pursuant to the indenture (the “Indenture”)
identified in such Pricing Agreement. The Securities may have varying designations, maturities,
rates and times of payment of interest, selling prices and redemption and other terms.
1. Particular sales of Designated Securities may be made from time to time to the Underwriters
of such Securities, for whom the firms designated as representatives of the Underwriters of such
Securities in the applicable Pricing Agreement relating thereto will act as representatives (the
“Representatives”). The term “Representatives” also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation of any of the
Underwriters to purchase any of the Securities except as set forth in a Pricing Agreement, it being
understood that the obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the
applicable Pricing Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such Designated Securities, the
initial public offering price of such Designated Securities, the purchase price to the Underwriters
of such Designated Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, the principal amount of such Designated
Securities to be purchased by each Underwriter and the underwriting discount and/or commission, if
any, payable to the Underwriters with respect thereto and shall set forth the date, time and manner
of delivery of such Designated Securities and payment therefor. The applicable Pricing Agreement
shall also specify (to the extent not set forth in the Indenture and the Registration Statement and
Prospectus (as defined below) with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in counterparts) and
may be evidenced by an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.
2. Each of the Company and the Guarantor hereby jointly and severally represents and warrants
to, and agrees with each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities
Act of 1933, as amended (the “Securities Act”), on Form F-3 (Registration No. 333-143339) relating
to the Securities and the related Guarantees to be issued from time to time by the Company has been
filed by the Company and the Guarantor with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the date of the applicable Pricing Prospectus
(as defined below); such registration statement and any post-effective amendment thereto became
effective on filing; no stop order suspending the effectiveness of such registration statement or
any part thereof has been issued and no proceeding for such purpose has been initiated or, to the
knowledge of either the Company or the Guarantor, threatened by the Commission; and no notice of
objection of the Commission to the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the
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Securities Act has been received by the Company or the Guarantor. For purposes of this
Agreement:
(i) the base prospectus filed as part of such registration statement, in the form in
which it has most recently been filed with the Commission on or prior to the date of the
applicable Pricing Agreement, is hereinafter called the “Base Prospectus”;
(ii) any preliminary form of prospectus (including any preliminary prospectus
supplement) relating to the Designated Securities filed with the Commission pursuant to
Rule 424(b) under the Securities Act is hereinafter called a “Preliminary Prospectus”;
(iii) the various parts of such registration statement, including all exhibits
thereto but excluding Form T-1 and including any prospectus supplement relating to the
Securities and the related Guarantees that is filed with the Commission and deemed by
virtue of Rule 430B to be part of such registration statement, each as amended at the time
such part of the registration statement became effective, are hereinafter collectively
called the “Registration Statement”;
(iv) the Base Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in the applicable Pricing Agreement with respect to the
Designated Securities), is hereinafter called the “Pricing Prospectus”;
(v) the Base Prospectus, as amended and supplemented by any final prospectus
supplement relating to the Designated Securities and the related Guarantees filed with the
Commission pursuant to Rule 424(b) under the Securities Act in accordance with Section
5(a) hereof is hereinafter called the “Prospectus”;
(vi) any reference in this Agreement to the Registration Statement, the Base
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein pursuant to
Item 6 of Form F-3 under the Securities Act which were filed under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and incorporated therein, in each case on or
before the effective date of the Registration Statement or the date of such Base
Prospectus, Pricing Prospectus, Preliminary Prospectus or Prospectus, as the case may be;
(vii) any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and
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(viii) the “Applicable Time” is the time specified as such in the applicable Pricing
Agreement with respect to the Designated Securities.
(b) No order preventing or suspending the use of any Preliminary Prospectus or any “issuer
free writing prospectus” as defined in Rule 433 under the Securities Act relating to the Designated
Securities and the related Guarantees (an “Issuer Free Writing Prospectus”) has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder,
and did 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, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in such Preliminary
Prospectus in reliance upon and in conformity with information furnished in writing to the Company
or the Guarantor by an Underwriter of Designated Securities through the Representatives expressly
for use therein.
(c) The Pricing Prospectus, as supplemented by any final term sheet prepared and filed
pursuant to Section 5(a) hereof and any Issuer Free Writing Prospectus listed in Schedule III to
the applicable Pricing Agreement (collectively, the “Pricing Disclosure Package”) as of the
Applicable Time, did not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on
Schedule III to the applicable Pricing Agreement (if any) does not conflict with the information
contained or incorporated by reference in the Registration Statement, the Pricing Prospectus or the
Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and, taken together
with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement
of a material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to statements or omissions in the
Pricing Disclosure Package or made in an Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished to the Company or the Guarantor in writing by an Underwriter
of Designated Securities through the Representatives expressly for use therein.
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
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required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder 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, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and warranty shall not apply
to any statements or omissions in the documents incorporated by reference in the Pricing Prospectus
and Prospectus made in reliance upon and in conformity with information furnished to the Company or
the Guarantor in writing by an Underwriter of Designated Securities through the Representatives
expressly for use therein; and no such documents were filed with the Commission since the
Commission’s close of business on the business day immediately prior to the date of the applicable
Pricing Agreement, except as set forth on Schedule III to the applicable Pricing Agreement.
(e) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, in all material respects
to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder and do not and will not, as of the applicable effective date as to
each part of the Registration Statement and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, 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, in
the light of the circumstances in which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company or the Guarantor by an
Underwriter of Designated Securities through the Representatives expressly for use therein.
(f) (i) At the time of the filing of the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company
or any person acting on its behalf (within the meaning, for this sub-section (f) only, of Rule
163(c) under the Securities Act) made any offer relating to the Securities in reliance on the
exemption provided for in Rule 163 under the Securities Act, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Securities Act.
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(g) At the earliest time after the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the
Securities Act) of the Securities, the Company was not an “ineligible issuer” as defined in Rule
405 under the Securities Act.
(h) Since the respective dates as for which information is given in the Registration Statement
and the Pricing Prospectus, there has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole other than as set forth in the
Registration Statement and the Pricing Prospectus.
(i) Each of the Company and the Guarantor has been duly incorporated, and the Company is
validly existing as a public limited company (allmennaksjeselskap) under the laws of the Kingdom of
Norway, and the Guarantor is validly existing as a limited company (aksjeselskap) under the laws of
the Kingdom of Norway, and each of the Company and the Guarantor has the corporate power and
authority to own its property and to conduct its business as described in the Registration
Statement and the Pricing Prospectus.
(j) The Company has an authorized capitalization as set forth in the Pricing Prospectus, and
all of the issued shares of capital stock of the Company have been duly and validly authorized and
issued and are fully paid.
(k) Prior to the issuance of Designated Securities, the applicable Pricing Agreement will be
duly authorized, executed and delivered by the Company and the Guarantor.
(l) Prior to the date of the applicable Pricing Agreement, the Securities will be duly
authorized by the Company, and, when issued and delivered pursuant to the applicable Pricing
Agreement, the applicable Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of the Company entitled to
the benefits of the Indenture under which they are to be issued; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and, assuming due authorization,
execution and delivery by the Trustee, constitutes a valid and legally binding instrument of, and
is enforceable against each of the Company and the Guarantor in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general equity principles;
and the Designated Securities and the Indenture conform to the descriptions thereof contained in
the Pricing Disclosure Package with respect to the issuance of Designated Securities.
(m) Prior to the date of the applicable Pricing Agreement, the Guarantees will be duly
authorized by the Guarantor and, when the Designated
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Securities are executed, issued and delivered by the Company and the Guarantee endorsed
thereon as contemplated hereby and by the Pricing Agreement with respect to the Designated
Securities and the Indenture, the Guarantees will have been duly endorsed thereon and will
constitute valid and binding obligations of the Guarantor enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights and to general
equity principles.
(n) The issue and sale of the Designated Securities and the related Guarantees, the execution
and delivery by the Company and the Guarantor, as the case may be, of, and the performance by the
Company and the Guarantor of their respective obligations under, all of the provisions of the
Designated Securities, the Guarantees, the Indenture, this Agreement and any Pricing Agreement and
the consummation of the transactions herein and therein contemplated will not contravene or result
in a breach or violation of (i) the Articles of Association of the Company or the Guarantor;
(ii) any agreement or other instrument binding upon the Company, the Guarantor or any of their
respective significant subsidiaries (as defined in Rule 405 under the Securities Act) (each a
“Significant Subsidiary”), or to which any assets of the Company, the Guarantor or any Significant
Subsidiary is subject, that is material to the Company and its subsidiaries, taken as a whole; or
(iii) any statute, rule, regulation, judgment, order or decree of any government or governmental
agency or body, or any court of the Kingdom of Norway, the European Economic Area or the United
States (each, a “Governmental Agency”) having jurisdiction over the Company, the Guarantor or any
Significant Subsidiary, except statutes, rules, regulations, judgments, orders or decrees the
contravention, breach or violation of which would not have a material adverse effect on the
business, financial condition or results of operations of the Company and its subsidiaries, taken
as a whole (a “Material Adverse Effect”), and which would not affect the due authorization,
execution, validity, binding effect or enforceability of this Agreement, any Pricing Agreement, the
Indenture, the Designated Securities or the Guarantees relating to the Designated Securities; and
no consent, approval, authorization or order of, or qualification with, any Governmental Agency is
required for the performance by the Company or the Guarantor of its obligations under this
Agreement and the applicable Pricing Agreement, the Indenture, the Designated Securities or the
Guarantees relating to the Designated Securities, except such as have been obtained under the
Securities Act and the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Designated Securities by the Underwriters.
(o) The statements set forth in the Pricing Prospectus and the Prospectus under the captions
“Description of the Debt Securities and Guarantees”, “Taxation”, “Plan of Distribution” and
“Underwriting”, and in each case when read together with the final term sheet prepared and filed
pursuant to Section 5(a) hereof and insofar as they purport to describe the provisions of the
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laws and documents referred to therein, are accurate and complete in all material respects.
(p) Other than as set forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending or, to the best knowledge of the Company, threatened to which the Company, or
any of its subsidiaries is a party or to which any of the assets of the Company, or any of its
subsidiaries is subject, which would individually or in the aggregate be reasonably expected to
have a Material Adverse Effect; and, to the best of the Company’s knowledge, no such proceedings
are threatened or contemplated by any Governmental Authority or threatened by others.
(q) Neither the Company nor the Guarantor is, and after giving effect to each offering and
sale of the Designated Securities and the application of the proceeds thereof, will be, required to
register as an “investment company” as such term is defined in the U.S. Investment Company Act of
1940, as amended.
(r) Except as described in the Pricing Prospectus, no stamp or other issuance or transfer
taxes or duties or similar fees or charges are payable by or on behalf of the Underwriters to the
Kingdom of Norway or any political subdivision or taxing authority thereof or therein in connection
with (i) the issuance, sale and delivery by the Company of the Designated Securities to or for the
respective accounts of the Underwriters or (ii) the sale and delivery by the Underwriters of the
Designated Securities in accordance with the terms of this Agreement and in the manner contemplated
by the Pricing Prospectus and the Prospectus.
(s) The Company and its subsidiaries possess all certificates, authorizations, orders,
licenses and permits of and from, and have made all filings with, any Governmental Agency having
jurisdiction over the Company and any of its subsidiaries necessary to conduct its business as
presently conducted, except as set forth in the Pricing Prospectus and except to the extent that
the failure to possess all such certifications, authorizations, orders, licenses and permits, or to
have made such filings, would not have a Material Adverse Effect.
(t) Except as disclosed in the Pricing Prospectus, to the best of the Company’s knowledge
after due inquiry, there are no costs or liabilities associated with any and all applicable laws
and regulations relating to the protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”) (including,
without limitation, any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third parties) which would
have a Material Adverse Effect.
(u) Neither the Company nor the Guarantor has taken, directly or indirectly, any action which
was designed to or which has constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of
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the price of any security of the Company to facilitate the sale or resale of the Designated
Securities other than in compliance with applicable laws.
(v) The consolidated financial statements of the Company, and the related notes thereto,
included or incorporated by reference in the Pricing Prospectus and the Prospectus present fairly
the consolidated financial position of the Company and its subsidiaries as at the respective dates
or for the respective periods to which they apply and such financial statements have been prepared
in accordance with generally accepted accounting principles applied on a consistent basis, except
as stated in the Pricing Prospectus.
(w) Ernst & Young, who have certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the Securities Act and the rules
and regulations of the Commission thereunder and the standards of the Public Company Accounting
Oversight Board.
(x) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision, 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. The Company’s internal
control over financial reporting is effective and the Company, after reasonable investigation, is
not aware of any material weaknesses in its internal control over financial reporting.
(y) The Company has instituted and maintains controls and procedures designed to ensure, at a reasonable assurance level, compliance in all material respects with applicable anti-money laundering statutes of all United States and Norwegian
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency in the United States or
Norway.
(z) The Company maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company, and its subsidiaries is made known to the Company’s principal executive officer and
principal financial officer by others within those entities; and such disclosure controls and
procedures are effective.
3. Upon the execution of the Pricing Agreement applicable to any Designated Securities, the
several Underwriters propose to offer such Designated Securities for sale upon the terms and
conditions set forth in the Prospectus.
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4. Designated Securities to be purchased by each Underwriter pursuant to the applicable
Pricing Agreement, in the form specified in such Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives may request upon at least
forty-eight hours’ prior notice to the Company, shall be delivered by or on behalf of the Company,
to the Representatives for the account of such Underwriter, against payment by such Underwriter or
on its behalf of the purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company at least forty-eight hours in advance, all in the manner and at
the place and time and date specified in such Pricing Agreement or at such other place and time and
date as the Representatives and the Company may agree upon in writing, such time and date being
herein called the “Time of Delivery” for such Designated Securities.
5. Each of the Company and the Guarantor jointly and severally agrees with each of the several
Underwriters of any Designated Securities:
(a) To prepare the Prospectus in relation to the applicable Designated Securities and the
related Guarantees in a form approved by the Representatives, such approval not to be unreasonably
withheld, and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later
than the Commission’s close of business on the second business day following the execution and
delivery of the applicable Pricing Agreement or, if applicable, such earlier time as may be
required by Rule 424(b); (ii) subject to the filing requirement referred to in sub-clause (i) to
make no further amendment or any supplement to the Registration Statement, the Base Prospectus, the
Pricing Prospectus or the Prospectus after the date of the applicable Pricing Agreement and prior
to the Time of Delivery for the Designated Securities which shall have been reasonably disapproved
by the Representatives for such Designated Securities promptly after reasonable notice thereof;
(iii) to advise the Representatives promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; (iv) to prepare the final term sheet,
substantially in the form approved by the Representatives, to file such final term sheet pursuant
to Rule 433(d) under the Securities Act within the time required by such rule and to file any other
material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the
Securities Act; (v) to file promptly all reports required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale of such Designated
Securities, and during such same period to advise the Representatives, promptly after the Company
or the Guarantor receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has
been filed with the Commission, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus or free writing prospectus relating to the
Designated Securities and the related Guarantees, of the suspension of the qualification of such
Securities and related Guarantees for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such
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purpose, or of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and (vi) in the event of the
issuance of any such stop order or of any such order preventing or suspending the use of any
prospectus or free writing prospectus relating to the Designated Securities and the related
Guarantees or suspending any such qualification, to promptly use its best efforts to obtain the
withdrawal of such order.
(b) If required by Rule 430B(h) under the Securities Act, to prepare a form of prospectus in a
form to which the Representatives do not reasonably object and to file such form of prospectus
pursuant to Rule 424(b) under the Securities Act not later than may be required by such rule and to
make no further amendment or supplement to such form of prospectus which shall be disapproved by
the Representatives after reasonable notice thereof.
(c) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the
Registration Statement any of the Securities remain unsold by the Underwriters, to file, if it has
not already done so and is eligible to do so, a new automatic shelf registration statement relating
to the Securities in a form satisfactory to the Representatives. If at the Renewal Deadline either
the Company or the Guarantor is no longer eligible to file an automatic shelf registration
statement, it will, if it has not already done so, file a new shelf registration statement relating
to the Securities and the Guarantees in a form satisfactory to the Representatives and will use
reasonable efforts to cause such registration statement to be declared effective within 180 days
after the Renewal Deadline, and it will take all other action necessary to permit the public
offering and sale of the Securities and the Guarantees to continue as contemplated in the expired
registration statement relating to the Securities and the Guarantees. References in this Agreement
to the Registration Statement shall include any such new automatic shelf registration statement or
any such new shelf registration statement, as the case may be.
(d) To endeavor to qualify the Designated Securities for offer and sale under the securities
laws of such U.S. jurisdictions as the Representatives may reasonably request and to comply with
such laws so as to permit the continuance of sales and dealings therein for as long as may be
necessary to complete the distribution or sale of the Designated Securities; provided, however,
that in connection therewith neither the Company nor the Guarantor shall be required to (i) qualify
as a foreign corporation or other entity or as an underwriter of securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) to file a general consent
to service of process in any U.S. jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(e) To furnish the Underwriters with copies of the Prospectus, as amended or supplemented, in
New York City in such quantities as the Representatives may reasonably request, and, if the
delivery of a prospectus (or in
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lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at
any time in connection with the offering or sale of such Designated Securities prior to the
expiration of nine months after the time of issue of the Prospectus and if at such time any event
shall have occurred as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made
when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the
Securities Act) is delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the Securities Act,
the Exchange Act, the Trust Indenture Act, to notify the Representatives and upon their request to
file such document and to prepare and furnish without charge to each Underwriter and to any dealer
in securities as many copies as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such statement or omission
or effect such compliance; provided, however, that in case any Underwriter is required to deliver a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) in
connection with the offering or sale of Designated Securities at any time more than 90 days after
the date of the applicable Pricing Agreement, the cost of such preparation and furnishing of such
amended or supplemented Prospectus shall be borne by the Underwriters of the Designated Securities.
(f) To make generally available to the Company’s security holders as soon as practicable an
earnings statement of the Company (which need not be audited) complying with Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder.
(g) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Securities Act and otherwise in accordance with Rules 456(b)
and 457(r) under the Securities Act.
(h) None of the proceeds from the sale of Securities will be lent to, invested in, or
otherwise paid to or used for the benefit of any person or country, including, without limitation,
Iran, any agent of Iran, any person in Iran, or any commercial, industrial or other project in
Iran, which at the time of the loan, investment or transaction is subject to U.S. Economic
Sanctions. For the purpose of this paragraph, “U.S. Economic Sanctions” means any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury.
(i) Not to solicit any offer to buy or offer to sell the Securities and the related Guarantees
in the Kingdom of Norway in any way that would constitute an offer to the public within the meaning
of the Norwegian Securities Trading Act
- 12 -
of 2007 (the “Norwegian Securities Trading Act”), except as permitted in accordance with
Section 7.2 of such act.
6. (a) Each of the Company and the Guarantor represents and agrees that, without the prior
written consent of the Underwriters, other than the final term sheet prepared and filed pursuant to
Section 5(a) hereof, it has not made and will not make any offer relating to the Designated
Securities that (i) would constitute an “issuer free writing prospectus,” as defined in Rule 433
under the Securities Act or (ii) would otherwise constitute a “free writing prospectus” as defined
in Rule 405 under the Securities Act, required to be filed with the Commission.
(b) Each Underwriter represents and agrees that, without the prior written consent of the
Company and the Representatives, it has not made and will not make any offer relating to the
Designated Securities that (i) would constitute an “issuer free writing prospectus,” as defined in
Rule 433 under the Securities Act or (ii) would otherwise constitute a “free writing prospectus” as
defined in Rule 405 under the Securities Act, required to be filed with the Commission; provided,
however, that the Company and the Guarantor consent to the use by each Underwriter of a free
writing prospectus that contains only (i) information describing the preliminary terms of the
Designated Securities or their offering which, in their final form, will not be inconsistent with
the final term sheet of the Company and the Guarantor prepared and filed pursuant to Section 5(a)
hereof and (ii) information that describes the final terms of the Designated Securities or their
offering and that is included in the final term sheet of the Company and the Guarantor prepared and
filed pursuant to Section 5(a) hereof.
(c) Any such free writing prospectus the use of which has been consented to by the Company,
the Guarantor or the Underwriters (including the final term sheet prepared and filed pursuant to
Section 5(a) hereof) will be listed in Schedule III applicable to the Pricing Agreement.
(d) The Company represents and agrees that it has complied and will comply with the
requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and legending.
(e) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information contained or incorporated by reference in the Registration
Statement, the Pricing Prospectus or the Prospectus or, when taken together with the Pricing
Prospectus, would include an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and,
if requested by the Representatives, the Company will prepare and furnish without charge to each
Underwriter an Issuer
- 13 -
Free Writing Prospectus or other document which will correct such conflict, statement or
omission; except that the obligations set forth in this paragraph 6(e) do not apply to statements
or omissions in an Issuer Free Writing Prospectus based upon information concerning any Underwriter
furnished to the Company or the Guarantor in writing by such Underwriter through the
Representatives expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel
and accountants in connection with the registration of the Securities and the related Guarantees
under the Securities Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus, the Prospectus and any Issuer
Free Writing Prospectus and amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of printing or otherwise producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any Blue
Sky and Legal Investment Memoranda, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of the Designated
Securities and the related Guarantees; (iii) any fees charged by securities rating services for
rating the Designated Securities; (iv) filing fees incident to, and the reasonable fees and
disbursements of counsel for the Underwriters in connection with, any required review by the US
Financial Industry Regulatory Authority of the terms of the sale of the Designated Securities and
the related Guarantees; (v) the cost of preparing the Designated Securities and the related
Guarantees; (vi) the reasonable fees and expenses of any Trustee and any agent of any Trustee and
the reasonable fees and disbursements of counsel for any Trustee in connection with any Indenture
and the Designated Securities; (vii) any fees charged by rating agencies in connection with the
rating of the Designated Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically provided for in this
Section 7. It is understood, however, that, except as provided in this Section, and Sections 9 and
13 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Designated Securities by them, and any
advertising expenses connected with any offers they may make.
8. The several obligations of the Underwriters under this Agreement are subject to the
following conditions:
(a) The representations and warranties of each of the Company and the Guarantor contained in
this Agreement are true and correct on and as of the Time of Delivery as if made on and as of the
Time of Delivery and each of the Company and the Guarantor shall have complied, in all material
respects, with all of its obligations to be performed hereunder and shall have satisfied all of the
conditions on its part to be performed hereunder or satisfied on or prior to the Time of Delivery.
- 14 -
(b) The Prospectus in relation to the applicable Designated Securities and the related
Guarantees shall have been filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and regulations under the Securities Act; any
final term sheet contemplated by Section 5(a) hereof, and any other material required to be filed
by the Company and the Guarantor pursuant to Rule 433(d) under the Securities Act shall have been
filed with the Commission within the applicable time period prescribed for such filing by the rules
and regulations under the Securities Act; no stop order suspending the effectiveness or preventing
the use of the Registration Statement or any part thereof, the Prospectus or any Issuer Free
Writing Prospectus shall be in effect and no proceedings for such purpose shall be pending before
or, to the knowledge of the Company or the Guarantor, threatened by the Commission; and all
requests for additional information on the part of the Commission shall have been complied with to
the reasonable satisfaction of the Representatives.
(c) On or after the Applicable Time and prior to the Time of Delivery,
(i) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any of the
Company’s securities by any “nationally recognized statistical rating organization” as
such term is defined for purposes of Rule 463(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the business, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole, other than as set forth in the Pricing
Prospectus, that is so material and adverse as to make it, in the reasonable judgment of
the Representatives (after consultation with the Company), impracticable or inadvisable to
market the Designated Securities on the terms and in the manner contemplated in the
Prospectus.
(d) The Underwriters shall have received on the Time of Delivery certificates, dated the Time
of Delivery and signed by an executive officer of the Company and the Guarantor, to the effect set
forth in sub-sections (a) and, (b) above and as to the absence of a material adverse change, or any
development reasonably expected to result in a prospective material adverse change in the business,
financial condition or results of operations of the Company and its subsidiaries taken as a whole.
The officer signing and delivering such certificate may rely upon the best of his knowledge.
(e) The Underwriters shall have received on the Time of Delivery an opinion of the Company’s
Senior Legal Counsel dated the Time of Delivery, to the effect that:
- 15 -
(i) each of the Company and the Guarantor has been duly incorporated, the Company is
validly existing as a public limited company (allmennaksjeselskap) under the laws of the
Kingdom of Norway, the Guarantor is validly existing as a limited company (aksjeselskap)
under the laws of the Kingdom of Norway, and each of the Company and the Guarantor has the
corporate power and authority to own its property and to conduct its business as described
in the Registration Statement, Pricing Prospectus and the Prospectus as amended or
supplemented;
(ii) the Pricing Agreement with respect to the Designated Securities has been duly
authorized, executed and delivered by each of the Company and the Guarantor and, assuming
the due authorization, execution and delivery of such Pricing Agreement by or on behalf of
the Underwriters, insofar as the laws of the Kingdom of Norway are concerned, such Pricing
Agreement constitutes a valid and legally binding agreement of each of the Company and the
Guarantor;
(iii) the Indenture has been duly authorized, executed and delivered by the Company
and the Guarantor and, assuming the due authorization, execution and delivery of the
Indenture by the Trustee, insofar as the laws of the Kingdom of Norway are concerned, the
Indenture constitutes a valid, legally binding and enforceable agreement against each of
the Company and the Guarantor in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability affecting the enforcement of creditors’ rights and general equity
principles;
(iv) the Securities to be issued by the Company have been duly authorized by the
Company and the Designated Securities issued and delivered pursuant to the Pricing
Agreement with respect to such Designated Securities have been duly executed,
authenticated and issued and delivered by the Company and, insofar as the laws of the
Kingdom of Norway are concerned, constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability affecting the enforcement of
creditors’ rights and general equity principles;
(v) the Guarantees have been duly authorized, executed and delivered by the Guarantor
and constitute valid and legally binding obligations of the Guarantor enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general application relating to or
affecting creditors’ rights and to general equity principles;
- 16 -
(vi) the execution and delivery by the Company and the Guarantor of, and the
performance by the Company and the Guarantor of their respective obligations under, this
Agreement and the applicable Pricing Agreement, the Designated Securities, the Guarantees
and the Indenture will not contravene or result in a breach or violation of (i) the
articles of association of the Company or the Guarantor, (ii) to such counsel’s knowledge,
any agreement or other instrument binding upon the Company, the Guarantor or any
Significant Subsidiary or to which any property or assets of the Company or any
Significant Subsidiary is subject, that is material to the Company and its subsidiaries,
taken as a whole, or (iii) to such counsel’s knowledge, any statute, rule, regulation,
judgment, order or decree of any Governmental Agency having jurisdiction over the Company,
the Guarantor or Significant Subsidiary, except statutes, rules, regulations, judgments,
orders or decrees the contravention of which would not (individually or in the aggregate)
have a Material Adverse Effect, and which would not affect the due authorization,
execution, validity, binding effect or enforceability of this Agreement and the applicable
Pricing Agreement, the Indenture, the Designated Securities or the Guarantees relating to
the Designated Securities; and no consent, approval, authorization or order of, or
qualification with, any Norwegian Governmental Agency is required for the performance by
the Company or the Guarantor of its obligations under this Agreement and the applicable
Pricing Agreement, the Indenture, the Designated Securities or the Guarantees relating to
the Designated Securities, except such as have been obtained or made and which are in full
force and effect and copies of which have been furnished to the Underwriters;
(vii) there are no legal or governmental proceedings pending or, to such counsel’s
knowledge, threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties or assets of the Company or any of its subsidiaries is subject
other than as set forth in the Pricing Prospectus and proceedings which such counsel
believes are not likely to have a Material Adverse Effect;
(viii) the Company and, to the best of such counsel’s knowledge, its subsidiaries
possess all certificates, authorizations, orders, licenses and permits of and from, and
have made all filings with, any Governmental Agency having jurisdiction over the Company
and any of its subsidiaries necessary to conduct its business as presently conducted,
except as set forth in the Pricing Prospectus and the Prospectus and except to the extent
that the failure to possess all such certifications, authorizations, orders, licenses and
permits, or to have made such filings, would not have a Material Adverse Effect; and, to
such counsel’s knowledge, neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such certificate,
authorization, order, license or permit, in which there is more than an insubstantial risk
of an unfavorable decision, ruling or finding and
- 17 -
which, singly or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a Material Adverse Effect;
(ix) except as disclosed in the Pricing Prospectus and the Prospectus, no stamp or
other issuance or transfer taxes or duties or similar fees or charges are payable by or on
behalf of the Underwriters to the Kingdom of Norway or any political subdivision or taxing
authority thereof or therein in connection with (i) the issuance, sale and delivery by the
Company of the Designated Securities and the related Guarantees to or for the respective
accounts of the Underwriters or (ii) the sale and delivery by the Underwriters of the
Designated Securities and the related Guarantees in accordance with the terms of this
Agreement and in the manner contemplated by the Pricing Prospectus and the Prospectus;
(x) the choice of New York law to govern this Agreement and the related Pricing
Agreement, the Indenture and the Designated Securities and the related Guarantees is,
under the laws of the Kingdom of Norway, a valid choice of law, subject to the limitation
that New York law will not be applied to the extent that it would be contrary to Norwegian
public policy and that Norwegian courts will apply Norwegian procedural rules in any such
action or proceeding, and, subject further to the limitation that if and to the extent
that proceedings have already been instituted or are pending in the courts of any country
other than the Kingdom of Norway at the time the matter is brought before a court in the
Kingdom of Norway, the courts of the Kingdom of Norway may think it proper in accordance
with their rules not to entertain or stay an action in respect of a matter on which a
court of another country has already given judgment or is entertaining proceedings; the
submission to the jurisdiction of such New York courts contained in this Agreement and the
related Pricing Agreement, the Indenture and the Designated Securities and the related
Guarantees is valid under Norwegian law; the waiver by the Company of any objection to the
venue of a proceeding in such New York courts is legal, valid and binding under Norwegian
law; service of process effected in the manner set forth in Section 14(b) of this
Agreement and in Section 114 of the Indenture, assuming its validity under New York law,
will be effective, insofar as Norwegian law is concerned, to confer valid personal
jurisdiction over the Company and the Guarantor;
(xi) the Company and the Guarantor are not entitled to any immunity to jurisdiction
on the basis of sovereign immunity in any legal suit, action or proceeding against them
arising out of or based on this Agreement and the related Pricing Agreement and the
Indenture or the transactions contemplated thereby which is instituted in any competent
court in Norway. The Company and the Guarantor’s irrevocable waiver in this Agreement and
the related Pricing Agreement and the Indenture of any such immunity to which it may
otherwise be entitled or become entitled is valid and binding under Norwegian law; and
- 18 -
(xii) the statements in the Pricing Prospectus and the Prospectus under the captions
“Enforceability of Civil Liabilities”, “Taxation — Norwegian Taxation of Debt Securities
and Payments under the Guarantees” and “Taxation — Norwegian Taxation of Ordinary Shares
and ADSs”, to the extent such statements relate to matters of Norwegian law or regulation
or to the provision of documents governed by the laws of Norway, therein described, fairly
present in all material respects the information called for with respect to such legal
matters and documents and fairly summarize in all material respects the matters referred
to therein as of the Time of Delivery.
In giving the foregoing opinions, such counsel may state that he has not investigated the laws
of any jurisdiction other than the Kingdom of Norway as they stand and have been interpreted in
published case law of the courts in the Kingdom of Norway as of the date of such opinion, and that
such counsel do not express or imply an opinion on the laws of any jurisdiction other than the
Kingdom of Norway.
(f) The Underwriters shall have received on the Time of Delivery an opinion of Xxxxxxxx &
Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantor, dated the Time of Delivery, to the
effect that:
(i) assuming the Indenture has been duly authorized, executed and delivered by each
of the Company and the Guarantor insofar as the laws of the Kingdom of Norway are
concerned, it has been duly executed and delivered by each of the Company and the
Guarantor; the Indenture has been duly qualified under the Trust Indenture Act of 1939 and
constitutes a valid and legally binding obligation of each of the Company and the
Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles;
(ii) assuming the Pricing Agreement relating to the Designated Securities has been
duly authorized, executed and delivered by each of the Company and the Guarantor insofar
as the laws of the Kingdom of Norway are concerned, such Pricing Agreement has been duly
executed and delivered by each of the Company and the Guarantor;
(iii) assuming the Designated Securities have been duly authorized, executed,
authenticated, issued and delivered by the Company insofar as the laws of the Kingdom of
Norway are concerned, they have been duly executed, authenticated, issued and delivered by
the Company and (assuming due authentication of the Designated Securities by the Trustee)
constitute valid and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar
- 19 -
laws of general applicability relating to or affecting creditors’ rights and to
general equity principles;
(iv) assuming the Guarantees relating to the Designated Securities have been duly
authorized, executed and delivered by the Guarantor insofar as the laws of the Kingdom of
Norway are concerned, the Guarantees relating to the Designated Securities have been duly
executed and delivered by the Guarantor and constitute valid and legally binding
obligations of the Guarantor, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors’ rights and to general equity
principles;
(v) the issuance of the Designated Securities in accordance with the Indenture and
the sale of the Designated Securities by the Company pursuant to the Underwriting
Agreement do not, and the performance by the Company and the Guarantor of their respective
obligations under the Indenture, the Underwriting Agreement, the Securities and the
Guarantees will not violate any Federal law of the United States or law of the State of
New York applicable to the Company or the Guarantor; provided, however,
that, with respect to this paragraph (v), such counsel expresses no opinion with respect
to Federal or state securities laws, other antifraud laws, fraudulent transfer laws and
laws that restrict transactions between United States persons and citizens or residents of
certain foreign countries or specially designated nationals and organizations;
provided, further, that insofar as performance by the Company and the
Guarantor of their respective obligations under the Indenture, the Underwriting Agreement,
the Designated Securities and the related Guarantees is concerned, such counsel expresses
no opinion as to bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights;
(vi) assuming the validity of such action under Norwegian law, under the laws of the
State of New York relating to submission to personal jurisdiction, each of the Company and
the Guarantor has, pursuant to Section 14(b) of this Agreement and Section 114 of the
Indenture validly and irrevocably submitted to the non-exclusive jurisdiction of any
Federal or state court in the Borough of Manhattan, the City of New York, New York, in any
suit or proceeding arising out of or related to and the transactions anticipated thereby
this Agreement and the related Pricing Agreement and the Indenture and has appointed
______as its authorized agent for the purposes described in Section 14(b) of
this Agreement and Section 114 of the Indenture;
(vii) all regulatory consents, authorizations, approvals and filings required to be
obtained or made by the Company or the Guarantor, as the case may be, under the Federal
laws of the United States and the
- 20 -
laws of the State of New York for the issuance by the Guarantor of the Guarantees and
the issuance, sale and delivery of the Designated Securities by the Company to the
Underwriters have been obtained or made; and
(viii) neither the Company nor the Guarantor is, and after giving effect to the
offering and sale of the Designated Securities and the application of the proceeds thereof
as described in the Pricing Prospectus and the Prospectus, would not be on the date of
such letter, an “investment company” as such term is defined in the U.S. Investment
Company Act of 1940, as amended.
Such counsel may state that, with your approval, they have relied as to certain matters upon
certificates of the Company, the Guarantor and their officers or directors and employees and upon
information obtained from other sources believed by them to be responsible, and that they have
assumed that the Indenture has been duly authorized, executed and delivered by the Trustee, that
the Designated Securities, including the Guarantees thereon, conform to the specimens thereof
examined by them, that the Trustee’s certificates of authentication of the Designated Securities
have been manually signed by one of the Trustee’s duly authorized officers and that the signatures
on all documents examined by such counsel are genuine, assumptions which they have not
independently verified.
Such counsel may also state that their opinion is limited to the Federal laws of the United
States and the laws of the State of New York, and that they are expressing no opinion as to the
effect of the laws of any other jurisdiction. In addition, such counsel may (i) rely, without
independent investigation, as to matters of Norwegian law, upon the opinion of the Company’s and
the Guarantor’s Senior Legal Counsel rendered pursuant to Section 8(e); (ii) assume that each of
the Company and the Guarantor has been duly incorporated and is an existing company under the laws
of the Kingdom of Norway; and (iii) assume that any document referred to in their opinion as
executed by the Company and/or the Guarantor has been duly authorized, executed and delivered in
accordance with the laws of the Kingdom of Norway.
Such counsel shall also state that they have reviewed the Registration Statement, the Base
Prospectus, the Prospectus and the Pricing Disclosure Package and participated in discussions with
representatives of the Underwriters and those of the Underwriters’ Norwegian counsel, the Company,
the Guarantor and their accountants; and between the date of the final prospectus supplement
relating to the Designated Securities (the “Prospectus Supplement”) and the time of delivery of the
letter, they participated in further discussions with representatives of the Underwriters and those
of the Company and the Guarantor and their accountants, concerning certain matters relating to the
Company and the Guarantor and reviewed certificates of certain officers of the Company and the
Guarantor, letters addressed to the Underwriters from the Company’s and the
- 21 -
Guarantor’s accountants and opinions addressed to the Underwriters from the Company’s and the
Guarantor’s Senior Legal Counsel; and on the basis of the information that they gained in the
course of the performance of the services referred to above, considered in the light of their
understanding of the applicable law (including the requirements of Form F-3 and the character of
prospectus contemplated thereby) and the experience they have gained through their practice under
the Securities Act, such counsel shall confirm to the Underwriters that each part of the
Registration Statement, as of the date of the Prospectus Supplement, and the Base Prospectus, as
supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, appeared on
their face to be appropriately responsive, in all material respects relevant to the offering of the
Securities, to the requirements of the Securities Act, the Trust Indenture Act and the applicable
rules and regulations of the Commission thereunder and that the statements contained under the
captions “Description of Debt Securities and Guarantees”, “Taxation —United States Taxation of Debt
Securities” and “Plan of Distribution” in the Base Prospectus and under the captions “Description
of Notes and Guarantees”, “Taxation” and “Underwriting” in the Prospectus Supplement insofar as
they relate to provisions of the documents or United States Federal tax law therein described and
insofar as they relate to the offering of the Designated Securities, constitute a fair and accurate
summary of such provisions in all material respects. and, further, nothing that came to such
counsel’s attention in the course of such review has caused them to believe, insofar as relevant to
the offering of the Designated Securities, (a) that the Registration Statement, as of the date of
the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the statements therein not
misleading, or (b) that the Pricing Disclosure Package, as of the Applicable Time, contained any
untrue statement of a material fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading, or (c) that the Base Prospectus, as supplemented by the Prospectus Supplement, as of
the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such counsel may note that the Base
Prospectus, as supplemented by the Prospectus Supplement, does not necessarily contain a current
description of the Company’s and the Guarantor’s business and affairs since, pursuant to Form F-3,
it incorporates by reference certain documents filed with the Commission that contain information
as of various dates.
Such counsel shall also advise the Underwriters that nothing that came to their attention in
the course of the procedures described above has caused them to believe that the Base Prospectus,
as supplemented by the Prospectus Supplement, as of the time of delivery of such letter, contained
any untrue statement of a material fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading. Such opinion may state (1) that such counsel do not assume any responsibility for the
accuracy, completeness or fairness of the statements
- 22 -
contained in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the
Pricing Disclosure Package, except for those made under the captions “Description of Debt
Securities and Guarantees,” “Taxation — United States Taxation of Debt Securities” and “Plan of
Distribution” in the Base Prospectus and “Description of Notes and Guarantees”, “Taxation” and
“Underwriting” in the Prospectus Supplement insofar as they relate to provisions of the documents
or United States Federal tax law therein described and insofar as they relate to the offering of
the Designated Securities and (2) that they do not express any opinion or belief as to the
financial statements or other financial data derived from accounting records, or the information
regarding reserves and production, or the letter report of XxXxxxxx and XxxXxxxxxxx included as an
appendix to the Company’s Annual Report on Form 20-F incorporated by reference therein, contained
in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Pricing
Disclosure Package, or as to management’s report of its assessment of the effectiveness of the
Company’s internal control over financial reporting or auditors’ report as to the Company’s
internal control over financial reporting, each as included in the Registration Statement, the Base
Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, or as to the statement of
the eligibility and qualifications of the Trustee under the Indenture under which the Securities
are being issued, or as to any statement made with respect to Norwegian law in the Registration
Statement, the Base Prospectus, the Prospectus or the Pricing Disclosure Package; that their
opinion described in this sub-section is furnished as United States counsel for the Company and the
Guarantor to the Representatives of the Underwriters and is solely for the benefit of the several
Underwriters in their capacity as such, and may not be relied upon by any other person; and that
their opinion may not be quoted, referred to or furnished to any purchaser or prospective purchaser
of the Designated Securities and may not be used in the furtherance of any offer or sale of the
Securities.
(g) The Underwriters shall have received on the Time of Delivery an opinion of U.S. counsel
for the Underwriters, dated the Time of Delivery, covering certain of the matters referred to in
sub-sections (i), (ii), (iii) and (iv) and the last two last paragraphs of Section 8(f).
(h) The Underwriters shall have received on the Time of Delivery an opinion of Norwegian
counsel to the Underwriters, with respect to such matters of Norwegian law and/or non-factual
matters as the Representatives may reasonably request.
(i) The Company shall have complied with the provisions of Section 5(e) hereof with respect to
the furnishing of prospectuses.
(j) The Underwriters shall have received on the date of the applicable Pricing Agreement a
letter dated on the date of the applicable Pricing Agreement, in a form and substance reasonably
satisfactory to the Representatives, from the independent certified accountants who have certified
the financial statements of
- 23 -
the Company and its subsidiaries included in or incorporated by reference in the Registration
Statement, the Pricing Prospectus and the Prospectus containing statements and information of the
type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in the Registration Statement, the
Pricing Prospectus and the Prospectus.
(k) The Underwriters shall have received on the date of the applicable Time of Delivery a
letter dated on the date of the applicable Time of Delivery, in form and substance reasonably
satisfactory to the Representatives, from the independent certified accountants who have certified
the financial statements of the Company and its subsidiaries included in or incorporated by
reference in the Registration Statement, the Pricing Prospectus and the Prospectus to the effect
that they reaffirm the statements made in the comfort letters furnished pursuant to sub-section (j)
above, except that the specified date referred to shall be a date not more than three Stavanger
business days prior to the Time of Delivery.
9. (a) The Company and the Guarantor jointly and severally agree to indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus,
the Prospectus (as amended or supplemented), any Issuer Free Writing Prospectus or any “issuer
information” (as defined in Rule 433(h)(2) under the Securities Act) filed or required to be filed
pursuant to Rule 433(d) under the Securities Act, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter
in connection with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Company nor the Guarantor shall be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, as amended or supplemented, or any Issuer Free Writing Prospectus, in each case,
relating to the Designated Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company or the Guarantor by any Underwriter of
Designated Securities through the Representatives expressly for use, as the case may be, in the
Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, as amended or supplemented, relating to such Designated Securities or in any Issuer
Free Writing Prospectus.
- 24 -
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless each of
the Company and the Guarantor against any losses, claims, damages or liabilities to which each of
the Company, the Guarantor, each of its directors and officers and each person who controls the
Company within the meaning of either the Securities Act or the Exchange Act may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the Base Prospectus, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, as amended or supplemented, or any
Issuer Free Writing Prospectus (in each case, which relates to the Designated Securities), or any
amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made in the Registration
Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus,
as amended or supplemented, or any Issuer Free Writing Prospectus, and, in each case, relating to
the Designated Securities, or any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company or the Guarantor by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company and the Guarantor for any
legal or other expenses reasonably incurred by the Company or the Guarantor, each of its directors and officers and each person who controls the Company within the meaning of either the Securities Act
or the Exchange Act in connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under sub-section (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such sub-section, notify the
indemnifying party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such sub-section. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall, so far as permitted by any insurance policy of the indemnified party and
subject to the indemnifying party agreeing to indemnify the indemnified party against all judgments
and other liabilities resulting from such action, be entitled to participate therein and, to the
extent that it may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with
counsel satisfactory to such indemnified party; provided that, if the defendants in any such action
include both the indemnified party and the indemnifying party, and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
- 25 -
indemnifying party, the indemnified party or parties shall have the right to select separate
counsel, to assert such legal defenses and to otherwise participate in the defense of such action
on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal defenses in accordance
with the proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel), approved by the representatives representing the indemnified parties
who are parties to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii). An indemnifying person shall not be liable for
any settlement of any proceeding effected without its written consent, but if settled with such
consent, the indemnifying party agrees to indemnify each indemnified party from and against any
loss or liability by reason of such settlement. An indemnifying party will not, without the prior
written consent of each indemnified party, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement, compromise
or consent (i) includes an unconditional release of the indemnified party from all liability
arising out of such action 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) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under sub-section (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) 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 of the Designated Securities on the other from the
offering of the Designated Securities to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company
- 26 -
and the Guarantor on the one hand and the Underwriters of the Designated Securities on the
other in connection with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations (including, without limitation, any failure by a party, promptly after its receipt
of notice of the commencement of any action in respect of which contribution may be sought under
this sub-section (d), to notify the other party in writing of the commencement of such action).
The relative benefits received by the Company on the one hand and such Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters, in each case as set forth on the cover page of the
Prospectus, as amended or supplemented. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or the Guarantor on the one hand or such Underwriters on the other 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 sub-section (d) 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 sub-section (d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this
sub-section (d) shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this sub-section (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the applicable
Designated 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 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated Securities in this
sub-section (d) to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company and the Guarantor under this Section 9 shall be in addition
to any liability which the Company or the Guarantor may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter within the meaning
of the Securities Act or the Exchange Act; and the obligations of the Underwriters under this
Section 9 shall be in addition to any liability which the respective Underwriters
- 27 -
may otherwise have and shall extend, upon the same terms and conditions, to each officer and
director of each of the Company and the Guarantor and to each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Designated
Securities which it has agreed to purchase under the applicable Pricing Agreement, the
Representatives may in their discretion, after giving notice to and consulting with the Company,
arrange for themselves or another party or other parties to purchase such Designated Securities on
the terms contained herein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Designated Securities on such
terms. In the event that, within the respective prescribed period, the Representatives notify the
Company that they have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives, the Company shall have the right to postpone the Time of Delivery
for such Designated Securities for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, as
amended or supplemented, or in any other documents or arrangements, and each of the Company and the
Guarantor agrees to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term
“Underwriter” as used in this Agreement shall include any person substituted under this Section 10
with like effect as if such person had originally been a party to the applicable Pricing Agreement
with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the Designated Securities
of a defaulting Underwriter or Underwriters by the Representatives, the Company as provided in
sub-section (a) above, the aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated
Securities, then the Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Designated Securities which such Underwriter agreed to purchase
under the applicable Pricing Agreement and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Designated Securities
of a defaulting Underwriter or Underwriters by the
- 28 -
Representatives and, the Company as provided in sub-section (a) above, the aggregate principal
amount of Designated Securities which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of the Designated Securities, as referred to in sub-section (b) above, or if the
Company shall not exercise the right described in sub-section (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then
the applicable Pricing Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter, the Company or the Guarantor, except for the expenses to be borne by
the Company, the Guarantor and the Underwriters as provided in Section 7 hereof and the indemnity
and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company, the Guarantor and the several Underwriters, as set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any
officer or director or controlling person of the Company or the Guarantor, and shall survive
delivery of and payment for the Designated Securities.
12. This Agreement and any Pricing Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company and the Guarantor if (a) at any
time after the execution and delivery of such agreement and prior to the Time of Delivery, (i)
trading in the Company’s securities or trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the US Financial Industry
Regulatory Authority, or the Oslo Stock Exchange, (ii) a general moratorium on commercial banking
activities shall have been declared by national or local authorities in the Kingdom of Norway, the
United States or a material disruption in clearance or settlement systems shall have occurred in
the Kingdom of Norway or the United States or (iii) there shall have occurred any material outbreak
or escalation of hostilities involving the Kingdom of Norway or the United States or any calamity
or crisis the effect of which on the financial markets of the United States, in the reasonable
judgment of the Representatives, is material and adverse and (b) in the case of any of the events
specified in clauses (i) through (iii), such event singly or together with any other such event
makes it, in the reasonable judgment of the Representatives, impracticable to market the Designated
Securities on the terms and in the manner contemplated in the Pricing Prospectus and Prospectus.
13. If any Pricing Agreement shall be terminated pursuant to Section 10 hereof, neither the
Company nor the Guarantor shall then be under any liability to any Underwriter with respect to the
Designated Securities covered by such Pricing Agreement except as provided in Sections 7 and 9
hereof; but, if for any other reason Designated Securities are not delivered by or on behalf of the
- 29 -
Company as provided herein, including due to a failure of the Company or the Guarantor to
satisfy the conditions to the several obligations of the Underwriters under Section 8 of this
Agreement, the Company will reimburse the Underwriters through the Representatives for all
reasonable out-of-pocket expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of such Designated Securities, but neither the Company nor the
Guarantor shall then be under further liability to any Underwriter with respect to such Designated
Securities except as provided in Sections 7 and 9 hereof.
14. (a) This Agreement shall be governed by, and construed in accordance with, the laws of the
State of New York.
(b) Each of the Company and the Guarantor submits to the non-exclusive jurisdiction of any
Federal or state court in the City, County and State of New York, United States of America, in any
legal suit, action or proceeding based on or arising under this Agreement and agrees that all
claims in respect of such suit or proceeding may be determined in any such court. Each of the
Company and the Guarantor waives, to the fullest extent permitted by law, any objections to venue,
the defense of an inconvenient forum or objections to personal jurisdiction with respect to the
maintenance of such legal suit, action or proceeding. Each of the Company and the Guarantor hereby
designates and appoints ______(the “Process Agent”), as its authorized agent, upon
whom process may be served in any such legal suit, action or proceeding, it being understood that
the designation and appointment of ______as such authorized agent shall become
effective immediately without any further action on the part of the Company or the Guarantor. Such
appointment shall be irrevocable to the extent permitted by Norwegian law for a period of three
years from and after the Time of Delivery and subject to the appointment of a successor agent in
the United States for the remainder of such three-year period on terms substantially similar to
those contained in this Section 14(b) and reasonably satisfactory to the Representatives. If the
Process Agent shall cease to act as the Company’s and the Guarantor’s agent for service of process,
the Company and the Guarantor shall appoint, without unreasonable delay, another such agent, and
notify the Representatives of such appointment. Each of the Company and the Guarantor represents
to the Underwriters that it has notified the Process Agent of such designation and appointment and
that the Process Agent has accepted the same in writing. Each of the Company and the Guarantor
hereby authorizes and directs the Process Agent to accept such service. Each of the Company and
the Guarantor further agrees that service of process upon the Process Agent and notice by certified
mail of said service to the Company or the Guarantor shall be deemed in every respect effective
service of process upon the Company or the Guarantor in any such legal suit, action or proceeding.
Nothing herein shall affect the right of any Underwriter or any person controlling any Underwriter
to serve process in any other manner permitted by law.
- 30 -
(c) Each of the Company and the Guarantor irrevocably waives any immunity to jurisdiction
based on a legal theory of sovereign immunity to which it may otherwise be entitled or become
entitled to in any legal suit, action or proceeding against it by any Underwriter arising out of or
based on this Agreement which is instituted in any competent court.
(d) The obligation of the parties to make payments hereunder is in U.S. dollars (the
“Obligation Currency”) and such obligation shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in any currency other than the Obligation Currency or
any other realization in such other currency, whether as proceeds of set-off, security, guarantee,
distributions, or otherwise, except to the extent to which such tender, recovery or realization
shall result in the receipt by the party which is to receive such payment of the full amount of the
Obligation Currency expressed to be payable hereunder. The party liable to make such payment
agrees to indemnify the party which is to receive such payment for the amount (if any) by which
such receipt shall fall short of the full amount of the Obligation Currency expressed to be payable
hereunder and the party which is to receive such payment agrees to pay to the party liable to make
such payment the amount (if any) by which such receipt shall exceed the full amount of the
Obligation Currency, and, in each case, such obligation shall not be affected by judgment being
obtained for any other sums due under this Agreement. The parties agree that the rate of exchange
which shall be used to determine if such tender, recovery or realization shall result in the
receipt by the party which is to receive such payment of the full amount of the Obligation Currency
expressed to be payable hereunder shall be the noon buying rate in New York City for cable
transfers in foreign currencies as certified for customs purposes by the Federal Reserve Bank of
New York for the business day preceding that on which the judgment becomes a final judgment.
15. In all dealings hereunder, the Representatives shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by the Representatives jointly or by
such of the Representatives, if any, as may be designated for such purpose in the applicable
Pricing Agreement.
16. All statements, requests, notices and agreements hereunder shall be in writing and, if to
the Underwriters, shall be delivered or sent by telex, facsimile transmission, or in writing
delivered by hand, or by telephone (to be promptly confirmed by telex or fax) to you as the
Representatives to the address specified in the applicable Pricing Agreement; and, if to the
Company or the Guarantor, shall be delivered or sent by telex, facsimile transmission, or in
writing delivered by hand, or by telephone (to be promptly confirmed by telex or fax) to the
address of the Company set forth in the Registration Statement. Any such notices shall take effect
upon receipt thereof.
17. This Agreement and each Pricing Agreement shall be binding on, and inure solely to the
benefit of, the Company, the Guarantor, the Underwriters
- 31 -
and, to the extent provided in Sections 9 hereof, the officers and directors of the Company
and the Guarantor and any controlling or affiliated persons referred to therein and their
respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement or any such Pricing Agreement. No
purchaser of any of the Designated Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
18. Each of the Company and the Guarantor acknowledges and agrees that (i) the purchase and
sale of the Designated Securities pursuant to this Agreement is an arm’s-length commercial
transaction between the Company and the Guarantor, on the one hand, and the several Underwriters,
on the other, (ii) in connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of the Company or the
Guarantor, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the
Company or the Guarantor with respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently advising the Company
or the Guarantor on other matters) or any other obligation to the Company or the Guarantor except
the obligations expressly set forth in this Agreement and (iv) each of the Company and the
Guarantor has consulted its own legal and financial advisors to the extent it deemed appropriate.
Each of the Company and the Guarantor agrees that it will not claim that the Underwriters, or any
of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar
duty to the Company or the Guarantor, in connection with such transaction or the process leading
thereto.
19. Time shall be of the essence in connection with each Pricing Agreement. For purposes of
this Agreement, (i) the term “business day” shall mean any day when the Commission’s office in
Washington, D.C. is open for business; and (ii) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
20. This Agreement may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument.
- 32 -
Annex I
[FORM OF PRICING AGREEMENT]
Representatives of the
Several Underwriters named
in Schedule I hereto
Several Underwriters named
in Schedule I hereto
_________, ____
Ladies and Gentlemen:
StatoilHydro ASA, a public limited company incorporated under the laws of the Kingdom of
Norway (the “Company”), proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated ______, a copy of which is attached hereto as Annex I (the
“Underwriting Agreement”), to issue and sell to the Underwriters named in Schedule I hereto (the
“Underwriters”) the Securities specified in Schedule II hereto (the “Designated Securities”) with
the guarantee (the “Guarantee”) of StatoilHydro Petroleum AS, a public limited company incorporated
under the laws of the Kingdom of Norway (the “Guarantor”) endorsed thereon. Each of the provisions
of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such provisions had been set forth
in full herein; and each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement. Each reference to the
“Representatives” herein and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives designated to act
on behalf of each of the Underwriters of the Designated Securities pursuant to Section 16 of the
Underwriting Agreement and the address of the Representatives referred to in such Section 16 are
set forth at the end of Schedule II hereto.
A supplement to the Prospectus relating to the Designated Securities in the form heretofore
delivered to you is now proposed to be filed with the Commission.
The
Applicable Time for purposes of this Pricing Agreement is ___:__ _.m. New York time on the
date hereof. Each “free writing prospectus” as defined in Rule 405 under the Securities Act for
which each party hereto has received consent to use in accordance with Section 6 of the
Underwriting Agreement is listed in Schedule III hereto.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, each of the Company and the Guarantor jointly and severally
agrees that the Company will issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount
of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and return to us one
for the Company and the Guarantor and each of the Representatives plus one for each counsel
counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between each of the
Underwriters, the Company and the Guarantor. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the Company and the
Guarantor for examination upon request.
| Very truly yours, | ||||||
| STATOILHYDRO ASA | ||||||
| By: | ||||||
| Title: | ||||||
| STATOILHYDRO PETROLEUM AS | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
- 2 -
SCHEDULE I
| Principal | ||||
| Amount of | ||||
| Designated | ||||
| Securities to be | ||||
| Underwriters | Purchased | |||
| $ | ||||
Total |
$ | |||
- 3 -
SCHEDULE II
Issuer:
StatoilHydro ASA
Guarantor:
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
[$]
Price to Public:
___% of the principal amount of the Designated Securities, plus accrued interest from
to [and accrued amortization, if any,
from to ]
Purchase Price by Underwriters:
___% of the principal amount of the Designated Securities, plus accrued interest from
to [and accrued amortization, if any,
from to ]
Form of Designated Securities [subject to change to reflect clearance and settlement procedures for
Euro component]:
[Book-entry only form represented by one or more global registered form securities
deposited with The Depository Trust Company (“DTC”) or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours prior to the
Time of Delivery at the office of DTC.]
[Definitive form, to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery at the office of [The Depository Trust Company or its
designated custodian] [the Representatives].]
Specified funds for payment of purchase price:
- 4 -
[Immediately available funds] [Federal (same-day) funds]
Indenture:
[Indenture dated as of [•], among StatoilHydro ASA, StatoilHydro Petroleum AS and [•], as
Trustee]
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing ___,]
Additional Amounts:
[Payable upon the occurrence of certain events relating to changes in tax law as described
in the Prospectus.]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the sinking fund, in
whole or in part at the option of the Company, in the amount of [$] or an
integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %,
and if] redeemed during the 12-month period beginning ,
Year
|
Redemption Price |
|
- 5 -
and thereafter at 100% of their principal amount, together in each case with accrued
interest to the redemption date.]
[on any interest payment date falling on or after , , at the election of
the Company, at a redemption price equal to the principal amount thereof, plus accrued
interest to the date of redemption.]
[The Securities are redeemable at the option of the Company upon certain changes in
Norwegian tax law.]
[Other possible redemption provisions, such as mandatory redemption upon occurrence of
certain events or redemption for other changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to retire
[$] principal amount of Designated Securities on in each of the years
through at 100% of their principal amount plus accrued interest][, together
with [cumulative] [noncumulative] redemptions at the option of the Company to retire an
additional [$] principal amount of Designated Securities in the
years through at 100% of their principal amount plus accrued interest].
Extendable provisions:
Securities are repayable on , [insert date and years], at the option of the
holder, at their principal amount with accrued interest. Initial annual interest rate
will be %, and thereafter annual interest rate will be adjusted on ,
and to a rate not less than % of the effective annual interest
rate on U.S. Treasury obligations with -year maturities as of the [insert date 15
days prior to maturity date] prior to such [insert maturity date].]
[If Securities are Floating Rate Debt Securities, insert –
Floating rate provisions:
Initial annual interest rate will be % through and thereafter will be
adjusted [monthly] [on each , , and
] [to an annual rate of % above the average rate for -year [month]
[securities] [certificates of deposit] issued by and
[insert names of banks].] [and the annual interest rate
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[thereafter] [from through ] will be the interest
yield equivalent of the weekly average per annum market discount rate
for -month
Treasury bills plus % of Interest Differential (the excess, if any, of (i) then current
weekly average per annum secondary market yield for -month certificates of deposit
over (ii) then current interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills); [from and thereafter the
rate will be the then current interest yield equivalent plus % of Interest
Differential].]
Defeasance provisions:
Time of Delivery:
Closing Location:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
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Other Terms:
Selling Restrictions
[If Securities offered in the European Economic Area — In relation to each Member State of the
European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member
State”), each Manager has represented and agreed that with effect from and including the date on
which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant
Implementation Date”) it has not made and will not make an offer of Designated Securities to the
public in that Relevant Member State other than:
| (a) | to legal entities which are authorised or regulated to operate in the financial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities; | ||
| (b) | to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000; and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; | ||
| (c) | to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the Representatives; or | ||
| (d) | in any other circumstances falling within Article 3(2) of the Prospectus Directive, |
provided that no such offer of Designated Securities shall require the Issuer or any Underwriter to
publish a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer of Designated Securities to the
public” in relation to any Designated Securities in any Relevant Member State means the
communication in any form and by any means of sufficient information on the terms of the offer and
the Designated Securities to be offered so as to enable an investor to decide to purchase or
subscribe the Designated Securities, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State and the expression “Prospectus
Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each
Relevant Member State.
This European Economic Area selling restriction is in addition to any other selling
restrictions set out below]
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[If Securities offered in United Kingdom — Each Underwriter has represented and agreed that:
| (a) | it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of the Designated Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company or the Guarantor; and | ||
| (b) | it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Designated Securities in, from or otherwise involving the United Kingdom.] |
[If Securities offered in Norway — Each Underwriter has represented and agreed that no
offering material in relation to any of the Designated Securities has been or will be approved by
the Oslo Stock Exchange. Accordingly, each Underwriter has agreed, and each further Underwriter
appointed will be required to agree, that none of the Designated Securities may be subject of a
public offer in Norway.]
Each Underwriter has represented and agreed that with respect to any other jurisdiction
outside the United States, it has not offered or sold and will not offer or sell any of the
Designated Securities in any jurisdiction, except under circumstances that resulted or will result
in compliance with the applicable rules and regulations of such jurisdiction.
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SCHEDULE III
| (a) | Issuer Free Writing Prospectuses: |
[Final term sheet(s) prepared in accordance with Section 5(a) of the Underwriting
Agreement]
| (b) | Underwriter Free Writing Prospectuses: |
| (c) | Additional Documents Incorporated by Reference: |
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ANNEX I TO THE PRICING AGREEMENT
Underwriting Agreement
Underwriting Agreement
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