Attached files
file | filename |
---|---|
8-K - FORM 8-K - PRIDE INTERNATIONAL INC | h75076e8vk.htm |
EX-4.2 - EX-4.2 - PRIDE INTERNATIONAL INC | h75076exv4w2.htm |
EX-5.1 - EX-5.1 - PRIDE INTERNATIONAL INC | h75076exv5w1.htm |
Exhibit 1.1
Execution Copy
Pride International, Inc.
$900,000,000 6 7/8% Senior Notes due 2020
and
$300,000,000 7 7/8% Senior Notes due 2040
UNDERWRITING AGREEMENT
August 3, 2010
Goldman, Sachs & Co.
Citigroup Global Markets Inc.
Wells Fargo Securities, LLC
Natixis Bleichroeder LLC
Banc of America Securities LLC
As representatives (the Representatives) of the
several Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Citigroup Global Markets Inc.
Wells Fargo Securities, LLC
Natixis Bleichroeder LLC
Banc of America Securities LLC
As representatives (the Representatives) of the
several Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Pride International, Inc., a Delaware corporation (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) an aggregate of $900,000,000 principal amount of the 6 7/8%
Senior Notes due 2020 (the 2020 Notes) and $300,000,000 principal amount of the 7 7/8% Senior
Notes due 2040 (the 2040 Notes and, together with the 2020 Notes, the Securities).
1. The Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) An automatic shelf registration statement as defined under Rule 405
under the Securities Act of 1933 (the Act) on Form S-3 (File No. 333-154920) in respect of
the Securities has been filed with the Securities and Exchange Commission (the Commission)
not earlier than three years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; 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)(2) under the Act has been received
by the Company (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 under the Act 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 (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 Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and 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
be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein;
(c) For the purposes of this Agreement, the Applicable Time is 7:00 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
2
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 the
Pricing Disclosure Package or an Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the 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 and the Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the 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 Company by an Underwriter through the Representatives expressly for use therein; 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;
(e) The Registration Statement conforms, and any further amendments or supplements 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 or supplement thereto, contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein.
(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
3
and at the Time of Delivery, 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 Company by an
Underwriter through the Representatives expressly for use therein;
(g) Neither the Company 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
Pricing Prospectus, there has not been any change in the capital stock (other than pursuant
to any stock-based incentive plan of the Company) or any increase in long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the condition (financial or
otherwise), earnings, business, properties, stockholders equity or results of operations of
the Company and its subsidiaries considered as one enterprise whether or not arising from
transactions in the ordinary course of business, otherwise than as set forth or contemplated
in the Pricing Prospectus;
(h) The Company 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
Pricing Prospectus or such as do not affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company and its
subsidiaries or where the failure to have such title or to be free and clear of such liens,
encumbrances and defects would not have a material adverse effect on the condition
(financial or otherwise), earnings, business, properties, stockholders equity or results of
operations of the Company and its subsidiaries considered as one enterprise whether or not
arising from transactions in the ordinary course of business (a Material Adverse Effect);
and any real property and buildings held under lease by the Company 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 Company and its subsidiaries or except as would not have a
Material Adverse Effect;
(i) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Pricing Prospectus, and has
been 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, except where the failure to be so
qualified would not have a Material Adverse Effect; and each subsidiary of the Company set
forth on Schedule III hereto (collectively, the Material Subsidiaries) has been
duly incorporated or formed, as the
4
case may be, and is validly existing and in good standing (if applicable) under the laws of
its jurisdiction of incorporation or formation; and other than the Material Subsidiaries, no
subsidiary of the Company is a significant subsidiary of the Company as defined by Rule
1-02 of Regulation S-X;
(j) The Company has an authorized capitalization as set forth in the Pricing Prospectus
and all of the issued shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid 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 (subject to such minimum minority ownership interests
in the non-U.S. subsidiaries as may be required under applicable law) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(k) The Securities have been duly authorized and, when issued and delivered pursuant to
this Agreement and authenticated by the Trustee (as defined below), 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
July 1, 2004 (the Original Indenture), between the Company and The Bank of New York
Mellon, as trustee (the Trustee), as amended and supplemented by the Third Supplemental
Indenture thereto to be dated as of August 6, 2010 (the Original Indenture, as so amended
and supplemented, the Indenture), pursuant to which the Securities are to be issued; the
Indenture has been duly authorized by the Company and duly qualified under the Trust
Indenture Act, and, at the Time of Delivery, the Indenture will constitute a valid and
legally binding instrument of the Company, enforceable against the Company 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 and the Indenture will conform in all material
respects to the descriptions thereof contained in the Pricing Disclosure Package and the
Prospectus;
(l) The issue and sale of the Securities and the compliance by the Company with all of
the provisions of the Securities, the Indenture and this Agreement and the consummation by
the Company 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 Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) result in any violation of the
provisions of the certificate of incorporation or bylaws of 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 Company or any of its subsidiaries or any of
their properties, except with respect to clauses (i) and (iii) above, for such conflicts,
breaches, or violations or defaults as would not, individually or in the aggregate, 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 or the consummation by the
5
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;
(m) Neither the Company nor any of its subsidiaries is in violation of its
organizational documents or 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 for such violations or defaults which would not,
individually or in the aggregate, have a Material Adverse Effect;
(n) The statements set forth in the Pricing Prospectus and the Basic Prospectus under
the caption Description of the Notes and Description of Debt Securities, insofar as they
purport to constitute a summary of the terms of the Securities and under the caption
Underwriting, Plan of Distribution, and Certain United States Federal Tax
Considerations for Non-U.S. Holders, 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;
(o) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the best knowledge of the Company, no such
proceedings are threatened or contemplated by governmental authorities or threatened by
others;
(p) The Company is not and, 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 not be an investment company, as such term is defined in the Investment
Company Act of 1940, as amended (the Investment Company Act);
(q) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the
exemption of Rule 163 under the Act, the Company was a well-known seasoned issuer as
defined in Rule 405 under the Act; and (B) at the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company
was not an ineligible issuer as defined in Rule 405 under the Act;
6
(r) KPMG LLP, who have certified certain financial statements of the Company and its
subsidiaries, and have audited the Companys internal control over financial reporting, are
independent public accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(s) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Companys 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 Companys internal control over financial reporting is effective and the
Company is not aware of any material weaknesses in its internal control over financial
reporting;
(t) Since the date of the latest audited financial statements included or incorporated
by reference in the Pricing Prospectus, there has been no change in the Companys internal
control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Companys internal control over financial reporting;
(u) The consolidated financial statements, together with related schedules and notes,
in the Companys annual report on Form 10-K for the year ended December 31, 2009, quarterly
reports on Form 10-Q for the quarterly periods ended March 31, 2010 and June 30, 2010, and
any other reports filed by the Company with the Commission under the Exchange Act subsequent
to the filing of the most recent such quarterly report, included, incorporated by reference
or deemed to be incorporated by reference in the Pricing Prospectus, present fairly in all
material respects the consolidated financial position, results of operations and cash flows
of the Company and its subsidiaries on the basis stated in the Pricing Prospectus at the
respective dates or for the respective periods to which they apply; and the other financial
and statistical information and data in the Companys annual report on Form 10-K for the
year ended December 31, 2009, quarterly reports on Form 10-Q for the quarterly periods ended
March 31, 2010 and June 30, 2010 and any other reports filed by the Company with the
Commission under the Exchange Act subsequent to the filing of the most recent such quarterly
report, included, incorporated by reference or deemed to be incorporated by reference in the
Pricing Prospectus are in all material respects accurately presented and prepared on a basis
consistent with the audited financial statements and the books and records of the Company
and its subsidiaries.
(v) Except as would not, individually or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof including any judicial
or administrative order, consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
7
without limitation, laws and regulations relating (i) to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, Hazardous Materials) or (ii) to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (all of which are referred to, collectively, as
Environmental Laws), (B) the Company and each of its 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, threatened administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its subsidiaries and (D) to
the knowledge of the Company, 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
Company or any of its subsidiaries relating to Hazardous Materials or any Environmental
Laws; and
(w) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the
Exchange Act is accumulated and communicated to the Companys management and such disclosure
controls and procedures were effective as of June 30, 2010; and to the knowledge of the
Company, there have been no changes since June 30, 2010 that would cause such disclosure
controls and procedures to not be effective in all material respects.
(x) The Company and its subsidiaries have filed all material non-U.S., U.S. federal,
state and local tax returns required to be filed, and other than those filings being
contested in good faith, neither the Company nor any of its subsidiaries is in default in
the payment of any taxes which were payable pursuant to said returns or any assessments with
respect thereto.
(y) The Company and its subsidiaries own or possess the right to use all material
patents, trademarks, trademark registrations, service marks, service mark registrations,
trade names, copyrights, licenses, inventions, trade secrets and rights described in the
Pricing Prospectus as being owned by them or any of them or necessary for the conduct of
their respective businesses, and the Company is not aware of any claim to the contrary or
any challenge by any other person to the rights of the Company and its subsidiaries with
respect to the foregoing.
(z) Except as disclosed in the Pricing Disclosure Package and the Prospectus, (A) none
of the Company, any of its subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of
or has taken any action, directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the FCPA), including, without limitation,
8
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, and (B) the Company, its subsidiaries and, to the knowledge of
the Company, its affiliates have conducted their businesses in compliance with the FCPA and
have instituted and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
(aa) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently the subject of 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 the subject of
any U.S. sanctions administered by OFAC.
(bb) There are no contracts or documents which are required to be described in the
Registration Statement, the Pricing Prospectus or the documents incorporated by reference
therein or to be filed as exhibits to the Registration Statement which have not been so
described and filed as required under the Securities Act.
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, (i) at a purchase price of 99.265% of the principal amount thereof, plus
accrued interest, if any, from August 6, 2010 to the Time of Delivery (as defined below), the
principal amount of 2020 Notes set forth opposite the name of such Underwriter in Schedule
I hereto and (ii) at a purchase price of 99.142% of the principal amount thereof, plus accrued
interest, if any, from August 6, 2010 to the Time of Delivery, the principal amount of 2040 Notes
set forth opposite the name of such Underwriter in Schedule I hereto.
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.
4. (a) Each of the 2020 Notes and the 2040 Notes to be purchased by each Underwriter hereunder
will be represented by one or more 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 Securities to Goldman, Sachs & Co., 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 Goldman, Sachs & Co. at least 48 hours in advance, by causing DTC to credit the Securities to
the account of Goldman, Sachs & Co. at DTC. The Company will cause the certificates representing
the respective Securities to be made available to Goldman, Sachs & Co. for checking at least 24
hours prior to the Time of Delivery (as defined
9
below) at the office of DTC or its designated custodian (the Designated Office). The time and
date of such delivery and payment shall be 10:00 a.m., New York City time, on August 6, 2010 or
such other time and date as Goldman, Sachs & Co. 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(i) hereof,
will be delivered at the offices of Vinson & Elkins LLP, First City Tower, 1001 Fannin
Street, Suite 2500, Houston, Texas 77002-6760 (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 4:00 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 agrees with each of the Underwriters:
(a) 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; 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; 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; to prepare a final term sheet, containing solely a description of the Securities,
in a form approved by you and to file such term sheet pursuant to Rule 433(d) under the Act
within the time required by such Rule; to file promptly all other material required to be
filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file
promptly all reports and any definitive proxy or information statements required to be filed
by the Company 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; to advise you, promptly
after it receives notice thereof, of the issuance by the Commission 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)(2)
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 of any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information; and, in the event of
the issuance of any stop
10
order or of any order preventing or suspending the use of any Preliminary Prospectus or
other prospectus in respect of the Securities or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order; and 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) If by the third anniversary (the Renewal Deadline) of the initial effective date
of the Registration Statement, any of the Securities remain unsold by the Underwriters, the
Company will file, if it has not already done so and is eligible to do so, a new automatic
shelf registration statement relating to the Securities, in a form satisfactory to you. If
at the Renewal Deadline the Company is no longer eligible to file an automatic shelf
registration statement, the Company will, if it has not already done so, file a new shelf
registration statement relating to the Securities, in a form satisfactory to you and will
use its commercially reasonable efforts to cause such registration statement to be declared
effective within 180 days after the Renewal Deadline. The Company will use its commercially
reasonable efforts to take all other action necessary or appropriate to permit the public
offering and sale of the Securities to continue as contemplated in the expired registration
statement relating to the Securities. References herein to the Registration Statement shall
include such new automatic shelf registration statement or such new shelf registration
statement, as the case may be;
(d) Promptly from time to time to take such action as you may reasonably request to
qualify the Securities 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;
(e) 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 written and electronic copies of the Prospectus in New York City 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 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
11
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;
(f) 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 Company 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 Company,
Rule 158);
(g) During the period beginning from the date hereof and continuing to and including
the Time of Delivery, not to offer, sell, contract to sell, or otherwise dispose of any debt
securities of the Company that are substantially similar to the Securities, without the
prior written consent of the Representatives;
(h) To pay the required Commission filing fees relating to the Securities within the
time required by Rule 456(b)(1) under the Act without regard to the proviso therein and
otherwise in accordance with Rules 456(b) and 457(r) under the Act; 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) The Company represents and agrees that, other than the final term sheet prepared and
filed pursuant to Section 5(a) hereof, without the prior consent of the Representatives, it has not
made and will not make any offer relating to the Securities that would constitute a free writing
prospectus as defined in Rule 405 under the Act;
(b) each Underwriter represents and agrees that, without the prior consent of the
Company and the Representatives, other than one or more term sheets relating to the
Securities containing customary information and conveyed to purchasers of Securities, it has
not made and will not make any offer relating to the Securities that would constitute
12
an issuer free writing prospectus or a free writing prospectus required to be field with the
Commission; and
(c) any such free writing prospectus the use of which has been consented to by the
Company and the Representatives (including the final term sheet prepared and filed pursuant
to Section 5(a) hereof) is listed on Schedule II(a) hereto;
(d) The Company has 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
(e) The Company agrees that, if at any time following issuance of an Issuer Free
Writing Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration Statement, the
Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to the Representatives and, if requested by the Representatives, will prepare
and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other
document that will correct such conflict, statement or omission; provided, however, that
this representation and warranty 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 the Representatives expressly for use
therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Companys counsel
and accountants in connection with the registration of the Securities 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 and
the Prospectus and amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing this Agreement, the
Indenture, any 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;
(iii) any expenses in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(d) hereof, including the reasonable 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; (vi) the cost of preparing the Securities; (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 and the Securities; and (viii) all other
costs and expenses incident to the performance of its obligations hereunder that are not otherwise
specifically provided for in this Section. 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
13
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 herein are,
at and as of the Time of Delivery, true and correct, the condition that the Company 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 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 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)(2) 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) Vinson & Elkins 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, 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-A hereto; and Brady K. Long, Vice
President, General Counsel and Secretary for the Company, 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 II-B hereto:
(d) On the date of the Prospectus at a time prior to the execution of this Agreement,
at 9:30 a.m. New York City time, on the effective date of any post effective amendment to
the Registration Statement filed subsequent to the date of this Agreement and also at the
Time of Delivery, KPMG LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to you, to the
effect set forth in Annex I hereto (the executed copy of the letter delivered prior
to the execution of this Agreement is attached as Annex I(a) hereto and a form of
letter to be delivered on the effective date of any post-effective amendment to the
Registration Statement, and as of the Time of Delivery is attached as Annex I(b)
hereto);
14
(e) (i) Neither the Company 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 (other than pursuant to any stock-based incentive plan of the
Company) or any increase in long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the condition (financial or
otherwise), earnings, business, properties, stockholders equity or results of operations of the
Company and its subsidiaries considered as one enterprise whether or not arising from transactions
in the ordinary course of business, 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;
(f) On or after the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the debt securities of the Company 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;
(g) 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 the Companys
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 the judgment of the Representatives 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; and
(h) The Company shall have furnished or caused to be furnished to you at the Time of
Delivery certificates of officers of the Company, satisfactory to you as to the accuracy of
the representations and warranties of the Company herein at and as of such Time of Delivery,
as to the performance by the Company of all of its obligations hereunder to be performed at
or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as you may reasonably request.
15
9. (a) The Company 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 the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, the 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 by any Underwriter through the Representatives
expressly for use therein.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company 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 amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon
and in conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company 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 or to the extent it is not prejudiced
as a proximate result of such failure. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party
16
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 reasonably 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, 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 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, 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 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
17
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 discounts and commissions
received by such Underwriter with respect to the offering of the Securities 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 under this Section 9 shall be in addition to any
liability that the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the meaning of the
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 to each person, if any, who controls the
Company 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 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 agrees 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
18
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 or the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements
in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities.
12. If this Agreement shall be terminated pursuant to Sections 10 or 8(g)(i), (iii), (iv) or
(v) hereof, the Company shall not 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 are not delivered by or on
behalf of the Company as provided herein, 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 the Company shall then be under no 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 Goldman, Sachs & Co. 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 Goldman, Sachs & Co., 85 Broad Street, 20th Floor, New York, New York
10004, Attention: Registration Department; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in the Registration
Statement, Attention: General Counsel; provided, however, that any notice to an
19
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 by you upon
request. Any such statements, requests, notices or agreements shall take effect upon receipt
thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the Underwriters to properly identify their respective clients.
15. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and
directors of the Company and each person who controls the Company 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 Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arms-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the
process leading to such transaction each Underwriter is acting solely as a principal and not the
agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
18. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
19. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
20
20. The Company 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.
21. 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.
22. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state 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 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.
[Remainder of page left intentionally blank]
21
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 between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is 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, Pride International, Inc. |
||||
By: | /s/ Steven D. Oldham | |||
Name: | Steven D. Oldham | |||
Title: | Vice President and Treasurer | |||
Signature Page to Underwriting Agreement
Accepted as of the date hereof on behalf of each of the Underwriters:
Goldman, Sachs & Co.
By:
|
/s/ Goldman Sachs & Co.
|
|||
Citigroup Global Markets Inc. |
By:
|
/s/ Brian Bednarski
|
|||
Title: Managing Director | ||||
Wells Fargo Securities, LLC | ||||
By:
|
/s/ Carolyn Hurley
|
|||
Title: Director | ||||
Natixis Bleichroeder LLC | ||||
By:
|
/s/ Bill Casciani
|
|||
Title: COO | ||||
Banc of America Securities LLC | ||||
By:
|
/s/ Lee E. McKinstrey
|
|||
Title: Managing Director |
Signature Page to Underwriting Agreement
SCHEDULE I
Principal Amount of | Principal Amount of | |||||||
2020 Notes to be | 2040 Notes to be | |||||||
Underwriter | Purchased | Purchased | ||||||
Goldman, Sachs & Co. |
$ | 128,574,000 | $ | 42,858,000 | ||||
Citigroup Global Markets Inc. |
128,574,000 | 42,858,000 | ||||||
Wells Fargo Securities, LLC |
128,574,000 | 42,858,000 | ||||||
Natixis Bleichroeder Inc. |
128,574,000 | 42,858,000 | ||||||
Banc of America Securities LLC |
64,287,000 | 21,429,000 | ||||||
ING Financial Markets LLC |
45,918,000 | 15,306,000 | ||||||
Scotia Capital (USA) Inc. |
45,918,000 | 15,306,000 | ||||||
J. P. Morgan Securities Inc. |
45,918,000 | 15,306,000 | ||||||
BBVA Securities Inc. |
45,918,000 | 15,306,000 | ||||||
UBS Securities LLC |
36,738,000 | 12,246,000 | ||||||
HSBC Securities (USA) Inc. |
27,549,000 | 9,183,000 | ||||||
Standard Chartered |
27,549,000 | 9,183,000 | ||||||
BNP Paribas Securities Corp. |
27,549,000 | 9,183,000 | ||||||
Howard Weil Incorporated |
9,180,000 | 3,060,000 | ||||||
Tudor, Pickering, Holt & Co. Securities, Inc. |
9,180,000 | 3,060,000 | ||||||
Total |
$ | 900,000,000 | $ | 300,000,000 |
Schedule I
SCHEDULE II
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
1. | Electronic roadshow, available on www.netroadshow.com, on August 3, 2010 | ||
2. | Free Writing Prospectus dated August 3, 2010 and filed with the Securities and Exchange Commission pursuant to Rule 433 under the Securities Act |
(b) Additional Documents Incorporated by Reference:
1. | Current Report on Form 8-K dated August 3, 2010 and filed with the Securities and Exchange Commission on August 3, 2010 |
Schedule II
SCHEDULE III
MATERIAL SUBSIDIARIES
MATERIAL SUBSIDIARIES
Company Name |
Jurisdiction | |
Andre Maritime Ltd.
|
Bahamas | |
Dupont Maritime Ltd.
|
Liberia | |
Durand Maritime SAS
|
France | |
Forasub B.V.
|
Netherlands | |
Forinter Limited
|
Channel Islands | |
Global Offshore Drilling Ltd.
|
British Virgin Islands | |
Martin Maritime Ltd.
|
Bahamas | |
Petrodrill Five Limited
|
British Virgin Islands | |
Petrodrill Four Limited
|
British Virgin Islands | |
Petrodrill Seven Limited
|
British Virgin Islands | |
Petrodrill Six Limited
|
British Virgin Islands | |
Pride Deepwater USA, Inc.
|
Delaware | |
Pride Foramer S.A.S.
|
France | |
Pride Forasol S.A.S.
|
France | |
Pride Global II Ltd.
|
British Virgin Islands | |
Pride Global Ltd.
|
British Virgin Islands | |
Pride International Ltd.
|
British Virgin Islands | |
Pride North America LLC
|
Delaware | |
Pride Offshore International LLC
|
Delaware | |
Pride South Pacific LLC
|
Delaware | |
Pride Tennessee LLC
|
Delaware | |
Pride Wisconsin LLC
|
Delaware | |
Sonamer Angola Ltd.
|
Bahamas | |
Sonamer Drilling International Limited
|
Bahamas | |
Sonamer France S.A.S.
|
France | |
Sonamer Jack-Ups Ltd.
|
Bahamas | |
Sonamer Limited
|
Bahamas | |
Westville Management Corporation
|
British Virgin Islands |
SCHEDULE III-1
ANNEX I
DESCRIPTION OF COMFORT LETTER
FOR REGISTRATION STATEMENTS ON FORM S-3
(Attached)
ANNEX I-1
ANNEX II-A
FORM OF OPINION OF COUNSEL
FOR THE COMPANY
1. | The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority to own and lease its properties and to conduct its business as described in the Pricing Disclosure Package and the Prospectus. | ||
2. | The Company has the corporate power and authority to enter into and perform this Agreement and to issue, sell and deliver the Securities. This Agreement and the Indenture have been duly authorized by all necessary corporate action on the part of the Company and have been duly executed and delivered by the Company. | ||
3. | The Securities have been duly authorized by all necessary corporate action on the part of the Company for issuance and sale to the Underwriters pursuant to this Agreement and have been duly executed and delivered by the Company. | ||
4. | The Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Pricing Disclosure Package and the Prospectus. | ||
5. | The Indenture (assuming due authorization, execution and delivery thereof by the Trustee) constitutes, and the Securities, when issued, executed and authenticated in accordance with the terms of the Indenture, and delivered to and paid for by the Underwriters in accordance with the terms of the Indenture and this Agreement, will constitute, valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general principles of equity (whether considered in a proceeding in equity or at law) and the Securities will be entitled to the benefits of the Indenture. | ||
6. | To the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or any of their respective property of a character required to be disclosed in the Registration Statement or the Pricing Disclosure Package that is not disclosed in the Pricing Disclosure Package. | ||
7. | The section of the Pricing Disclosure Package and the Prospectus entitled Certain United States Federal Income Tax Considerations for Non-U.S. Holders, insofar as it purports to constitute a summary of United States federal income tax law and regulations or legal conclusions with respect thereto, constitutes an accurate summary |
Annex II-A-1
of the matters described therein in all material respects, subject to the assumptions and qualifications set forth therein. | |||
8. | The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds therefrom as described in the Prospectus, will not be an investment company as defined in the Investment Company Act of 1940, as amended. | ||
9. | No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required to be obtained by the Company under Applicable Law in connection with the sale by the Company of the Securities to the Underwriters, except such as have been obtained under the Act and the Trust Indenture Act. Applicable Law means the General Corporation Law of the State of Delaware, the laws of the State of Texas, the laws of the State of New York and the federal laws of the United States of America, in each case other than state securities or blue sky laws, antifraud laws and the rules and regulations of the Financial Industry Regulatory Authority, Inc. | ||
10. | Neither the execution and delivery by the Company of the Original Indenture or the Third Supplemental Indenture, the issuance and sale by the Company of the Securities, nor the performance of the Companys obligations pursuant to this Agreement and the Indenture will conflict with, result in a breach or violation of, or constitute a default under (A) the Certificate of Incorporation and Bylaws of the Company, (B) the terms of any indenture or other agreement or instrument to which the Company is a party or by which it is bound that is material to the Company and its subsidiaries considered as a whole and that (i) relates to indebtedness of the Company for borrowed money or (ii) is filed or incorporated by reference as an exhibit to the Companys Annual Report on Form 10-K for the year ended December 31, 2009 or the Companys Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2010 and June 30, 2010, (C) any Applicable Law or (D) any order of any court or governmental agency or body of the United States of America or the State of Delaware, Texas or New York having jurisdiction over the Company or any of its subsidiaries or any of their respective properties of which such counsel has knowledge. | ||
11. | The Registration Statement has become effective under the Act; any required filing of any Preliminary Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened by the Commission. |
In addition, such counsel shall state that it 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, with representatives of the independent registered public
accounting firm of the Company and with representatives of and counsel for the Underwriters, at
which the contents of the Registration Statement, the Pricing Disclosure
Annex II-A-2
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 it 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 need not pass upon, or 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 paragraphs 4 and 7 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 shall advise the Underwriters that:
(A) the Registration Statement, as of the latest effective date thereof, the Preliminary
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 Act and the rules and regulations of the Commission thereunder; and
(B) nothing came to such counsels attention that caused such counsel to believe that:
(i) the Registration Statement, as of the latest effective date thereof, 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 circumstances under which they were
made, not misleading; or
(iii) the Prospectus, as of its date or as of the Time of Delivery, 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;
it being understood that in each case such counsel need 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 therein or (c) that part of the Registration Statement that
constitutes the Form T-1.
Annex II-A-3
ANNEX II-B
FORM OF OPINION OF BRADY K. LONG
1. | Each of the Company and its Material Subsidiaries that have been organized under the laws of a state of the United States (the U.S. Subsidiaries) has been duly incorporated or formed and is validly existing as a corporation, limited liability company or other entity in good standing under the laws of its state of incorporation or formation and has the corporate, limited liability company or other entity power and authority to own and lease its properties and to conduct its business as described in the Pricing Disclosure Package and the Prospectus. | ||
2. | Each of the Company and the U.S. Subsidiaries is duly qualified and is in good standing as a foreign corporation, limited liability company or other entity authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect. | ||
3. | All the outstanding shares of capital stock of each U.S. Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable, and, except as otherwise set forth in the Pricing Disclosure Package and the Prospectus, all outstanding shares of capital stock of each U.S. Subsidiary are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other lien, encumbrance or adverse claim. | ||
4. | Neither the execution and delivery by the Company of the Indenture, the issuance and sale by the Company of the Securities, nor the performance of the Companys obligations pursuant to this Agreement and the Indenture will violate any of the provisions of the Certificate of Incorporation or Bylaws (or similar organizational documents) of the Company or any U.S. Subsidiary as in effect on the date hereof. | ||
5. | To the knowledge of such counsel, there is no current, pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or to which any of their respective property is subject of a character required to be disclosed in the Registration Statement or the Pricing Disclosure Package that is not disclosed in the Pricing Disclosure Package. | ||
6. | Neither the execution and delivery by the Company of the Original Indenture or the Third Supplemental Indenture, the issuance and sale by the Company of the Securities, nor the performance of the Companys obligations pursuant to this Agreement and the Indenture will (A) conflict with, result in a breach or violation of, or constitute a default under the terms of any indenture or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or bound, or constitute a default under, any statute, rule or regulation known |
Annex II-B-1
to such counsel to which any subsidiary is a party or by which it is bound, or to which any of its properties is subject, or any order known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, except as will not have a Material Adverse Effect, or (B) to the knowledge of such counsel, violate any of the provisions of the organizational documents of any non-U.S. Subsidiary as in effect on the date hereof. |
In addition, such counsel shall state that he 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, with representatives of the independent registered public
accounting firm of the Company and with representatives of and counsel for the Underwriters, at
which the contents of the Registration Statement, the Pricing Disclosure Package, the Prospectus
and related matters were discussed. Although such counsel need not independently verify, or pass
upon or assume any responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus, on the
basis of the foregoing (relying as to materiality to a certain extent upon officers and other
representatives of the Company), such counsel shall advise the Underwriters that nothing came to
such counsels attention that caused such counsel to believe that:
(i) | the Registration Statement, as of the latest effective date thereof, 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 circumstances under which they were made, not misleading; or | ||
(iii) | the Prospectus, as of its date or as of the Time of Delivery, 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; |
it being understood that in each case such counsel need 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 therein or (c) that part of the Registration Statement that
constitutes the Form T-1.
Annex II-B-2