Attached files
file | filename |
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8-K - FORM 8-K - Noble Finance Co | h74528e8vk.htm |
EX-5.1 - EX-5.1 - Noble Finance Co | h74528exv5w1.htm |
EX-8.1 - EX-8.1 - Noble Finance Co | h74528exv8w1.htm |
EX-5.2 - EX-5.2 - Noble Finance Co | h74528exv5w2.htm |
Exhibit 1.1
EXECUTION VERSION
Noble Holding International Limited
$350,000,000 3.45% Senior Notes due 2015
$500,000,000 4.90% Senior Notes due 2020
$400,000,000 6.20% Senior Notes due 2040
$500,000,000 4.90% Senior Notes due 2020
$400,000,000 6.20% Senior Notes due 2040
Underwriting Agreement
July 21, 2010
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
745 Seventh Avenue
New York, New York 10019
SunTrust Robinson Humphrey, Inc.
3333 Peachtree Road
11th Floor
Atlanta, GA 30326
3333 Peachtree Road
11th Floor
Atlanta, GA 30326
Wells Fargo Securities, LLC
301 S. College Street
Charlotte, NC 28288
301 S. College Street
Charlotte, NC 28288
As representatives of the several Underwriters
named in Schedule I hereto,
Ladies and Gentlemen:
Noble Holding International Limited, a Cayman Islands exempted company limited by shares and an
indirect, wholly-owned subsidiary of the Parent Guarantor (defined below) (the Company),
proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the Underwriters) $350,000,000 aggregate principal amount of its
3.45% Senior Notes due 2015 (the 2015 Notes), $500,000,000 aggregate principal amount of its
4.90% Senior Notes due 2020 (the 2020 Notes) and $400,000,000 aggregate principal amount of its
6.20% Senior Notes due 2040 (the 2040 Notes and, together with the 2015 Notes and the 2020 Notes,
the Securities), and Noble Corporation, a Cayman Islands exempted company limited by shares (the
Parent Guarantor) and wholly-owned subsidiary of Noble Corporation, a Swiss corporation (Noble
Swiss), proposes, subject to the terms and conditions stated herein, to guarantee the Companys
payment obligations under the Securities and the indenture governing the Securities (the
Guarantee).
1. Each of the Company and the Parent Guarantor represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-165403) in respect of the
Securities has been filed with the Securities and Exchange Commission (the Commission)
under the Securities Act of 1933, as amended (the Act); such registration statement, and
any post-effective amendment thereto, has been declared effective by the Commission; and no
stop order suspending the effectiveness of such registration statement or any part thereof
has been issued and no proceeding for that purpose has been initiated or 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)(1) under the Act
has been received by the Parent Guarantor, the Company or any other co-registrant (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 this Agreement, is
hereinafter called the Basic Prospectus; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act is hereinafter called a Preliminary Prospectus; 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; the Basic
Prospectus, as amended and supplemented immediately prior to the Applicable Time (as defined
in Section 1(c) hereof), is hereinafter called the Pricing Prospectus; the form of the
final prospectus relating to the Securities filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called the
Prospectus; any reference herein to the Basic 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 12 of Form S-3 under the Act,
as of the date of such prospectus; any reference to any amendment or supplement to the Basic
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Securities filed with the Commission pursuant to Rule 424(b)
under the Act and any documents filed under the Securities Exchange Act of 1934, as amended
(the Exchange Act), and incorporated therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Parent Guarantor 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 any issuer free writing
prospectus as defined in Rule 433 under the Act relating to the Securities is hereinafter
called an Issuer Free Writing Prospectus);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any
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 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
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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 Parent Guarantor or the
Company by an Underwriter through Barclays Capital Inc., SunTrust Robinson Humphrey, Inc. or
Wells Fargo Securities, LLC expressly for use therein;
(c) For the purposes of this Agreement, the Applicable Time is 5:30 p.m. (Eastern
time) on the date of this Agreement; the Pricing Prospectus as supplemented by the final
term sheet prepared and filed pursuant to Section 5(a) hereof taken together (collectively,
the Pricing Disclosure Package), as of the Applicable Time did not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed on Schedule II(a) hereto 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 made in an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the Parent Guarantor or the
Company by an Underwriter through Barclays Capital Inc., SunTrust Robinson Humphrey, Inc. or
Wells Fargo Securities, LLC expressly for use therein;
(d) The documents incorporated by reference in the Pricing 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 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 not misleading; and any further
documents so filed and incorporated by reference in the Pricing 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 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 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 Parent Guarantor or the Company by an Underwriter through Barclays Capital
Inc., SunTrust Robinson Humphrey, Inc. or Wells Fargo Securities, LLC expressly for use
therein, or to any Form T-1; and no such documents were filed with the Commission since the
Commissions close of business on the business day immediately prior to the date of this
Agreement and prior to the execution of this Agreement, except as set forth on Schedule
II(b) hereto;
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(e) The Registration Statement conforms, and any further amendments to the Registration
Statement will conform, in all material respects to the requirements of the Act and the
Trust Indenture Act and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to each part of the Registration
Statement and any amendment 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 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 Parent Guarantor or the Company by an Underwriter
through Barclays Capital Inc., SunTrust Robinson Humphrey, Inc. or Wells Fargo Securities,
LLC expressly for use therein, or to any Form T-1;
(f) The Prospectus conforms, and any further supplements to the Prospectus will
conform, in all material respects to the requirements of the Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and does not and will not, as of
the applicable issue date of the Prospectus and any supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that 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 Parent Guarantor or the Company by an Underwriter through Barclays Capital
Inc., SunTrust Robinson Humphrey, Inc., or Wells Fargo Securities, LLC expressly for use
therein;
(g) Neither the Parent Guarantor nor any of its subsidiaries has sustained since the
date of the latest audited financial statements included or incorporated by reference in the
Pricing Prospectus any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or contemplated
in the Pricing Prospectus; and, since the respective dates as of which information is given
in the Registration Statement and the Pricing Prospectus, there has not been any change in
the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries
(other than changes, if any, in the ordinary course of business, in amounts outstanding
under the Parent Guarantors unsecured revolving credit facility) or any material adverse
change, or any development involving a prospective material adverse change, in or affecting
the general affairs, management, financial position, stockholders equity or results of
operations of the Parent Guarantor and its subsidiaries taken as a whole (a Material
Adverse Effect), otherwise than as set forth or contemplated in the Pricing Prospectus;
(h) The Parent Guarantor and its subsidiaries have good and marketable title to all
real property and good and marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except such as are described in
the Registration Statement and the Pricing Prospectus or such as do not materially affect
the value of such property or do not interfere with the use made and proposed to be made of
such property by the Parent Guarantor and its subsidiaries or where the failure to have such
title or to be free and clear of such liens, encumbrances
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and defects would not have a Material Adverse Effect; and any real property and
buildings held under lease by the Parent Guarantor and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are not material and
do not materially interfere with the use made and proposed to be made of such property and
buildings by the Parent Guarantor and its subsidiaries;
(i) Each of the Company and the Parent Guarantor has been duly incorporated and is
validly existing as an exempted company limited by shares in good standing under the laws of
the Cayman Islands, with power and authority (corporate and other) to own its properties and
conduct its business as described in the Pricing Prospectus, and is duly qualified as a
foreign corporation for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and each of the Parent
Guarantors subsidiaries set forth on Schedule III hereto (collectively, the Material
Subsidiaries, and each a Material Subsidiary) has been duly incorporated or formed, as
the case may be, and is validly existing as a corporation, limited partnership or limited
liability company, as the case may be, in good standing under the laws of its jurisdiction
of incorporation or formation;
(j) The Parent Guarantor has an authorized capitalization as set forth in the Pricing
Prospectus and all of the issued shares of capital stock of the Parent Guarantor have been
duly and validly authorized and issued and are fully paid and non-assessable; and all of the
issued shares of capital stock of each Material Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable and (except for directors
qualifying shares) are owned directly or indirectly by the Parent Guarantor, free and clear,
to the knowledge of the Parent Guarantor and the Company, of all liens, encumbrances or
claims;
(k) This Agreement has been duly authorized, executed and delivered by the Company and
the Parent Guarantor and, assuming the due authorization, execution and delivery of this
Agreement by or on behalf of the Underwriters, constitutes the valid and binding agreement
of the Company and the Parent Guarantor enforceable against the Company and the Parent
Guarantor in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting
creditors rights and to general equity principles;
(l) The Securities have been duly authorized and, when issued and delivered pursuant to
this Agreement, will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled to the benefits
provided by the Indenture, dated as of November 21, 2008, between the Company and The Bank
of New York Mellon Trust Company, N.A. (the Base Indenture), as supplemented by a second
supplemental indenture to be dated the Time of Delivery (the Supplemental Indenture and,
together with the Base Indenture, the Indenture); the Guarantee, which is set forth in the
Supplemental Indenture, has been duly authorized and, when the Supplemental Indenture is
executed and delivered pursuant to this Agreement, will have been duly executed,
authenticated, made and
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delivered and will constitute valid and legally binding obligations of the Parent
Guarantor entitled to the benefits provided by the Indenture; the Supplemental Indenture has
been duly authorized and will be duly executed and delivered by the Company and the Parent
Guarantor and duly qualified under the Trust Indenture Act and complies as to form with the
requirements of the Trust Indenture Act, and, at the Time of Delivery, the Indenture will
constitute a valid and legally binding instrument of the Company and the Parent Guarantor,
enforceable against the Company and the Parent Guarantor in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors rights and to general equity
principles; and the Securities, the Guarantee and the Indenture will conform to the
descriptions thereof contained in the Pricing Disclosure Package and the Prospectus;
(m) The issue and sale of the Securities, the making of the Guarantee and the
compliance by the Company and the Parent Guarantor, as applicable, with all of the
provisions of the Securities, the Guarantee, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated will not (i) conflict with
or result in a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Parent Guarantor or any of its subsidiaries is a party or by which
the Parent Guarantor or any of its subsidiaries is bound or to which any of the property or
assets of the Parent Guarantor or any of its subsidiaries is subject, (ii) result in any
violation of the provisions of the memoranda of association or articles of association of
the Parent Guarantor or the Company, (iii) result in any violation of any statute or any
order, rule or regulation of any court or governmental agency or body having jurisdiction
over the Parent Guarantor or any of its subsidiaries or any of their properties, except (x)
that any rights to indemnification and contribution set forth in this Agreement may be
limited by federal and state securities laws and public policy considerations and (y) with
respect to clause (i) above, for such conflicts, breaches or violations as would not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
and no consent, approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of the
Securities, the making of the Guarantee or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture, except such as have been, or
will have been prior to the Time of Delivery, obtained under the 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 Securities by the Underwriters;
(n) Neither the Parent Guarantor nor any of its Material Subsidiaries is in violation
of its memorandum of association, articles of association, certificate of incorporation or
other similar organizational document, as applicable; and neither the Parent Guarantor nor
any of its subsidiaries is in default in the performance or observance of any obligation,
covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it or any of its
properties may be bound, except any default that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
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(o) The statements set forth in the Pricing Prospectus and the Basic Prospectus under
the caption Description of the Notes and Description of the Debt Securities, insofar as
they purport to constitute a summary of the terms of the Securities, and under the caption
Underwriting, Plan of Distribution, Cayman Island Tax Considerations and Certain U.S.
Federal Income Tax Considerations, insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and fair in all material
respects;
(p) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Parent Guarantor or any of its subsidiaries is
a party or of which any property of the Parent Guarantor or any of its subsidiaries is the
subject that, if determined adversely to the Parent Guarantor or any of its subsidiaries,
would individually or in the aggregate reasonably be expected to have a Material Adverse
Effect; and, to the best knowledge of the Parent Guarantor and the Company, no such
proceedings are threatened or contemplated by governmental authorities or threatened by
others;
(q) Neither the Company nor the Parent Guarantor is or, after giving effect to the
offering and sale of the Securities and the application of the proceeds therefrom as
described in the Pricing Prospectus, will be an investment company, as such term is
defined in the Investment Company Act of 1940, as amended (the Investment Company Act);
(r) PricewaterhouseCoopers LLP, who have certified certain financial statements of the
Parent Guarantor and its subsidiaries, and have audited the Parent Guarantors internal
control over financial reporting, are independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder;
(s) Deloitte & Touche, who have certified certain financial statements of FDR Holdings
Limited and its subsidiaries (FDR), are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder;
(t) The pro forma financial information, together with the related notes thereto,
included or incorporated by reference in the Registration Statement, the Pricing Prospectus
and the Prospectus has been prepared in accordance with the applicable requirements of the
Act and the Exchange Act, as applicable, and the assumptions underlying such pro forma
financial information are reasonable and are set forth in the Registration Statement,
Pricing Prospectus and the Prospectus;
(u) The Parent Guarantor 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 Parent Guarantors
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 Parent Guarantors internal control
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over financial reporting is effective and the Parent Guarantor is not aware of any
material weaknesses in its internal control over financial reporting;
(v) Except as disclosed in the Parent Guarantors reports filed with the Commission
under the Exchange Act, since the date of the latest audited financial statements included
or incorporated by reference in the Pricing Prospectus, there have been no changes in the
Parent Guarantors internal control over financial reporting that have materially affected,
or are reasonably likely to materially affect, the Parent Guarantors internal control over
financial reporting;
(w) Except as would not, individually or in the aggregate, result in a Material Adverse
Effect, (A) neither the Parent Guarantor nor any of its Material Subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative interpretation thereof
including any judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, Hazardous Materials) or to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, Environmental Laws), (B) the Parent
Guarantor and each of its Material Subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are in compliance with their
requirements, (C) there are no pending or, to the knowledge of the Company and the Parent
Guarantor, threatened administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Parent Guarantor or any of its subsidiaries
and (D) to the knowledge of the Company and the Parent Guarantor, there are no events or
circumstances that might reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private party or governmental body
or agency, against or affecting the Parent Guarantor or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws; and
(x) The Parent Guarantor 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 Parent Guarantor and its subsidiaries is made known to
the Parent Guarantors principal executive officer and principal financial officer by others
within those entities; and such disclosure controls and procedures are effective.
(y) Except as disclosed in the Pricing Prospectus, none of the Parent Guarantor or any
of its subsidiaries, or, to the knowledge of the Parent Guarantor, any director, officer,
agent, employee or other person acting on behalf of the Parent Guarantor or any of its
subsidiaries, has violated or is in violation of any provision of the U.S.
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Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the FCPA), including, without limitation, by making use of the mails or any
means or instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value to any foreign
official (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA.
(z) The operations of the Parent Guarantor and its subsidiaries are and have been
conducted at all times in compliance with applicable financial recordkeeping and reporting
requirements of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (USA PATRIOT Act), and applicable money laundering statutes of
jurisdictions in which the Parent Guarantor and its subsidiaries conduct business, the rules
and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency in jurisdictions in which the
Parent Guarantor and its subsidiaries conduct business (collectively, the Money Laundering
Laws), and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Parent Guarantor or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of
the Parent Guarantor, threatened.
(aa) Neither the Parent Guarantor nor any of its subsidiaries nor, to the knowledge of
the Parent Guarantor, any director, officer, agent, employee or affiliate of the Parent
Guarantor or any of its subsidiaries is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC); and the
Company will not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company the respective principal amount of Notes set forth opposite the name of
such Underwriter in Schedule I hereto at a purchase price equal to (i) with respect to the 2015
Notes, 99.40% of the principal amount thereof plus accrued interest, if any, from July 26, 2010 to
the Time of Delivery (as defined below), (ii) with respect to the 2020 Notes, 99.075% of the
principal amount thereof plus accrued interest, if any, from July 26, 2010 to the Time of Delivery
and (iii) with respect to the 2040 Notes, 99.097% of the principal amount thereof plus accrued
interest, if any, from July 26, 2010 to the Time of Delivery.
3. Upon the authorization by you of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
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4. (a) The Securities to be purchased by each Underwriter hereunder will be represented by
definitive global Securities in book-entry form that will be deposited by or on behalf of
the Company with The Depository Trust Company (DTC) or its designated custodian. The
Company will deliver the 2015 Notes, the 2020 Notes and the 2040 Notes to Barclays Capital
Inc., SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities, LLC, for the account of
each Underwriter, against payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of Federal (same-day) funds to the account specified by the
Company to Barclays Capital Inc., SunTrust Robinson Humphrey, Inc. and Wells Fargo
Securities, LLC at least 48 hours in advance, by causing DTC to credit the Securities to the
respective account of Barclays Capital Inc., SunTrust Robinson Humphrey, Inc. and Wells
Fargo Securities, LLC at DTC. The Company will cause the certificates representing the
Securities to be made available to Barclays Capital Inc., SunTrust Robinson Humphrey, Inc.
and Wells Fargo Securities, LLC for checking at least 24 hours prior to the Time of Delivery
(as defined below) at the office of DTC or its designated custodian (the Designated
Office). The time and date of such delivery and payment shall be 9:30 a.m., New York City
time, on July 26, 2010 or such other time and date as Barclays Capital Inc., SunTrust
Robinson Humphrey, Inc., Wells Fargo Securities, LLC and the Company may agree upon in
writing. Such time and date are herein called the Time of Delivery.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the
parties hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities
and any additional documents requested by the Underwriters pursuant to Section 8(n) hereof,
will be delivered at the offices of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue,
New York, NY 10017 (the Closing Location), and the Securities will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at the Closing
Location at 2:00 p.m., New York City time, on the New York Business Day next preceding the
Time of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties hereto. For
the purposes of this Section 4, New York Business Day shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions in New York
City are generally authorized or obligated by law or executive order to close.
5. The Company and the Parent Guarantor agree with each of the Underwriters:
(a) (i) To prepare the Prospectus in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commissions close of business on
the second business day following the date of this Agreement; (ii) to make no further
amendment or any supplement to the Registration Statement, the Basic Prospectus or the
Prospectus prior to the Time of Delivery that shall be disapproved by you promptly after
reasonable notice thereof; (iii) to advise you, promptly after it 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 and to furnish you
with copies thereof; (iv) to prepare a final term sheet, containing solely a description of
the Securities, in substantially the form attached as Schedule IV hereto, and to file such
term sheet pursuant to Rule 433(d) under the Act within the time
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required by such Rule; (v) to file promptly all other material required to be filed by
the Company or the Parent Guarantor with the Commission pursuant to Rule 433(d) under the
Act; (vi) to file promptly all reports and any definitive proxy or information statements
required to be filed by the Company or the Parent Guarantor with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required in connection with the offering or
sale of the Securities; (vii) to advise you, promptly after it receives notice thereof, of
the issuance by the Commission or any state regulatory body of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or other prospectus in
respect of the Securities, of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(1)
under the Act, of the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose
or pursuant to Section 8A of the Securities Act, or of any request by the Commission for the
amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus or for additional information; (viii) in the event of the issuance of any
stop order or of any order preventing or suspending the use of any Preliminary Prospectus or
other prospectus or suspending any such qualification, to promptly use its best efforts to
obtain the withdrawal of such order; and (ix) in the event of any such issuance of a notice
of objection, promptly to take such steps including, without limitation, amending the
Registration Statement or filing a new registration statement, at its own expense, as may be
necessary to permit offers and sales of the Securities by the Underwriters (references
herein to the Registration Statement shall include any such amendment or new registration
statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a
form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the
Act not later than may be required by Rule 424(b) under the Act; and to make no further
amendment or supplement to such form of prospectus that shall be disapproved by you promptly
after reasonable notice thereof;
(c) Promptly from time to time to take such action as you may reasonably request to
qualify the Securities and the Guarantee for offering and sale under the securities laws of
such jurisdictions as you may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(d) Prior to 4:30 p.m., New York City time, on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish the Underwriters
with electronic copies of the Prospectus in New York City and prior to the Time of Delivery
to furnish the Underwriters with written copies of the Prospectus, in such quantities as you
may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required at any time
11
prior to the expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Securities 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 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 Act, the Exchange Act or the Trust Indenture Act, to notify you and upon your
request to file such document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many written and electronic copies as you may from time
to time reasonably request of an amended Prospectus or a supplement to the Prospectus that
will correct such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to
in Rule 173(a) under the Act) in connection with sales of any of the Securities at any time
nine months or more after the time of issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as many written and
electronic copies as you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(e) To make generally available to its securityholders as soon as practicable, but in
any event not later than 16 months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement of the Parent Guarantor and
its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of the Parent
Guarantor, Rule 158);
(f) The Company and the Parent Guarantor will not take, directly or indirectly, any
action designed to cause or result in, or that might reasonably be expected to cause or
result in, stabilization or manipulation of the price of the Securities to facilitate the
sale or resale of the Securities;
(g) During the period beginning from the date hereof and continuing to and including
the later of the Time of Delivery and such earlier time as you may notify the Company, not
to offer, sell, contract to sell, or otherwise dispose of any debt securities of the Company
or the Parent Guarantor that mature more than one year after such Time of Delivery and that
are substantially similar to the Securities or the Guarantee;
(h) The Company and the Parent Guarantor will cooperate with the Underwriters and with
counsel to the Underwriters in connection with the qualification of the Securities for
offering and sale by the Underwriters and by dealers under the securities laws of such
jurisdictions as the Underwriters may designate and will file such consents to service of
process or other documents necessary or appropriate in order to effect such qualification
and to permit the continuance of sales and dealings in such jurisdictions for as long as may
be necessary to complete the distribution of the Securities, provided, however, that in no
event will the Company or the Parent Guarantor
12
be obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to service of process in suits, other
than for actions or proceedings arising out of the offering of the Securities, in any
jurisdiction where it is not now so subject; and
(i) To use the net proceeds received by it from the sale of the Securities pursuant to
this Agreement in the manner specified in the Pricing Prospectus under the caption Use of
Proceeds.
6. (a) (i) The Company and the Parent Guarantor each represents and agrees that,
other than the final term sheet prepared and filed pursuant to Section 5(a) hereof, without
the prior consent of Barclays Capital Inc., SunTrust Robinson Humphrey, Inc. and Wells Fargo
Securities, LLC, it has not made and will not make any offer relating to the Securities or
the Guarantee that would constitute a free writing prospectus as defined in Rule 405 under
the Act;
(ii) each Underwriter represents and agrees that, without the prior consent of the
Company, Barclays Capital Inc., SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities,
LLC, other than (x) one or more free writing prospectuses as defined in Rule 405 under the
Act to the extent it or they contain(s) the terms of the Securities, the Guarantee or the
offering that do not reflect the final terms of the Securities, the Guarantee or the
offering and (y) one or more term sheets relating to the Securities, the Guarantee or the
offering that do not contain substantive changes from or additions to the final term sheet
referred to in Section 5(a) hereof, it has not made and will not make any offer relating to
the Securities that would constitute a free writing prospectus; and
(iii) any such free writing prospectus the use of which has been consented to by the
Company, Barclays Capital Inc., SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities,
LLC (including the final term sheet prepared and filed pursuant to Section 5(a) hereof) is
listed on Schedule II(a) hereto;
(b) The Company and the Parent Guarantor have complied and will comply with the
requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and legending; and
(c) The Company and the Parent Guarantor agree that, if at any time following issuance
of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such
Issuer Free Writing Prospectus would conflict with the information 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 or
the Parent Guarantor will give prompt notice thereof to Barclays Capital Inc., SunTrust
Robinson Humphrey, Inc. and Wells Fargo Securities, LLC and, if requested by Barclays
Capital Inc., SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities, LLC, will prepare
and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other
document that will correct such
13
conflict, statement or omission; provided, however, that this agreement shall not apply
to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon
and in conformity with information furnished in writing to the Company by an Underwriter
through Barclays Capital Inc., SunTrust Robinson Humphrey, Inc. or Wells Fargo Securities,
LLC expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Companys counsel
and accountants in connection with the registration of the Securities and the Guarantee under the
Act and all other expenses in connection with the preparation, printing, reproduction and filing of
the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free
Writing Prospectus, 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
producing this Agreement, the Indenture, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering, purchase, sale and
delivery of the Securities and the Guarantee; (iii) any expenses in connection with the
qualification of the Securities and the Guarantee for offering and sale under state securities laws
as provided in Section 5(c) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv)
any fees charged by securities rating services for rating the Securities; (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in connection with, any
required review by the Financial Industry Regulatory Authority of the terms of the sale of the
Securities and the Guarantee; (vi) the cost of preparing the Securities and the Guarantee; (vii)
the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of
counsel for the Trustee in connection with the Indenture, the Securities and the Guarantee; (viii)
any road show or other investor presentations relating to the offering of the Securities
(including, without limitation, for meetings and travel); and (ix) all other costs and expenses
incident to the performance of its obligations hereunder that 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 obligations of the Underwriters hereunder shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the Company and the
Parent Guarantor herein are, at and as of the Time of Delivery, true and correct, the condition
that the Company and the Parent Guarantor shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet
contemplated by Section 5(a) hereof, and any other material required to be filed by the
Company or the Parent Guarantor pursuant to Rule 433(d) under the Act, shall have been filed
with the Commission within the applicable time periods prescribed for such filings by Rule
433; no stop order suspending the effectiveness of the
14
Registration Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission and no notice of
objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(1) under the Act shall have been received; no stop
order suspending or preventing the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied with to your
reasonable satisfaction;
(b) Simpson Thacher & Bartlett LLP, counsel for the Underwriters, shall have furnished
to you such written opinion or opinions, dated the Time of Delivery, in form and substance
satisfactory to you, with respect to certain matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Baker Botts L.L.P., counsel for the Company and the Parent Guarantor, shall have
furnished to you their written legal opinion letter, dated the Time of Delivery, in form and
substance satisfactory to you, and substantially as set forth on Annex I hereto;
(d) Maples and Calder, Cayman Islands counsel for the Company and the Parent Guarantor,
shall have furnished to you their written legal opinion letter, dated the Time of Delivery,
in form and substance satisfactory to you, and substantially as set forth on Annex II
hereto;
(e) William E. Turcotte, Senior Vice President and General Counsel of Noble
Corporation, a Swiss corporation and the parent company of the Parent Guarantor, shall have
furnished to you his written legal opinion letter, dated the Time of Delivery, in form and
substance satisfactory to you, and substantially as set forth on Annex III hereto;
(f) Concurrently with the execution of this Agreement, you shall have received from
PricewaterhouseCoopers LLP, the Parent Guarantors independent registered public accounting
firm, a comfort letter (the initial comfort letter) addressed to you on behalf of the
Underwriters, dated the date hereof, and in form and substance satisfactory to you (i)
confirming that they are an independent registered public accounting firm with respect to
the Parent Guarantor within the meaning of the Securities Act and the Public Accounting
Oversight Board (PCAOB) and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial information is given
in the most recent Preliminary Prospectus, as of a date not more than three days prior to
the date hereof), the conclusions and findings of PricewaterhouseCoopers LLP with respect to
the financial information and other matters ordinarily covered by accountants comfort
letters to underwriters in connection with registered public offerings;
15
(g) You shall have received a bring-down comfort letter (the bring-down comfort
letter) from PricewaterhouseCoopers LLP, the Parent Guarantors independent registered
public accounting firm, addressed to you on behalf of the Underwriters, dated the Time of
Delivery, and in form and substance satisfactory to you (i) confirming that they are an
independent registered public accounting firm with respect to the Parent Guarantor within
the meaning of the Securities Act and the PCAOB and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the bring-down comfort letter (or, with
respect to matters involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date not more than three
days prior to the date of the bring-down comfort letter), the conclusions and findings of
PricewaterhouseCoopers LLP with respect to the financial information and other matters
covered by the initial comfort letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial comfort letter;
(h) Concurrently with the execution of this Agreement, you shall have received from
Deloitte & Touche LLP, FDR Holdings Limiteds independent registered public accounting firm,
a comfort letter (the initial comfort letter) addressed to you on behalf of the
Underwriters, dated the date hereof, and in form and substance satisfactory to you (i)
confirming that they are an independent registered public accounting firm with respect to
FDR Holdings Limited within the meaning of Rule 101 of the AICPAs Code of Professional
Conduct and its interpretations and rulings, (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective dates as of which
specified financial information is given in the most recent Preliminary Prospectus, as of a
date not more than three days prior to the date hereof), the conclusions and findings of
Deloitte & Touche LLP with respect to the financial information and other matters FDR
Holdings Limited ordinarily covered by accountants comfort letters to underwriters in
connection with registered public offerings;
(i) You shall have received a bring-down comfort letter (the bring-down comfort
letter) from Deloitte & Touche LLP, FDR Holdings Limiteds independent registered public
accounting firm, addressed to you on behalf of the Underwriters, dated the Time of Delivery,
and in form and substance satisfactory to you (i) confirming that they are an independent
registered public accounting firm with respect to FDR Holdings Limited within the meaning of
Rule 101 of the AICPAs Code of Professional Conduct and its interpretations and rulings,
(ii) stating, as of the date of the bring-down comfort letter (or, with respect to matters
involving changes or developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than three days prior to the
date of the bring-down comfort letter), the conclusions and findings of Deloitte & Touche
LLP with respect to the financial information of FDR Holdings Limited and other matters
covered by the initial comfort letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial comfort letter;
16
(j) Neither the Parent Guarantor nor any of its subsidiaries shall have sustained since
the date of the latest audited financial statements included or incorporated by reference in
the Pricing Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or contemplated
in the Pricing Prospectus, and (ii) since the respective dates as of which information is
given in the Pricing Prospectus there shall not have been any change in the capital stock or
long-term debt of the Parent Guarantor or any of its subsidiaries (other than changes, if
any, in the ordinary course of business, in amounts outstanding under the Parent Guarantors
unsecured revolving credit facility) or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial position,
stockholders equity or results of operations of the Parent Guarantor and its subsidiaries,
otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which,
in any such case described in clause (i) or (ii), is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner contemplated in the
Prospectus;
(k) On or after the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the debt securities of the Company or the Parent Guarantor by any
nationally recognized statistical rating organization, as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible negative
implications, its rating of any such debt securities;
(l) On or after the Applicable Time there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally on the New York
Stock Exchange; (ii) a suspension or material limitation in trading in Noble Swiss
securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities or a material disruption
in commercial banking or securities settlement or clearance services in the United States;
(iv) the outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (v) the occurrence of any
other calamity or crisis or any change in financial, political or economic conditions in the
United States or elsewhere, if the effect of any such event specified in clause (iv) or (v)
in your judgment makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Securities on the terms and in the manner contemplated in the
Prospectus;
(m) The Company and the Parent Guarantor shall have complied with the provisions of
Section 5(d) hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement; and
(n) The Company and the Parent Guarantor shall have furnished or caused to be furnished
to you at the Time of Delivery certificates of officers of the Company and the Parent
Guarantor, respectively, satisfactory to you as to the accuracy of the respective
representations and warranties of the Company and the Parent Guarantor herein at and as
17
of such time, as to the performance by the Company and the Parent Guarantor of all of
their respective obligations hereunder to be performed at or prior to such time, as to the
matters set forth in subsections (a) and (j) of this Section and as to such other matters as
you may reasonably request.
9. (a) The Company and the Parent Guarantor, jointly and severally, will 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 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 Basic Prospectus, any Preliminary Prospectus,
the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer
Free Writing Prospectus or any issuer information filed or required to be filed pursuant
to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided, however, that
neither the Company nor the Parent Guarantor shall be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus, in reliance upon and in conformity with written information furnished to
the Company or the Parent Guarantor by any Underwriter through Barclays Capital Inc.,
SunTrust Robinson Humphrey, Inc. or Wells Fargo Securities, LLC expressly for use therein.
(b) Each Underwriter severally, but not jointly, will indemnify and hold harmless the
Company and the Parent Guarantor against any losses, claims, damages or liabilities to which
the Company or the Parent Guarantor may become subject, under the 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 Basic Prospectus, any Preliminary Prospectus,
the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, 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 Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus or any such amendment or supplement thereto, or any
Issuer Free Writing Prospectus, in reliance upon and in conformity with written information
furnished to the Company or the Parent Guarantor by such Underwriter through Barclays
Capital Inc., SunTrust Robinson Humphrey, Inc. or Wells Fargo Securities, LLC expressly for
use therein; and will reimburse the Company and the Parent Guarantor for any legal or other
expenses
18
reasonably incurred by the Company or the Parent Guarantor 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 subsection (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 subsection, 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 that it may have to any
indemnified party otherwise than under such subsection. 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 be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment (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 subsection (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, on the other, from
the offering of the Securities. 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 subsection (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 and the Parent Guarantor, on the one hand, and the Underwriters, on the other, in
connection with the statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
19
Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or the Parent
Guarantor, on the one hand, or the Underwriters, on the other, and the parties relative
intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Parent Guarantor and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this subsection (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 that does not take account of the
equitable considerations referred to above in this subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of any damages
that 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Parent Guarantor under this Section 9 shall
be in addition to any liability that the Company or the Parent Guarantor may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act and each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 9 shall be in
addition to any liability that the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the Company and
the Parent Guarantor and to each person, if any, who controls the Company or the Parent
Guarantor within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities that
it has agreed to purchase hereunder, you may in your discretion arrange for you or another
party or other parties to purchase such Securities on the terms contained herein. If within
36 hours after such default by any Underwriter you do not arrange for the purchase of such
Securities, then the Company shall be entitled to a further period of 36 hours within which
to procure another party or other parties satisfactory to you to purchase such Securities on
such terms. In the event that, within the respective prescribed periods, you notify the
Company that you have so arranged for the purchase of such Securities, or the Company
notifies you that it has so arranged for the purchase of such Securities, you or the Company
shall have the right to postpone the Time of Delivery for
20
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, or in any other documents or
arrangements, and the Company and the Parent Guarantor agree to file promptly any amendments
or supplements to the Registration Statement or the Prospectus which in your opinion may
thereby be made necessary. The term Underwriter as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had originally
been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Securities that remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of all the Securities, then the
Company shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata share (based
on the principal amount of Securities which such Underwriter agreed to purchase hereunder)
of the 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 Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of Securities that remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Securities, or if the Company
shall not exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Parent Guarantor, 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, the Parent Guarantor and the several Underwriters, as set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as to the results thereof) made
by or on behalf of any Underwriter or any controlling person of any Underwriter, the Company or any
officer or director or controlling person of the Company or the Parent Guarantor or any officer or
director or controlling person of the Parent Guarantor, and shall survive delivery of and payment
for the Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, neither the Company
nor the Parent Guarantor shall then be under any liability to any Underwriter except as provided in
Sections 7 and 9 hereof; but, if for any other reason, the Securities and the Guarantee are not
delivered by or on behalf of the Company and the Parent Guarantor as provided herein,
21
the Company will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the Securities, but
neither the Company nor the Parent Guarantor shall then be under further liability to any
Underwriter except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you 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 you jointly or by Barclays Capital Inc., SunTrust
Robinson Humphrey, Inc. or Wells Fargo Securities, LLC on behalf of you as the representatives.
14. All statements, requests, notices and agreements hereunder shall be in writing, and if to
the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as
representatives in care of Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Fax
No.: 646-834-8133, Attention: Syndicate Registration; and if to the Company or the Parent Guarantor
shall be delivered or sent by mail, telex or facsimile transmission to the address of the Parent
Guarantor set forth in the most recent Preliminary Prospectus; provided, however, that any notice
to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its Underwriters
Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the
Company and the Parent Guarantor by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company, the Parent Guarantor and, to the extent provided in Sections 9 and 11
hereof, the officers and directors of the Company and the Parent Guarantor and each person who
controls the Company or the Parent Guarantor or any Underwriter, 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. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such purchase.
16. Time shall be of the essence of this Agreement. As used herein, the term business day
shall mean any day when the Commissions office in Washington, D.C. is open for business.
17. The Underwriters severally confirm that the last paragraph of the cover page of the most
recent Preliminary Prospectus and the Prospectus, the names of each of the Underwriters under the
caption Underwriting in the most recent Preliminary Prospectus and the Prospectus and the
concession and discount figures in the third paragraph and the statements in the seventh and eighth
paragraphs under the caption Underwriting in the most recent Preliminary Prospectus and the
Prospectus, constitute the only written information furnished to the Company and the Parent
Guarantor by you on behalf of the Underwriters, as referred to in Sections 1(b), 1(c), 1(d), 1(e),
1(f) and 9(a) and 9(b) of this Agreement.
18. The Company and the Parent Guarantor acknowledge and agree that (i) the purchase and sale
of the Securities and the Guarantee pursuant to this Agreement is an arms-
22
length commercial transaction between the Company and the Parent Guarantor, on the one hand,
and the several Underwriters, on the other, (ii) in connection therewith and with the process
leading to such transaction, each Underwriter is acting solely as a principal and not the agent or
fiduciary of the Company or the Parent Guarantor, (iii) no Underwriter has assumed an advisory or
fiduciary responsibility in favor of the Company or the Parent Guarantor with respect to the
offering contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company or the Parent Guarantor on other
matters) or any other obligation to the Company or the Parent Guarantor except the obligations
expressly set forth in this Agreement or any other effective agreement between you and the Company
or the Parent Guarantor and (iv) the Company and the Parent Guarantor have consulted their own
legal and financial advisors to the extent they deemed appropriate. The Company and the Parent
Guarantor agree that they will not claim that the Underwriters, or any of them, has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company or
the Parent Guarantor, in connection with such transaction or the process leading thereto.
19. The obligation of the Company and the Parent Guarantor in respect of any sum due to any
Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not
be discharged until the first business day, following receipt by such Underwriter of any sum
adjudged to be so due in such other currency, on which (and only to the extent that) such
Underwriter may in accordance with normal banking procedures purchase United States dollars with
such other currency; if the United States dollars so purchased are less than the sum originally due
to such Underwriter hereunder, the Company and the Parent Guarantor agree, as a separate obligation
and notwithstanding any such judgment, to indemnify such Underwriter against such loss. If the
United States dollars so purchased are greater than the sum originally due to such Underwriter
hereunder, such Underwriter agrees to pay to the Company or the Parent Guarantor, as the case may
be, an amount equal to the excess of the dollars so purchased over the sum originally due to such
Underwriter hereunder.
20. The Company and the Parent Guarantor each hereby submits to the non-exclusive jurisdiction
of the federal and state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
The Company and the Parent Guarantor each irrevocably appoints Noble Drilling Services Inc. as its
authorized agent upon which process may be served in any such suit or proceeding, and agrees that
service of process upon such agent, and written notice of said service to the Company or the Parent
Guarantor, as applicable, by the person serving the same to Noble Drilling Services Inc. at 13135
South Dairy Ashford, Suite 800, Sugar Land, TX 77478, shall be deemed in every respect effective
service of process upon the Company or the Parent Guarantor, as applicable, in any such suit or
proceeding.
21. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company or the Parent Guarantor, on the one hand, and the Underwriters, or any of
them, on the other, with respect to the subject matter hereof.
22. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
23
23. The Company, the Parent Guarantor and each of the Underwriters hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
24. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
25. Notwithstanding anything herein to the contrary, the Company and the Parent Guarantor are
authorized to disclose to any persons the U.S. federal and state income tax treatment and tax
structure of the potential transaction and all materials of any kind (including tax opinions and
other tax analyses) provided to the Company or the Parent Guarantor relating to that treatment and
structure without the Underwriters imposing any limitation of any kind. However, any information
relating to the tax treatment and tax structure shall remain confidential (and the foregoing
sentence shall not apply) to the extent necessary to enable any person to comply with securities
laws. For this purpose, tax structure is limited to any facts that may be relevant to that
treatment.
24
If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and the Parent Guarantor. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is 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, but without warranty on your part as to the authority of the signers thereof.
Very truly yours, | ||||||
Noble Holding International Limited | ||||||
By: | /s/ Alan R. Hay | |||||
Director | ||||||
Noble Corporation (Cayman Islands) | ||||||
By: | /s/ Alan R. Hay | |||||
Director |
25
Accepted as of the date hereof: | ||||
Barclays Capital Inc. | ||||
By: |
/s/ Paul Bjorneby | |||
Title: Managing Director | ||||
SunTrust Robinson Humphrey, Inc. | ||||
By: |
/s/ Christopher S. Grumboski | |||
Title: Director | ||||
Wells Fargo Securities, LLC | ||||
By: |
/s/ Carolyn Hurley | |||
Title: Director | ||||
On behalf of each of the Underwriters |
26
SCHEDULE I
Principal Amount of | Principal Amount of | Principal Amount of | ||||||||||
2015 Notes to be | 2020 Notes to be | 2040 Notes to be | ||||||||||
Underwriter | Purchased | Purchased | Purchased | |||||||||
Barclays Capital Inc. |
$ | 105,000,000 | $ | 150,000,000 | $ | 120,000,000 | ||||||
SunTrust Robinson Humphrey, Inc. |
105,000,000 | 150,000,000 | 120,000,000 | |||||||||
Wells Fargo Securities, LLC |
59,500,000 | 85,000,000 | 68,000,000 | |||||||||
HSBC Securities (USA) Inc. |
31,500,000 | 45,000,000 | 36,000,000 | |||||||||
Mitsubishi UFJ Securities International plc |
17,500,000 | 25,000,000 | 20,000,000 | |||||||||
BNP Paribas Securities Corp. |
17,500,000 | 25,000,000 | 20,000,000 | |||||||||
DnB NOR Markets, Inc. |
14,000,000 | 20,000,000 | 16,000,000 | |||||||||
Total |
$ | 350,000,000 | $ | 500,000,000 | $ | 400,000,000 | ||||||
Schedule I
SCHEDULE II
(a) | Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package: | |
Electronic road show presentation. | ||
(b) | Additional Documents Incorporated by Reference: | |
None. |
Schedule II
SCHEDULE III
MATERIAL SUBSIDIARIES
MATERIAL SUBSIDIARIES
Name of Subsidiary | Jurisdiction of Incorporation or Formation | |
Noble Holding (U.S.) Corporation
|
Delaware | |
Noble Drilling Corporation
|
Delaware | |
Noble Drilling (U.S.) LLC
|
Delaware | |
Noble Holding International Limited
|
Cayman Islands | |
Noble Drilling Holding LLC
|
Delaware | |
Noble Asset Company Limited
|
Cayman Islands | |
Noble International Limited
|
Cayman Islands |
Schedule III
SCHEDULE IV
NOBLE HOLDING INTERNATIONAL LIMITED
UNCONDITIONALLY GUARANTEED BY
NOBLE CORPORATION (CAYMAN ISLANDS)
UNCONDITIONALLY GUARANTEED BY
NOBLE CORPORATION (CAYMAN ISLANDS)
3.45% SENIOR NOTES DUE 2015
4.90% SENIOR NOTES DUE 2020
6.20% SENIOR NOTES DUE 2040
4.90% SENIOR NOTES DUE 2020
6.20% SENIOR NOTES DUE 2040
Issuer:
|
Noble Holding International Limited | |
Guarantor:
|
Noble Corporation (Cayman Islands) |
SENIOR NOTES | SENIOR NOTES | SENIOR NOTES | ||||
DUE 2015 | DUE 2020 | DUE 2040 | ||||
Security Description:
|
3.45% Senior Notes due 2015 | 4.90% Senior Notes due 2020 | 6.20% Senior Notes due 2040 | |||
Principal Amount:
|
$350,000,000 | $500,000,000 | $400,000,000 | |||
Maturity Date:
|
August 1, 2015 | August 1, 2020 | August 1, 2040 | |||
Benchmark Treasury:
|
1.875% due June 30, 2015 | 3.50% due May 15, 2020 | 4.625% due February 15, 2040 | |||
Benchmark Treasury Yield:
|
1.650% | 2.885% | 3.902% | |||
Spread to Benchmark Treasury:
|
+180 bps | +205 bps | +230 bps | |||
Yield to Maturity:
|
3.450% | 4.935% | 6.202% | |||
Coupon:
|
3.450% | 4.900% | 6.200% | |||
Initial Price to Public:
|
100% per Senior Note | 99.725% per Senior Note | 99.972% per Senior Note | |||
Proceeds to Issuer before expenses:
|
$347,900,000 | $495,375,000 | $396,388,000 | |||
Optional Redemption Provisions:
|
Make-whole call at any time at a discount rate of Treasury plus 30 bps | Make-whole call at any time at a discount rate of Treasury plus 30 bps | Make-whole call at any time at a discount rate of Treasury plus 35 bps | |||
CUSIP / ISIN:
|
65504LAB3 / US65504LAB36 |
65504LAC1 / US65504LAC19 |
65504LAD9 / US65504LAD91 |
Interest Payment Dates:
|
Semi-annually on February 1 and August 1, commencing on February 1, 2011 | |
Trade Date:
|
July 21, 2010 | |
Settlement Date:
|
July 26, 2010 | |
Legal Format:
|
SEC Registered | |
Denominations:
|
$2,000 and integral multiples of $1,000 in excess thereof |
Schedule IV-1
Special Mandatory Redemption:
|
If the acquisition of FDR Holdings Ltd. is not consummated or the related merger agreement is terminated on or prior to 5:00 p.m., New York City time, on September 30, 2010, the issuer will be required to redeem the notes at 101% of the aggregate principal amount of the notes, plus accrued and unpaid interest from the date of initial issuance to but excluding the date of redemption. | |
Use of Proceeds:
|
NHIL and Noble-Cayman intend to use the net proceeds, together with cash on hand of approximately $465 million, to finance the cash portion of the purchase price for the acquisition of FDR Holdings Ltd. | |
Joint Book-Running Managers:
|
Barclays Capital Inc., SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities, LLC | |
Co-Managers:
|
HSBC Securities (USA) Inc., Mitsubishi UFJ Securities (USA), Inc., BNP Paribas Securities Corp., and DnB NOR Markets, Inc. |
The issuer has filed a registration statement (including a prospectus) with the U.S.
Securities and Exchange Commission (SEC) for this offering. Before you invest, you should read the
prospectus for this offering in that registration statement, and other documents the issuer and the
guarantor have filed with the SEC for more complete information about the issuer, the guarantor and
this offering. You may get these documents for free by searching the SEC online database (EDGAR®)
at www.sec.gov. Alternatively, we will arrange to send you a copy of the prospectus if you request
it by calling Barclays Capital Inc. toll-free at (888)-603-5847, SunTrust Robinson Humphrey, Inc.
toll-free at (800)-685-4786 or Wells Fargo Securities, LLC toll-free at (800)-326-5897.
Schedule IV-2
ANNEX I
FORM OF OPINION OF BAKER BOTTS L.L.P.
FOR THE COMPANY AND THE PARENT GUARANTOR
1. When the Securities have been authenticated in the manner set forth in the Indenture and
delivered against due payment therefor pursuant to the terms of this Agreement, the Securities and
the Guarantee will constitute valid and legally binding obligations of the Company and the Parent
Guarantor, respectively, enforceable against the Company and the Parent Guarantor in accordance
with their terms, except as enforceability is subject to (i) any applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or conveyance or other laws relating to or
affecting creditors rights generally, (ii) general principles of equity (regardless of whether
that enforceability is considered in a proceeding in equity or at law) and (iii) any implied
covenants of good faith and fair dealing. The Securities and the Guarantee, in the forms certified
by the Company and the Parent Guarantor, as applicable, as of the date of such opinion letter, and
the Indenture conform in all material respects to the descriptions thereof contained in the final
term sheet prepared and filed pursuant to Section 5(a) of this Agreement and in the information set
forth under the captions Description of Debt Securities and Description of the Notes in the
Pricing Prospectus and the Prospectus.
2. Assuming the due authorization, execution and delivery thereof by the Company, the Parent
Guarantor and the Trustee, the Indenture constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as enforceability is
subject to (i) any applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or conveyance or other laws relating to or affecting creditors rights generally, (ii)
general principles of equity (regardless of whether that enforceability is considered in a
proceeding in equity or at law) and (iii) any implied covenants of good faith and fair dealing. The
Indenture has been qualified under the Trust Indenture Act.
3. The execution, delivery and performance by the Company and the Parent Guarantor of this
Agreement and the Indenture and the consummation by the Company and the Parent Guarantor of the
transactions contemplated thereby, do not violate or result in any breach of (i) any agreement or
instrument filed as an exhibit to or incorporated by reference into the Registration Statement or
(ii) any Applicable Laws, except, in the case of clause (i), for such violations or breaches that,
individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect. Applicable Laws is defined as the laws of the State of New York, the laws of the State of
Texas and the laws of the United States of America that, in such counsels experience, are normally
applicable to transactions of the type contemplated by this Agreement and the Indenture.
4. No consent, approval, authorization, order, registration or qualification of or with any
Applicable Governmental Authority is required for the issue and sale by the Company of the
Securities, the making of the Guarantee by the Parent Guarantor or the consummation by the Company
or the Parent Guarantor of the other transactions contemplated by this Agreement or the Indenture,
except such as have been obtained under the Act and the Trust Indenture Act, and
Annex I-1
such consents, approvals, authorizations, registrations or qualifications as may be required
under the state securities or blue sky laws in connection with the purchase and distribution of the
Securities by the Underwriters. Applicable Governmental Authority is defined as any governmental
body, agency or court of the United States of America, the State of Texas or the State of New York.
5. Neither the Company nor the Parent Guarantor is, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as described in the
Prospectus neither will be, an investment company, as such term is defined in the Investment
Company Act.
Such counsel will also provide the following:
Such counsel has reviewed the Registration Statement, the Pricing Disclosure Package and the
Prospectus and has participated in conferences with officers and other representatives of the
Company and the Parent Guarantor, with representatives of the Parent Guarantors independent
registered public accounting firm and with you and your counsel, at which the contents of the
Registration Statement, the Pricing Disclosure Package, the Prospectus and related matters were
discussed. The purpose of such counsels professional engagement was not to establish or confirm
factual matters set forth in the Registration Statement, the Pricing Disclosure Package or the
Prospectus, and such counsel has not undertaken to verify independently any of the factual matters
in such documents. Moreover, many of the determinations required to be made in the preparation of
the Registration Statement, the Pricing Disclosure Package and the Prospectus involve matters of a
non-legal nature. Accordingly, such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Pricing Disclosure Package and the Prospectus (except to the extent
stated in the last sentence of paragraph 4 above). Subject to the foregoing and on the basis of
the information such counsel gained in the course of performing the services referred to above,
such counsel advises you that:
(a) the Registration Statement, as of the latest effective time, the Pricing
Prospectus, as of the Applicable Time, and the Prospectus, as of its date and the Time of
Delivery, appear on their face to be appropriately responsive in all material respects to
the requirements of the Securities Act and the rules and regulations of the Commission
thereunder; and
(b) nothing came to such counsels attention that caused it to believe that:
(i) the Registration Statement, as of the latest effective time, contained an
untrue statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(ii) the Pricing Disclosure Package, as of the Applicable Time, included an
untrue statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or
Annex I-2
(iii) the Prospectus, as of its date and as of the Time of Delivery, included
or includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
it being understood that in each case such counsel has not been asked to, and does not, express any
belief with respect to (a) the financial statements and schedules or other financial or accounting
information contained or included or incorporated by reference therein or omitted therefrom, (b)
representations and warranties and other statements of fact contained in the exhibits to the
Registration Statement or documents incorporated by reference in the Registration Statement or (c)
that part of the Registration Statement that constitutes the Form T-1.
Annex I-3
ANNEX II
FORM OF OPINION OF CAYMAN ISLANDS COUNSEL
FOR THE COMPANY AND THE PARENT GUARANTOR
We have acted as Cayman Islands counsel to Noble Holding International Limited (the Company) in
connection with the issue of US$350,000,000 aggregate principal amount of its 3.45% Senior Notes
due 2015, US$500,000,000 aggregate principal amount of its 4.90% Senior Notes due 2020 and
US$400,000,000 aggregate principal amount of its 6.20% Senior Notes due 2040 (collectively, the
Notes) pursuant to the Indenture (the Original Indenture) dated as of 21 November 2008 between
the Company, as issuer, and The Bank of New York Mellon Trust Company, N.A., as trustee and the
Second Supplemental Indenture (the Second Supplemental Indenture) to be dated as of 26 July 2010
between the Company, as issuer; Noble Corporation (Cayman Islands), as guarantor (the Parent
Guarantor) of the Notes (the Guarantee) ; and The Bank of New York Mellon Trust Company, N.A.,
as trustee (the Original Indenture and Second Supplemental Indenture are herein collectively
referred to as the Indenture).
1 | Documents Reviewed |
We have reviewed originals, copies, drafts or conformed copies of the following documents:
1.1 | the Certificate of Incorporation of the Company issued on 6 December 2004 and the Memorandum and Articles of Association of the Company as registered on 6 December 2004; |
1.2 | the Certificate of Incorporation of the Parent Guarantor issued on 12 February 2002 and the Memorandum and Articles of Association of the Parent Guarantor as adopted by special resolution dated 30 March 2009; |
1.3 | the resolutions of the board of directors of the Company adopted by written consent on 21 July 2010; |
1.4 | the minutes of the meetings of the board of directors of the Parent Guarantor held on 21 July 2010 and the written resolutions of the Pricing Committee of the board of directors of the Parent Guarantor (the Pricing Committee) dated 21 July 2010 (the Pricing Committee Resolutions); |
1.5 | the corporate records of the Company and the Parent Guarantor maintained at their registered office in the Cayman Islands; |
1.6 | Certificates of Good Standing issued by the Registrar of Companies (the Certificates of Good Standing) in respect of the Company and the Parent Guarantor; |
1.7 | a certificate from a director of the Company, the form of which is annexed hereto; |
1.8 | a certificate from a director of the Parent Guarantor, the form of which is annexed hereto; |
1.9 | the Original Indenture; |
Annex II-1
1.10 | the Second Supplemental Indenture; |
1.11 | the Underwriting Agreement dated 21 July 2010 by and among the Company; the Parent Guarantor; and Barclays Capital Inc., Suntrust Robinson Humphrey, Inc. and Wells Fargo Securities, LLC as representatives of the underwriters named in Schedule I thereto (the Underwriting Agreement); |
1.12 | the Prospectus dated 24 March 2010, the Prospectus Supplement dated 21 July 2010 (the Prospectus Supplement) relating to the Notes (together, the Prospectus); and |
1.13 | the form of Notes. |
The documents listed in 1.7 to 1.8 above are collectively referred to as the Directors
Certificates and the documents listed in 1.9 to 1.11 above are collectively referred to as the
Transaction Documents.
2 | Assumptions |
The following opinion is given only as to, and based on, circumstances and matters of fact existing
and known to us on the date of this opinion. This opinion only relates to the laws of the Cayman
Islands which are in force on the date of this opinion. In giving this opinion we have relied
(without further verification) upon the completeness and accuracy of the Directors Certificates
and the Certificates of Good Standing. We have also relied upon the following assumptions, which we
have not independently verified:
2.1 | the Transaction Documents and the Notes will be or have been authorised and duly executed and delivered by or on behalf of all relevant parties (other than the Company and the Parent Guarantor as a matter of Cayman Islands law) in accordance with all relevant laws (other than the laws of the Cayman Islands); |
2.2 | the Transaction Documents and the Notes are, or will be, legal, valid, binding and enforceable against all relevant parties in accordance with their terms under laws of the State of New York and all other relevant laws (other than the laws of the Cayman Islands); |
2.3 | the choice of law of the State of New York as the governing law of the Transaction Documents and the Notes has been made in good faith and would be regarded as a valid and binding selection which will be upheld by the courts of the State of New York as a matter of New York law and all other relevant laws (other than the laws of the Cayman Islands); |
2.4 | the Transaction Documents and the Notes will be or have been duly executed and unconditionally delivered by an authorised director or officer of the Company and an Authorised Officer (as that term is defined in the Pricing Committee Resolutions) of the Parent Guarantor, as applicable; |
2.5 | copy documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals; |
Annex II-2
2.6 | all signatures, initials and seals are genuine; |
2.7 | there is nothing under any law (other than the laws of the Cayman Islands) which would or might affect the opinions hereinafter appearing. Specifically, we have made no independent investigation of the laws of the State of New York; |
2.8 | the power, authority and legal right of all parties under all relevant laws and regulations (other than the Company and the Parent Guarantor as a matter of Cayman Islands law) to enter into, execute, unconditionally deliver and perform their respective obligations under the Transaction Documents; and |
2.9 | the Notes will be issued and authenticated in accordance with the provisions of the Indenture. |
3 | Opinions |
Based upon, and subject to, the foregoing assumptions and the qualifications set out below, and
having regard to such legal considerations as we deem relevant, we are of the opinion that:
3.1 | Each of the Company and the Parent Guarantor is an exempted company duly incorporated and validly existing and in good standing under the laws of the Cayman Islands and each of the Company and the Parent Guarantor has the corporate power and authority to own and operate its property and to conduct its business as described in the Prospectus. |
3.2 | The Company and the Parent Guarantor have full power and authority under their respective Memorandum and Articles of Association to enter into, execute and perform their obligations under each of the Transaction Documents to which it is a party; in the case of the Company, to enter into, execute and perform its obligations under the Notes, including the issue of the Notes pursuant to the Indenture; in the case of the Parent Guarantor to enter into, execute and perform its obligations under the Guarantee. |
3.3 | The execution and delivery of the Transaction Documents by the Company and the Parent Guarantor, as applicable, and the issue and offer of the Notes by the Company and the performance of its obligations thereunder, and the issue of the Guarantee by the Parent Guarantor and the performance of its obligations thereunder, do not conflict with or result in a breach of any of the terms or provisions of their respective Memorandum and Articles of Association or any law, public rule or regulation applicable to the Company or the Parent Guarantor in the Cayman Islands currently in force. |
3.4 | The execution, delivery and performance of the Transaction Documents have been authorised by and on behalf of the Company and the Parent Guarantor, as applicable, the Transaction Documents have been duly executed and delivered on behalf of the Company and the Parent Guarantor, as applicable, and constitute the legal, valid and binding obligations of the Company and the Parent Guarantor, as applicable, enforceable in accordance with their terms. |
3.5 | The Notes have been authorised by the Company and when authenticated in the manner set forth in the Indenture and delivered against due payment therefor will be duly |
Annex II-3
executed and delivered and will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms. |
3.6 | The Guarantee has been authorised by the Parent Guarantor and when the Notes have been authenticated in the manner set forth in the Indenture and delivered against due payment therefore will constitute the legal, valid and binding obligations of the Parent Guarantor enforceable in accordance with its terms. |
3.7 | No authorisations, consents, approvals, licences, validations or exemptions are required by law from any governmental authorities or agencies or other official bodies in the Cayman Islands in connection with: |
(a) | the execution or delivery of the Transaction Documents by the Company and the Parent Guarantor, as applicable; | ||
(b) | subject to the payment of stamp duty, the enforcement of the Transaction Documents against the Company or the Parent Guarantor, as applicable; | ||
(c) | the offering, execution, authentication, allotment, issue or delivery of the Notes; | ||
(d) | the execution, issue or delivery of the Guarantee; | ||
(e) | the performance by the Company and the Parent Guarantor, as applicable, of its obligations under the Notes, the Guarantee and the Transaction Documents; | ||
(f) | the payment of the principal and interest and any other amounts under the Notes and the Guarantee. |
3.8 | No taxes, fees or charges (other than stamp duty) are payable (either by direct assessment or withholding) to the government or other taxing authority in the Cayman Islands under the laws of the Cayman Islands in respect of: |
(a) | the execution or delivery of the Transaction Documents; the Notes or the Guarantee; | ||
(b) | the enforcement of the Transaction Documents; the Notes or the Guarantee; | ||
(c) | payments made under, or pursuant to, the Transaction Documents; or | ||
(d) | the issue, transfer or redemption of the Notes. |
The Cayman Islands currently have no form of income, corporate or capital gains tax and no estate duty, inheritance tax or gift tax. |
3.9 | The courts of the Cayman Islands will observe and give effect to the choice of the laws of the State of New York as the governing law of the Transaction Documents and the Notes. |
3.10 | Based solely on our search of the Register of Writs and Other Originating Process and the Register of Appeals (together, the Court Registers) maintained by the Clerk of the |
Annex II-4
Court of the Grand Court of the Cayman Islands and by the Registrar of the Court of Appeal of the Cayman Islands respectively from the date of incorporation of the Company and the Parent Guarantor, as applicable to [ ] July 2010 (the Litigation Search), the Court Registers disclosed no writ, originating summons, originating motion, petition, counterclaim nor third party notice (Originating Process) nor any amended Originating Process pending before the Grand Court of the Cayman Islands nor any appeal pending before the Court of Appeal, in which the Company or the Parent Guarantor is a defendant or respondent. |
3.11 | Although there is no statutory enforcement in the Cayman Islands of judgments obtained in the State of New York, a judgment obtained in such jurisdiction will be recognised and enforced in the courts of the Cayman Islands at common law, without any re-examination of the merits of the underlying dispute, by an action commenced on the foreign judgment debt in the Grand Court of the Cayman Islands, provided such judgment: |
(a) | is given by a foreign court of competent jurisdiction; | ||
(b) | imposes on the judgment debtor a liability to pay a liquidated sum for which the judgment has been given; | ||
(c) | is final; | ||
(d) | is not in respect of taxes, a fine or a penalty; and | ||
(e) | was not obtained in a manner and is not of a kind the enforcement of which is contrary to natural justice or the public policy of the Cayman Islands. |
3.12 | It is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of the Transaction Documents; the Notes or the Guarantee that any document be filed, recorded or enrolled with any governmental authority or agency or any official body in the Cayman Islands. |
3.13 | Based solely on our review of the Register of Members of the Parent Guarantor, the issued shares in the capital of the Parent Guarantor (the Parent Guarantor Issued Shares) are 261,245,693 shares of US$0.10 each and Noble Corporation (a Swiss corporation) is the registered holder of all the Parent Guarantor Issued Shares. The Parent Guarantor Issued Shares have been duly authorised and validly issued and, assuming that payment for such Parent Guarantor Issued Shares has been received in full in accordance with the terms of issue, are fully paid. |
3.14 | Based solely on our review of the Register of Members of the Company, the issued shares in the capital of the Company (the Company Issued Shares) are 10,006 shares of US$1.00 each and Noble Holding International SCA is the registered holder of all the Company Issued Shares. The Company Issued Shares have been duly authorised and validly issued and, assuming that payment for such Company Issued Shares has been received in full in accordance with the terms of issue, are fully paid. |
Annex II-5
3.15 | All statements made in the Prospectus with regard to statutes, regulations, rules, treaties and other laws of the Cayman Islands are accurate. |
4 | Qualifications |
The opinions expressed above are subject to the following qualifications:
4.1 | The term enforceable as used above means that the obligations assumed by the Company and the Parent Guarantor, as applicable, under the Transaction Documents; the Notes and the Guarantee are of a type which the courts of the Cayman Islands will enforce. It does not mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular: |
(a) | enforcement may be limited by bankruptcy, insolvency, liquidation, reorganisation, readjustment of debts or moratorium or other laws of general application relating to or affecting the rights of creditors; |
(b) | enforcement may be limited by general principles of equity. For example, equitable remedies such as specific performance may not be available, inter alia, where damages are considered to be an adequate remedy; |
(c) | some claims may become barred under the statutes of limitation or may be or become subject to defenses of set off, counterclaim, estoppel and similar defenses; |
(d) | where obligations are to be performed in a jurisdiction outside the Cayman Islands, they may not be enforceable in the Cayman Islands to the extent that performance would be illegal under the laws of that jurisdiction; |
(e) | the Cayman Islands court has jurisdiction to give judgment in the currency of the relevant obligation and statutory rates of interest payable upon judgments will vary according to the currency of the judgment. If the Company or the Parent Guarantor becomes insolvent and is made subject to a liquidation proceeding, the Cayman Islands court will require all debts to be proved in a common currency, which is likely to be the functional currency of the Company or the Parent Guarantor determined in accordance with applicable accounting principles. Currency indemnity provisions have not been tested, so far as we are aware, in the courts of the Cayman Islands; |
(f) | obligations to make payments that may be regarded as penalties will not be enforceable; |
(g) | the courts of the Cayman Islands may decline to exercise jurisdiction in relation to substantive proceedings brought under or in relation to the Transaction Documents or the Notes in matters where they determine that such proceedings may be tried in a more appropriate forum; and |
(h) | a company cannot, by agreement or in its articles of association, restrict the exercise of a statutory power, and there exists doubt as to enforceability of any |
Annex II-6
provision in the Transaction Documents whereby the Company or the Parent Guarantor covenants not to exercise powers specifically given to its shareholders by the Companies Law (2009 Revision) of the Cayman Islands, including, without limitation, the power to increase its authorised share capital, amend its memorandum and articles of association, or present a petition to a Cayman Islands court for an order to wind up the Company or the Parent Guarantor. |
4.2 | Cayman Islands stamp duty may be payable if the original Transaction Documents or the original Notes (if not registered Notes) are brought to or executed in the Cayman Islands. |
4.3 | To maintain a Cayman Islands company in good standing under the laws of the Cayman Islands, annual filing fees must be paid and returns made to the Registrar of Companies. |
4.4 | The obligations of the Company and the Parent Guarantor may be subject to restrictions pursuant to United Nations sanctions as implemented under the laws of the Cayman Islands. |
4.5 | A certificate, determination, calculation or designation of any party to the Transaction Documents or the Notes as to any matter provided therein might be held by a Cayman Islands court not to be conclusive final and binding if, for example, it could be shown to have an unreasonable or arbitrary basis, or in the event of manifest error. |
4.6 | The Litigation Search of the Court Registers would not reveal, amongst other things, an Originating Process filed with the Grand Court which, pursuant to the Grand Court Rules or best practice of the Clerk of the Courts office, should have been entered in the Court Registers but was not in fact entered in the Court Registers (properly or at all), nor any appeal filed with the Court of Appeal prior to 1 June 2009. |
4.7 | In principle a Cayman Islands court will award costs and disbursements in litigation in accordance with the relevant contractual provisions but there remains some uncertainty as to the way in which the rules of the Grand Court will be applied in practice. Whilst it is clear that costs incurred prior to judgment can be recovered in accordance with the contract, it is likely that post-judgment costs (to the extent recoverable at all) will be subject to taxation in accordance with Grand Court Rules Order 62. |
4.8 | Preferred creditors under Cayman Islands law will rank ahead of unsecured creditors of the Company and the Parent Guarantor. Furthermore, all costs, charges and expenses properly incurred in the voluntary winding up of a company, including the remuneration of the liquidators, are payable out of the assets of the company in priority to all other unsecured claims. |
4.9 | We reserve our opinion as to the extent to which a Cayman Islands court would, in the event of any relevant illegality, sever the offending provisions and enforce the remainder of the transaction of which such provisions form a part, notwithstanding any express provisions in this regard. |
4.10 | We note that it is contemplated that certain of the Transaction Documents will be dated as of a certain date. Whilst parties to an agreement may agree as a matter of contract, |
Annex II-7
inter se, that the rights and obligations therein contained should, in so far as the same may be possible, take effect from a date prior to the date of execution and delivery, if as a matter of fact that agreement was executed and delivered after the date as of which it is expressed to be executed and delivered, the agreement only comes into effect on the actual date of execution and delivery and, with respect to third parties, the agreement in so far as the rights of third parties may be available thereunder, take effect only from the actual date of execution and delivery. |
4.11 | Under the Companies Law (2009 Revision) of the Cayman Islands, the register of members of a Cayman Islands company is by statute regarded as prima facie evidence of any matters which the Companies Law (2009 Revision) directs or authorises to be inserted therein. A third party interest in the shares in question would not appear. An entry in the register of members may yield to a court order for rectification (for example, in the event of fraud or manifest error). |
4.12 | We make no comment with regard to the references to foreign statutes in the Transaction Documents or the Notes. |
We express no view as to the commercial terms of the Transaction Documents or the Notes or whether
such terms represent the intentions of the parties and make no comment with respect to any
representations which may be made by the Company or the Parent Guarantor.
This opinion may be relied upon by the addressees only, except as set forth below. We are aware
that Baker Botts L.L.P. will rely as to matters of Cayman Islands law on this opinion in rendering
its opinion to the Trustee and we authorise them to so rely. This opinion may not be relied upon
by any other person except with our prior written consent.
Yours faithfully
Maples and Calder
Annex II-8
SCHEDULE
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
745 Seventh Avenue
New York, New York 10019
Suntrust Robinson Humphrey, Inc.
3333 Peachtree Road
11th Floor
Atlanta, GA 30326
3333 Peachtree Road
11th Floor
Atlanta, GA 30326
Wells Fargo Securities, LLC
301 S. College Street
Charlotte,NC 28228
301 S. College Street
Charlotte,NC 28228
As representatives of the several Underwriters
named in Schedule I to the Underwriting Agreement.
named in Schedule I to the Underwriting Agreement.
Annex II-9
Noble Corporation
PO Box 309, Ugland House, KY1-1104
Grand Cayman, Cayman Islands
PO Box 309, Ugland House, KY1-1104
Grand Cayman, Cayman Islands
July 2010
To: Maples and Calder
PO Box 309
Ugland House
KY1-1104
Grand Cayman
Cayman Islands
PO Box 309
Ugland House
KY1-1104
Grand Cayman
Cayman Islands
Dear Sirs
Noble Corporation (Cayman Islands) (the Guarantor)
I, Alan Hay, being a director of the Guarantor, am aware that you are being asked to provide a
legal opinion (the Opinion) in relation to certain aspects of Cayman Islands law. Capitalised
terms used in this certificate have the meaning given to them in the Opinion. I hereby certify
that:
1 | The Memorandum and Articles of Association of the Guarantor as adopted by special resolution dated 30 March 2009 remain in full force and effect and are unamended. |
2 | The Guarantor has not entered into any mortgages or charges over its property or assets other than those entered in the register of mortgages and charges. |
3 | The minutes of meeting of the board of directors of the Guarantor held on 21 July 2010 (a final draft of the minutes of the meeting are attached) (the Meeting) are a true and correct record of the Meeting, which was duly convened and held, and at which a quorum was present throughout and at which each director disclosed his interest (if any), in the manner prescribed in the Articles of Association of the Guarantor. |
4 | The Pricing Committee has been duly established, and the Pricing Committee Resolutions have been validly passed, including in accordance with the resolutions passed at the Meeting and the Articles of Association of the Guarantor. |
5 | The members of the Guarantor have not restricted or limited the powers of the directors in any way. There is no contractual or other prohibition (other than as arising under Cayman Islands law) binding on the Guarantor prohibiting it from entering into and performing its obligations under the Second Supplemental Indenture. |
Annex II-10
6 | The resolutions set forth in the minutes of the Meeting and the Pricing Committee Resolutions, were duly adopted, are in full force and effect at the date hereof and have not been amended, varied or revoked in any respect. |
7 | The directors of the Guarantor at the date of the Meeting and the Pricing Committee Resolutions and at the date hereof were and are as follows: |
Andrew J. Strong
David W. Williams
Dennis J. Lubojacky
Alan P. Duncan
Alan R. Hay.
David W. Williams
Dennis J. Lubojacky
Alan P. Duncan
Alan R. Hay.
8 | The Minute Book and corporate records of the Guarantor as maintained at its registered office in the Cayman Islands and made available to you are complete and accurate in all material respects, and all minutes and resolutions filed therein represent a complete and accurate record of all meetings of the members and directors (or any committee thereof) (duly convened in accordance with the Articles of Association) and all resolutions passed at the meetings, or passed by written consent as the case may be. |
9 | The authorised share capital of the Guarantor is US$55,000,000 divided into 400,000,000 Ordinary Shares of a par value of US$0.10 each and 15,000,000 Preferred Shares of a par value of US$1.00 each. |
I confirm that you may continue to rely on this Certificate as being true and correct on the day
that you issue the Opinion unless I shall have previously notified you personally to the contrary.
[signature page follows]
Annex II-11
IN WITNESS WHEREOF, the undersigned has executed this Directors
Certificate as of the date first written above.
Alan R. Hay | ||||
Director | ||||
Annex II-12
Noble Holding International Limited
PO Box 309, Ugland House, KY1-1104
Grand Cayman, Cayman Islands
PO Box 309, Ugland House, KY1-1104
Grand Cayman, Cayman Islands
July 2010
To: Maples and Calder
PO Box 309
Ugland House
KY1-1104
Grand Cayman
Cayman Islands
PO Box 309
Ugland House
KY1-1104
Grand Cayman
Cayman Islands
Dear Sirs
Noble Holding International Limited (the Company)
I, Alan R. Hay, being a director of the Company, am aware that you are being asked to provide a
legal opinion (the Opinion) in relation to certain aspects of Cayman Islands law. Capitalised
terms used in this certificate have the meaning given to them in the Opinion. I hereby certify
that:
1 | The Memorandum and Articles of Association of the Company as registered on 6 December 2004 remain in full force and effect and are unamended. |
2 | The Company has not entered into any mortgages or charges over its property or assets other than those entered in the register of mortgages and charges. |
3 | The resolutions of the Board of Directors of the Company adopted by written consent on 21 July 2010 were signed by all the directors in the manner prescribed in the Articles of Association of the Company. |
4 | The resolutions dated 21 July 2010 of the Pricing Committee of the board of directors of the Parent Guarantor (a copy of which is attached) have been validly passed and the Pricing Committee has been duly appointed, on behalf of the Company, to determine any and all terms and conditions of the Debt Securities and the Debt Offerings (as those terms are defined the resolutions referred to in section 3 above) in accordance with the resolutions referred to in section 3 above and the Articles of Association of the Company. |
5 | The members of the Company have not restricted or limited the powers of the directors in any way. There is no contractual or other prohibition (other than as arising under Cayman Islands law) binding on the Company prohibiting it from entering into and performing its obligations under the Original Indenture, the Second Supplemental Indenture or the Notes. |
6 | The resolutions referred to in sections 3 and 4 above were duly adopted, are in full force and effect at the date hereof and have not been amended, varied or revoked in any respect. |
Annex II-13
7 | The directors of the Company at the date of each of the resolutions referred to in sections 3 and 4 above and at the date hereof were and are as follows: |
Alan R. Hay
Andrew J. Strong
Alan P. Duncan.
Andrew J. Strong
Alan P. Duncan.
8 | The Minute Book and corporate records of the Company as maintained at its registered office in the Cayman Islands and made available to you are complete and accurate in all material respects, and all minutes and resolutions filed therein represent a complete and accurate record of all meetings of the members and directors (or any committee thereof) (duly convened in accordance with the Articles of Association) and all resolutions passed at the meetings, or passed by written consent as the case may be. |
9 | The issued share capital of the Company is 10,006 shares of US$1.00 each, which are held by Noble Holding International SCA and are fully paid up. |
I confirm that you may continue to rely on this Certificate as being true and correct on the day
that you issue the Opinion unless I shall have previously notified you personally to the contrary.
[signature page follows]
Annex II-14
IN WITNESS WHEREOF, the undersigned has executed this Directors
Certificate as of the date first written above.
Alan R. Hay | ||||
Director | ||||
Annex II-15
ANNEX III
FORM OF OPINION OF GENERAL COUNSEL
1. Each of Noble Holding (U.S.) Corporation and Noble Drilling Corporation has been duly
incorporated and is validly existing as a corporation in good standing under the laws of the State
of Delaware; and all of the issued shares of capital stock of each such corporation have been duly
and validly authorized and issued, are fully paid and non-assessable, and are owned directly or
indirectly by the Parent Guarantor, free from liens, encumbrances or claims (i) in respect of which
a financing statement under the Uniform Commercial Code of the State of Delaware naming the Parent
Guarantor or such corporations as debtor is on file as of a recent date in the office of the
Secretary of State of the State of Delaware or (ii) otherwise known to such counsel, without
independent investigation.
2. Each of Noble Drilling Holding LLC and Noble Drilling (U.S.) LLC has been duly organized
and is an existing limited liability company in good standing under the laws of the State of
Delaware; and all of its issued and outstanding membership interests of each such company have been
duly authorized and validly issued in accordance with its limited liability company agreement and
the Delaware Limited Liability Company Act (the Delaware LLC Act) and are fully paid (to the
extent required under such limited liability company agreement) and nonassessable (except as such
nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act), and such
membership interests are owned directly or indirectly by the Parent Guarantor free from liens,
encumbrances or claims (i) in respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming the Parent Guarantor or such other companies as debtor is on
file as of a recent date in the office of the Secretary of State of the State of Delaware or (ii)
otherwise known to such counsel, without independent investigation, in each case other than liens,
encumbrances and claims created by or arising under the Delaware LLC Act or the governing documents
of Noble Drilling Holding LLC or Noble Drilling (U.S.) LLC.
3. To such counsels knowledge, there are no legal or governmental proceedings pending to
which the Parent Guarantor or any of its subsidiaries is a party or of which any property of the
Parent Guarantor or any of its subsidiaries is the subject that are of a character required to be
described in the Registration Statement or the Pricing Disclosure Package that are not described as
required.
Annex III-1