Statoil ASA Underwriting Agreement Standard Provisions
Exhibit 1.1
Underwriting Agreement Standard Provisions
[•], 20__
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 Statoil ASA, a public limited company incorporated under the laws of the
Kingdom of Norway (“Statoil” or the “Company”), proposes 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”).
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.
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 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 Underwriting 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 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
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. The Company 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. [•]) relating to the
Securities to be issued from time to time by the Company has been filed by the Company with the
Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the
date of the applicable Pricing Prospectus; 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 the Company, 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 Securities Act has been received by the
Company. 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 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 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”;
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(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 form of the final prospectus relating to the Designated Securities 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 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 after 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
(viii) the “Applicable Time” is the time specified as such in the applicable Pricing
Agreement.
(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 Securities
(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 reliance upon and in conformity with information furnished in
writing to the Company 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 (as
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defined in the applicable Pricing Agreement), 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 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 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 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 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
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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 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.
(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.
(i) The Company has been duly incorporated and is validly existing as a public limited company
(allmennaksjeselskap) under the laws of the Kingdom of Norway and 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) The Securities have been duly authorized, 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
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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 the
Company, enforceable in accordance with its terms, subject as to enforcement 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.
(l) The issue and sale of the Securities and the execution and delivery by the Company of, and
the performance by the Company of its obligations under, all of the provisions of the Securities,
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; (ii) any agreement or other instrument binding upon the
Company or any of its subsidiaries or to which any assets of the Company or any of its subsidiaries
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 or the European Economic Area (collectively,
“Governmental Agency”) having jurisdiction over the Company or any of its subsidiaries or over its
assets or properties, 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 or the Securities; and no consent, approval, authorization or order of, or qualification
with, any Governmental Agency is required for the performance by the Company of its obligations
under this Agreement, any Pricing Agreement, the Indenture or the 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.
(m) The statements set forth in the Pricing Prospectus and the Prospectus under the caption
“Description of the Debt Securities”, insofar as it purports to constitute a summary of the terms
of the Securities, and under the captions “Taxation” and “Plan of Distribution”, 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 laws and documents referred to therein,
are accurate and complete in all material respects.
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(n) 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, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse Effect; and, to the best of the
Company’s knowledge, no such proceeds are threatened or contemplated by any Governmental Authority
or threatened by others.
(o) The Company is not, and after giving effect to each offering and sale of the Securities
and the application of the proceeds thereof, will not be, required to register as an “investment
company” as such term is defined in the U.S. Investment Company Act of 1940, as amended.
(p) 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 Securities to or for the respective
accounts of the Underwriters or (ii) the sale and delivery by the Underwriters of the Securities in
accordance with the terms of this Agreement and in the manner contemplated by the Pricing
Prospectus and the Prospectus.
(q) 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.
(r) 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.
(s) The Company has not 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 the price of any security of the Company to facilitate the sale or resale of the
Securities.
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(t) 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.
(u) Ernst & Young, who have certified certain financial statements of the Company and its
subsidiaries, are independent public consultants 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.
(v) 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.
(w) 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 and
authorization by the Representatives of the release of such Designated Securities, the several
Underwriters propose to offer such Designated Securities for sale upon the terms and conditions set
forth in the Prospectus.
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
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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 Securities.
5. The Company agrees with each of the several Underwriters of any Designated Securities:
(a) To prepare the Prospectus in relation to the applicable Designated Securities 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 attached as Schedule V to the applicable Pricing Agreement and 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 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, of the suspension of the qualification of
such Securities for offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such 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 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
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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 the
Company 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 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 to continue as
contemplated in the expired registration statement relating to the Securities. 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 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 the Company shall not 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 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
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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 30 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 its security holders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Securities Act), 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 (including, at the option of the Company, Rule 158).
(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 without regard to the proviso therein and
otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act.
(h) Unless otherwise agreed, during the period beginning from the date of the applicable
Pricing Agreement for such Designated Securities and continuing to and including the Time of
Delivery for such Designated Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities issued by the Company which mature more than one year after such Time of
Delivery, which are substantially similar to such Designated Securities which are denominated in
the same currency as such Designated Securities and are offered primarily in the same market as
such Designated Securities are primarily offered, without the prior written consent of the
Representatives, such consent not to be unreasonably withheld.
(i) If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by
10:00 P.M., Washington, D.C. time, on the date of the applicable Pricing Agreement, and the Company
shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of such fee pursuant to
Rule 111(b) under the Securities Act.
(j) To apply the net proceeds from the sale of Designated Securities as described in the
Pricing Prospectus under the heading “Use of Proceeds”.
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(k) 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.
(l) Not to solicit any offer to buy or offer to sell the Securities 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 of 1997 (the “Norwegian Securities Trading Act”), except as permitted in
accordance with Section 5.2 of such act.
6. (a) The Company 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 consents 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 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 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 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
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such Issuer Free Writing Prospectus would conflict with the information in the Registration
Statement, the Pricing Prospectus or the Prospectus or 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, will prepare and
furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document
which will correct such conflict, statement or omission.
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 under the Securities Act and
all other expenses in connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the 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 Securities; (iii) any fees charged by securities rating services for rating the
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 National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (v) the cost of preparing the Securities;
(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 Securities; and (vii) 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 12 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 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 the Company 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 the
Company 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.
(b) The Prospectus in relation to the applicable Designated Securities shall have been filed
with the Commission pursuant to Rule 424(b) within the
-13-
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 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; if the Company has elected to rely upon Rule 462(b)
under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by
10:00 P.M., Washington, D.C. time, on the date of the applicable Pricing Agreement; 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, 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 condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that 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, to the effect set forth in
sub-sections (a), (b) and (c) above. 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
General Counsel dated the Time of Delivery, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a public
limited company (allmennaksjeselskap) under the laws of the Kingdom of Norway, and has the
corporate power and authority to (A) own its property and to conduct its business as
described in the
-14-
Prospectus, as amended or supplemented, and is duly qualified to transact business in
each jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to be so
qualified would not have a Material Adverse Effect and (B) to execute, deliver and perform
its obligations under the Indenture, this Agreement and the Pricing Agreement relating to
the Designated Securities and to issue and perform its obligations under the Designated
Securities;
(ii) each of this Agreement and the Pricing Agreement with respect to the Designated
Securities has been duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery of this Agreement and such Pricing Agreement
by or on behalf of the Underwriters, insofar as the laws of the Kingdom of Norway are
concerned, this Agreement and such Pricing Agreement constitute valid and legally binding
agreements of the Company;
(iii) the Indenture has been duly authorized, executed and delivered by the Company
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 and legally binding agreement of the Company, subject as to
enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability affecting the enforcement of creditors’ rights
applicable to the Company;
(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, subject as to enforcement to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability affecting the enforcement of creditors’ rights applicable to the
Company;
(v) the execution and delivery by the Company of, and the performance by the Company
of its obligations under, this Agreement and the applicable Pricing Agreement, the
Securities and the Indenture will not contravene or result in a breach or violation of (i)
the articles of association of the Company, (ii) to such counsel’s knowledge, any
agreement or other instrument binding upon the Company or any of its subsidiaries or to
which any property or assets of the Company or any of its subsidiaries 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
-15-
Agency having jurisdiction over the Company or any subsidiary or over their
respective assets or properties, 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 Securities or the Indenture; and no consent, approval, authorization or
order of, or qualification with, any Norwegian Governmental Agency is required for the
performance by the Company or its subsidiaries of their obligations under this Agreement
and the applicable Pricing Agreement, the Securities or the Indenture, 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;
(vi) 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;
(vii) 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 which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a Material Adverse
Effect;
(viii) except as disclosed 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 Securities to or for the respective accounts of the Underwriters or (ii) the sale
and delivery by the Underwriters of the Securities in accordance with the terms of this
Agreement and in the manner contemplated by the Pricing Prospectus and the Prospectus;
-16-
(ix) the choice of New York law to govern this Agreement and the related Pricing
Agreement, the Indenture and the Securities 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 Securities 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 12 (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;
(x) The Company is not entitled to any immunity to jurisdiction on the basis of
sovereign immunity in any legal suit, action or proceeding against it 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’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
(xi) The statements in the Pricing Prospectus and the Prospectus under the captions
“Enforceability of Civil Liabilities”, “Taxation — Norwegian Taxation of Debt Securities”
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 does
-17-
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, dated the Time of Delivery, to the effect that:
(i) assuming the Indenture has been duly authorized, executed and delivered by the
Company insofar as the laws of the Kingdom of Norway are concerned, it has been duly
executed and delivered by the Company; the Indenture has been duly qualified under the
Trust Indenture Act of 1939 and constitutes a valid and legally binding obligation of the
Company, 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 this Agreement and the Pricing Agreement relating to the Designated
Securities have been duly authorized, executed and delivered by the Company insofar as the
laws of the Kingdom of Norway are concerned, each of this Agreement and such Pricing
Agreement has been duly executed and delivered by the Company;
(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 laws of general applicability relating to or affecting creditors’
rights and to general equity principles;
(iv) assuming the validity of such action under Norwegian law, under the laws of the
State of New York relating to submission to personal jurisdiction, the Company has validly
and effectively submitted to the non-exclusive jurisdiction of any Federal or state court
in the City, County and State of New York, in any legal suit, action or proceeding based
on or under this Agreement and the related Pricing Agreement and the Indenture and has
appointed [•] as its authorized agent for the purposes described in Section 12(b) of this
Agreement and Section 114 of the Indenture;
(v) all regulatory consents, authorizations, approvals and filings required to be
obtained or made by the Company under the Federal laws of the United States and the laws
of the State of New York for the
-18-
issuance, sale and delivery of the Designated Securities by the Company to the
Underwriters have been obtained or made; and
(vi) The Company is not, 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, will not be, required to register as 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 and the Company’s 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 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
General Counsel rendered pursuant to Section 6(e); (ii) assume that the Company has been duly
incorporated and is validly existing as a corporation under the laws of the Kingdom of Norway; and
(iii) assume that any document referred to in their opinion as executed by the Company 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
Prospectus and the Pricing Disclosure Package and participated in discussions with representatives
of the Company and its Norwegian counsel, the accountants for the Company and representatives of
the Underwriters and their U.S. and Norwegian counsel concerning certain matters relating to the
Company and reviewed certificates of certain officers of the Company and letters addressed to you
from the Company’s accountants; and on the basis of the information that they gained in the course
of the performance of such services, 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, when such
part became effective, and the Prospectus, as of the date of the Prospectus, appeared on their face
to be appropriately responsive in all material respects to the requirements of the Securities Act,
the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder; and
-19-
nothing that has come to the attention of such counsel has caused them to believe, insofar as
relevant to the offering of the Securities, (a) that any part of the Registration Statement, when
such part became effective, 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, (b) that the Pricing Disclosure Package, as of a time specified by you to be
immediately prior to the time of the first sale of the Securities by any Underwriter, 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 Prospectus, as of the date of the Prospectus and as of the date 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 contained in the
Registration Statement, the Prospectus or the Pricing Disclosure Package except for those made
under the captions “Description of Debt Securities” and “Taxation — United States Taxation” in the
Registration Statement and “Plan of Distribution” in the Prospectus insofar as they relate to the
provisions of documents therein described and (2) that they do not express any opinion or belief as
to the financial statements or other financial or statistical data, including 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 Prospectus or the Pricing Disclosure Package, or as to the
report of management’s assessment of the effectiveness of internal control over financial reporting
or the auditor’s attestation report thereon, each as included in the Registration Statement, the
Prospectus or the Pricing Disclosure Package, or as to the statement of the eligibility and
qualification of the Trustee under the Indenture under which the Securities are being issued, or as
to any statement made by the Company’s General Counsel with respect to Norwegian law in the
Registration Statement, the Prospectus or the Pricing Disclosure Package; and that their opinion
described in this sub-section is furnished as United States counsel for the Company to the
Representatives of the Underwriters and is solely for the benefit of the several Underwriters.
(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) and (iii) and the last paragraph of Section 6(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.
-20-
(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, substantially in the form set forth
in Annex II hereto or in other 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
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 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 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 agrees 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 the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement 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
-21-
information furnished to the Company by any Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus, as amended or supplemented, relating to such
Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company, each of its directors, officers, employees and agents,
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,
relating 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
by such Underwriter through the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company, each of its directors,
officers, employees and agents, 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
-22-
party and the indemnifying party, and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, 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, 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 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 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 or if the indemnified party failed to give the notice required under
sub-section (c) above, 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 on the one hand
-23-
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 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 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 under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the 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 may otherwise have and shall extend, upon the same
terms and conditions, to each officer, director, employee and agent
-24-
of the Company 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 or 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 the Company
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 and 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 Representatives and the Company as provided in
sub-section (a) above, the aggregate principal amount of Designated Securities which remains
unpurchased
-25-
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 or the Company, except
for the expenses to be borne by the Company 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 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, and shall survive delivery of and payment for the
Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section 10 hereof, the Company
shall not 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 Company as provided
herein, 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 the Company shall then be under no further
liability to any Underwriter with respect to such Designated Securities except as provided in
Sections 7 and 9 hereof.
13. (a) This Agreement shall be governed by, and construed in accordance with, the laws of the
State of New York.
(b) The Company 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. The Company 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.
The Company 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
-26-
immediately without any further action on the part of the Company. 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 13(b) and reasonably satisfactory to the Representatives. If the Process Agent shall cease
to act as the Company’s agent for service of process, the Company shall appoint, without
unreasonable delay, another such agent, and notify the Representatives of such appointment. The
Company 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. The Company hereby
authorizes and directs the Process Agent to accept such service. The Company further agrees that
service of process upon the Process Agent and notice by certified mail of said service to the
Company shall be deemed in every respect effective service of process upon the Company 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.
(c) The Company 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.
-27-
14. 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.
15. 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, 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.
16. This Agreement and each Pricing Agreement shall be binding on, and inure solely to the
benefit of, the Company, the Underwriters and, to the extent provided in Sections 9 and 12 hereof,
the officers and directors of the Company, 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 Securities from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
17. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the
one hand, and the 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, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company 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 on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company 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, in connection with such transaction or
the process leading thereto.
18. 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.
-28-
19. 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.
| Very truly yours, STATOIL ASA |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
-29-
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:
Statoil 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”). 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 14 of the
Underwriting Agreement and the address of the Representatives referred to in such Section 14 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 Article 9 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, the Company agrees to issue and sell to each of the Underwriters,
and each of the Underwriters agrees,
I-1
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 [•]
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 and the Company. 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 for examination upon
request.
| Very truly yours, STATOIL ASA |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Accepted as of the date hereof: [Name(s) of Representative(s)] |
||||
| By: | ||||
I-2
SCHEDULE I
| Principal | ||||
| Amount of | ||||
| Designated | ||||
| Securities to be | ||||
| Underwriters | Purchased | |||
| $ | ||||
Total |
$ | |||
I-3
SCHEDULE II
Issuer:
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
[$]
Price to Public:
___% of the
principal amount of the Designated Securities, plus accrued interest
from to
[and accrued
amortization, if any, from to
]
Purchase Price by Underwriters:
___% of the principal amount of the
Designated Securities, plus accrued interest from
to [and accrued amortization, if any, from to
]
Form of Designated Securities [subject to change to reflect clearance and settlement procedures for
Euro component]:
[Book-entry only form represented by one or more global registered form securities
deposited with The Depository Trust Company (“DTC”) or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours prior to the
Time of Delivery at the office of DTC.]
[Definitive form, to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery at the office of [The Depository Trust Company or its
designated custodian] [the Representatives].]
Specified funds for payment of purchase price:
[Immediately available funds] [Federal (same-day) funds]
Indenture:
[Indenture dated as of [•], among Statoil ASA and [•], as Trustee]
I-4
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing ___,]
Additional Amounts:
[Payable upon the occurrence of certain events relating to changes in tax law.]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the sinking fund, in
whole or in part at the option of the Company, in the amount of
[$] 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 ,
| Redemption | ||||
| Year | Price | |||
and thereafter at 100% of their principal amount, together in each case with accrued
interest to the redemption date.]
I-5
[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 [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
I-6
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.:
Other Terms:
Selling Restrictions
[In relation to each Member State of the European Economic Area which has implemented the
Prospectus Directive (each, a Relevant Member State), each Underwriter represents, warrants and
agrees 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 the Designated Securities to the public in that Relevant Member State,
except that it may, with effect from and including the Relevant Implementation Date, make an offer
of Designated Securities to the public in that Relevant Member State:
(a) in (or in Germany, where the offer starts within) the period beginning on the date of
publication of a prospectus in relation to those Designated Securities which has been approved by
the competent authority in that Relevant Member State or, where appropriate, approved in another
Relevant Member State and notified to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive and ending on the date which is 12 months after the date
of such publication;
I-7
(b) at any time to legal entities which are authorised or regulated to operate in the
financial markets or, if not so authorized or regulated, whose corporate purpose is solely to
invest in securities;
(c) at any time 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; or
(d) at any time in any other circumstances which do not require the publication by the Company
of 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 Security 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.]
[Any offer of the notes, each announcement thereof and any document in which an offer is made
or announced comply with the laws and regulations of any State where persons to whom the offer is
made are resident.]
I-8
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: |
I-9
SCHEDULE IV
Pricing Disclosure Package:
| 1. | [•] |
I-10
SCHEDULE V
Final Term Sheet(s)
I-11
ANNEX I TO THE PRICING AGREEMENT
Underwriting Agreement
I-12
Annex II
FORM OF COMFORT LETTER TO BE DELIVERED PURSUANT TO SECTION 8(j)
Pursuant to Section 8(j) of the Underwriting Agreement, the accountants shall furnish letters to
the Underwriters to the effect that:
(a) They are independent certified public accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the applicable published rules and regulations
thereunder;
(b) In their opinion, the consolidated financial statements and any supplementary financial
information and schedules (and, if applicable, prospective financial statements and/or pro forma
financial information) examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder;
(c) The unaudited selected financial information with respect to the consolidated results of
operations and financial position of the Company for the five most recent fiscal years included in
the Prospectus and included or incorporated by reference in Item 3.A of the Company’s Annual Report
on Form 20-F for the most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial statements for such five fiscal
years which were included or incorporated by reference in the Company’s Annual Reports on Form 20-F
for such fiscal years;
(d) They have compared the information in the Prospectus under selected captions with the
disclosure requirements of Regulation S-K and, on the basis of limited procedures specified in such
letter, nothing came to their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(e) On the basis of limited procedures, not constituting an examination in accordance with
generally accepted auditing standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their attention that caused them to
believe that:
II-1
(i) (A) the unaudited consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related published rules and
regulations, or (B) any material modifications should be made to the unaudited
consolidated statements of income, consolidated balance sheets and consolidated statements
of cash flows included or incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(ii) any other unaudited income statement data and balance sheet items included in
the Prospectus do not agree with the corresponding items in the unaudited consolidated
financial statements from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent with the basis for
the corresponding amounts in the audited consolidated financial statements included or
incorporated by reference in the Company’s Annual Report on Form 20-F for the most recent
fiscal year;
(iii) the unaudited financial statements which were not included in the Prospectus
but from which were derived the unaudited condensed financial statements referred to in
clause (i) and any unaudited income statement data and balance sheet items included in the
Prospectus and referred to in clause (ii) were not determined on a basis substantially
consistent with the basis for the audited financial statements included or incorporated by
reference in the Company’s Annual Report on Form 20-F for the most recent fiscal year;
(iv) any unaudited pro forma consolidated condensed financial statements included or
incorporated by reference in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the published rules
and regulations thereunder, or the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
(v) as of a specified date not more than five days prior to the date of such letter,
there have been any changes in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation rights, upon earn outs of
performance shares and upon conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or incorporated by reference
in the Prospectus) or any increase in the consolidated long-term debt of the Company and
its subsidiaries, or any decreases in consolidated net current assets or stockholders’
equity or other items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with amounts shown in the
II-2
latest balance sheet included or incorporated by reference in the Prospectus, except
in each case for changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
(vi) for the period from the date of the latest financial statements included or
incorporated by reference in the Prospectus to the specified date referred to in clause
(v) there were any decreases in consolidated net revenues or operating profit or the total
or per share amounts of consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the Representatives, in each
case as compared with the comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(f) In addition to the examination referred to in their report(s) included or incorporated by
reference in the Prospectus and the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraph (e) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents incorporated by reference) or in
Part II of, or in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have found them to be in
agreement.
II-3
