Exhibit 10.1
GLOBALSANTAFE
CORPORATION
Ordinary Shares
UNDERWRITING
AGREEMENT
1. Introductory.
GlobalSantaFe Corporation, a Cayman
Islands company (“Company”), proposes to issue and sell
from time to time ordinary shares, par value $0.01, of the Company
(the “Ordinary Shares”) registered under the
registration statement referred to in Section 2(a) (the
“Registered Securities”). Particular offerings of the
Registered Securities will be sold pursuant to a Terms Agreement
referred to in Section 4, for resale in accordance with terms
of offering determined at the time of sale.
The Registered Securities involved
in any such offering are hereinafter referred to as the
“Securities.” The firm or firms which agree to purchase
the Securities are hereinafter referred to as the
“Underwriters” of such Securities, and the
representative or representatives of the Underwriters, if any,
specified in a Terms Agreement referred to in Section 4 are
hereinafter referred to as the “Representatives”;
provided , however , that if the Terms Agreement does
not specify any representative of the Underwriters, the term
“Representatives,” as used in this Agreement, shall
mean the Underwriters.
2. Representations and Warranties
of the Company. The
Company represents and warrants to, and agrees with, each
Underwriter that:
(a) A registration statement on Form
S-3 (File No. 333-127168), as may be subsequently amended and
supplemented (the “Initial Registration Statement”), in
respect of the Securities has been filed with the Securities and
Exchange Commission (the “Commission”); the Initial
Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to the Initial Registration
Statement, but including all documents incorporated by reference in
the prospectus included therein, to the Representatives for each of
the other Underwriters have been declared effective by the
Commission in such form; other than a registration statement, if
any, increasing the size of the offering (a “Rule 462(b)
Registration Statement”), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the “Act”),
which became effective upon filing, no other document with respect
to the Initial Registration Statement or document incorporated by
reference therein has heretofore been filed, or transmitted for
filing, with the Commission (other than prospectuses filed pursuant
to Rule 424(b) of the rules and regulations of the Commission under
the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment
thereto or any part thereof or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (the
base prospectus filed as part of the Initial 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
relating to the Securities, 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 the Initial Registration Statement and the
Rule 462(b) Registration Statement, if any, including all exhibits
thereto and the 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 the Initial Registration
Statement, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
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 2(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, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as
of the date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, the Pricing 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 Shares 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, the Pricing
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”); and any
reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in
relation to the applicable Securities in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such
filing).
(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 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 term “Applicable Time” shall have the
meaning assigned to such term in the Terms Agreement. The Pricing
Prospectus, as
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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) to the Terms Agreement 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 Prospectus 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 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
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 of Securities through the Representatives expressly
for use therein; and no such documents were filed with the
Commission since the Commission’s close of business on the
business day immediately prior to the date of this Agreement and
prior to the execution of this Agreement, except as set forth on
Schedule II(b) to the Terms Agreement.
(e) The Registration Statement and
the Pricing Prospectus conform, and the Prospectus and any further
amendments or supplements to the Registration Statement and the
Prospectus will conform, in all material respects to the
requirements of the 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, as of
the Applicable Time as to the Pricing Prospectus, and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except
that the price of the Securities is not included in the Pricing
Prospectus and will be included on the cover page of the
Prospectus; provided , however , that this
representation and warranty shall not apply to any statements or
omissions from any such documents made in reliance upon and in
conformity with written information furnished to the Company by an
Underwriter of Securities through the Representatives expressly for
use therein.
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(f) The Company has been duly
incorporated and is an existing company in good standing under the
laws of the Cayman Islands, with corporate power and authority to
own its properties and conduct its business as described in the
Pricing Prospectus, and the Company is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification wherein
it owns or leases material properties or conducts material
business, except as would not have a material adverse effect on the
condition, financial or otherwise, earnings, business or prospects
of the Company and its Subsidiaries (as defined below), taken as a
whole (a “Material Adverse Effect”).
(g) Each of the Company’s
significant subsidiaries (as defined in Section 1-02(w) of
Regulation S-X promulgated under the Act)
(“Subsidiaries”) has been duly formed and is a validly
existing corporation, company, partnership, or limited liability
company, as the case may be, in good standing under the laws of the
jurisdiction in which it is chartered or organized with corporate,
partnership or limited liability company power, as the case may be,
and authority to own its properties and conduct its business as
described in the Pricing Prospectus, and each of the Subsidiaries
is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which requires
such qualification wherein it owns or leases material properties or
conducts material business, except as would not have a Material
Adverse Effect.
(h) The Securities have been duly
and validly authorized and when issued, delivered and paid for
pursuant to the Terms Agreement on the Closing Date (as defined
below), such Securities will have been duly and validly issued,
fully paid and nonassessble and will conform to the description
thereof contained in the Pricing Prospectus; and the shareholders
of the Company will have no preemptive rights with respect to the
Securities.
(i) None of the Company or its
Subsidiaries is required to be registered or qualified as an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended (the “Investment
Company Act”), and after giving effect to the offer and sale
of the Securities and the application of the proceeds thereof as
described in the Pricing Prospectus, none of the Company or its
Subsidiaries will be required to be registered or qualified as an
“investment company” as defined in the Investment
Company Act.
(j) 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
Registration Statement and the Pricing Prospectus, except
as
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set forth or contemplated in the
Pricing Prospectus there has not been (i) any change in the
share capital, long-term debt, consolidated net current assets,
consolidated revenues, operating income or net income of the
Company or any of its Subsidiaries or (ii) any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the management, business, financial
position, shareholders’ equity or results of operations of
the Company and its Subsidiaries.
(k) Except as set forth in the
Pricing Prospectus, the Company and its Subsidiaries possess and
are in compliance with all approvals, certificates, authorizations,
licenses and permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the
business now being operated by them, except where the failure to
possess such approvals, certificates, authorizations, licenses and
permits or be in compliance therewith is not reasonably likely to
have a Material Adverse Effect, and none of the Company or its
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such approval, certificate,
authorization, license or permit that individually or in the
aggregate, is likely to have a Material Adverse Effect.
(l) Except as set forth in the
Pricing Prospectus, there is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or
foreign, now pending or, to the knowledge of the Company and its
Subsidiaries, threatened against the Company or any of its
Subsidiaries that is likely to result in any Material Adverse
Effect or materially and adversely affect the offering of the
Securities in the manner contemplated by the Prospectus.
(m) The issue and sale of the
Securities and the compliance by the Company with all of the
provisions of the Terms Agreement, and the consummation of the
transactions contemplated therein (i) will not 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 is a party or by which the Company
is bound or to which any of the property or assets of the Company
is subject, (ii) will not result in any violation of
(A) the provisions of the Amended and Restated Memorandum of
Association or Amended and Restated Articles of Association of the
Company or (B) 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 properties, except in the case of any
such conflict, breach, violation or default referred to in
sub-clause (i) or (ii)(B) above 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
Company of the transactions contemplated by this Agreement or the
Terms Agreement, except such as have been or will have been, prior
to the Closing Date, obtained under the 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, except in the case of any failure to obtain a
consent, approval, authorization, order, registration or
qualification would not, individually or in the aggregate, have a
Material Adverse Effect or affect the issuance and sale of the
Securities as contemplated by the Terms Agreement.
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(n) The statements set forth in the
Pricing Prospectus and the Prospectus under the caption
“Description of Ordinary Shares”, insofar as they
purport to constitute a summary of the terms of the share capital,
under the captions “U.S. Federal Income Tax
Considerations” and “Cayman Islands Tax
Considerations” and under the caption “Plan of
Distribution” and “Underwriting”, insofar as they
purport to describe the provisions of the laws and documents
referred to therein, fairly summarize the matters referred to
therein in all material respects, subject to the qualifications and
assumptions stated therein.
(o) The Terms Agreement has been
duly authorized, executed and delivered by the Company.
(p) The Share Purchase Agreement (as
defined below) has been duly authorized, executed and delivered by
the Company and is a valid and legally binding agreement of the
Company, enforceable against it in accordance with its terms,
except as the enforceability thereof may be subject to the effect
of any applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other laws affecting
creditors’ rights generally from time to time in effect and
general principles of equity (regardless of whether considered in a
proceeding in equity or at law), and except as rights to indemnity
and contribution thereunder may be limited by any applicable laws
or principles of public policy.
(q) The Company’s authorized
share capital is as set forth in the balance sheet as of
June 30, 2005 incorporated by reference in the Pricing
Prospectus and the Prospectus from the Company’s Quarterly
Report on Form 10-Q for the quarter ended September 30,
2005.
(r) The Company has been since the
time of the initial filing of the Registration Statement and
continues to be eligible to use Form S-3 for the offering of the
Securities. At the earliest time after the filing of the Initial
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.
(s) PricewaterhouseCoopers, who have
certified certain financial statements of the Company and its
subsidiaries and have audited the Company’s internal control
over financial reporting and management’s assessment thereof,
are an independent registered public accounting firm as required by
the Act and the rules and regulations of the Commission
thereunder.
(t) Each of Netherland, Sewell and
Associates, Inc. and DeGolyer and MacNaughton (together, the
“Engineers”), whose reserve evaluations are referenced
or appear, as the case may be, in the Pricing Prospectus and the
Prospectus were, as of December 31, 2002, December 31,
2003 and December 31, 2004, and are, as of the date hereof,
independent engineers with respect to the Company.
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(u) Except as otherwise stated or
incorporated by reference in the Registration Statement or the
Pricing Prospectus, the Company and its subsidiaries (i) are
in compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, decisions and orders relating to
pollution or the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants (collectively, “Environmental Laws”);
(ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and
(iii) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or
contaminants, except in the case of clauses (i), (ii) and
(iii) for any such failure to comply, or failure to receive
required permits, licenses or approvals, or liability as would not,
individually or in the aggregate, have a Material Adverse
Effect.
(v) The Company and its subsidiaries
maintain systems of internal accounting controls (as such term is
defined in Rule 13a-15(f) of the Exchange Act) that complies with
the requirements of the Exchange Act and has been designed by the
Company’s principal executive officer and principal financial
officer, or under their supervision, to provide reasonable
assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company’s internal control over financial reporting is
effective and the Company is not aware of any material weaknesses
in its internal control over financial reporting. Except as set
forth in Item 9 of the Company’s quarterly reports on
Form 10-Q for the quarters ended March 31,
2005, June 30, 2005 and September 30, 2005, 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 Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over
financial reporting.
(w) The Company has established and
maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that
material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company’s
principal executive officer and its principal financial officer by
others within those entities, and such disclosure controls and
procedures are effective to perform the functions for which they
were established; the Company’s auditors and the Audit
Committee of the Board of Directors have been advised of:
(i) any significant deficiencies and material weaknesses in
the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the
Company’s ability
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to record, process, summarize, and
report financial information; and (ii) any fraud, whether or
not material, that involves management or other employees who have
a role in the Company’s internal control over financial
reporting; since the date of the most recent evaluation of such
disclosure controls and procedures, there has not been any change
in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting; the principal executive officer and principal financial
officer of the Company have made all certifications required by the
Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”)
and any related rules and regulations promulgated by the
Commission, and the statements contained in any such certification
are complete and correct; and the Company is otherwise in material
compliance with all applicable provisions of the Sarbanes-Oxley Act
that are effective.
3. Additional Agreements of the
Company and the Underwriters .
(a) Without the prior consent of the
Representatives, the Company 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; each Underwriter represents and agrees that, without the
prior consent of the Company and the Representatives, it has not
made and will not make any offer relating to the Securities that
would constitute a free writing prospectus. Any such free writing
prospectus, the use of which has been consented to by the Company
and the Representatives, is listed on Schedule II(a) to the
Terms Agreement.
(b) 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. Each Issuer Free Writing Prospectus, when considered
together with the Pricing Prospectus, 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, except that the price of the Securities is
not included therein and will be included on the cover page of the
Prospectus.
(c) 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 which 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.
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4. Purchase and Offering of
Securities. The
obligation of the Underwriters to purchase the Securities will be
evidenced by an exchange of written communications (“Terms
Agreement”) at the time the Company determines to sell the
Securities. The Terms Agreement will incorporate by reference the
provisions of this Agreement and all references herein to the Terms
Agreement shall be deemed to include the terms of this Agreement,
in each case, except as otherwise provided therein, and will
specify the firm or firms which will be Underwriters, the names of
any Representatives, the number of shares to be purchased by each
Underwriter and the purchase price to be paid by the Underwriters.
The Terms Agreement will also specify the time and date of delivery
and payment, which time and date may be postponed by agreement
between the Representatives and the Company or as provided in
Section 8 hereof (such time and date referred to as the
“Closing Date”), the place of delivery and payment and
any details of the terms of offering that should be reflected in
the prospectus supplement relating to the offering of the
Securities. The obligations of the Underwriters to purchase the
Securities will be several and not joint. It is understood that the
Underwriters propose to offer the Securities for sale as set forth
in the Pricing Prospectus.
5. Certain Agreements of the
Company. The Company
agrees with the several Underwriters that it will furnish to the
counsel for the Underwriters designated in the Terms Agreement one
signed copy of the registration statement relating to the
Registered Securities, including all exhibits, in the form it
became effective and of all amendments thereto and that, in
connection with each offering of Securities:
(a) The Company will file the
Prospectus in a form approved by the Underwriters with the
Commission pursuant to and in accordance with Rule 424(b) not later
than the second business day following the execution and delivery
of the Terms Agreement, or, if applicable, such earlier time as may
be required by the Act.
(b) The Company will advise the
Representatives promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and will afford the
Representatives a reasonable opportunity to comment on any such
proposed amendment or supplement; the Company will also advise the
Representatives promptly of the filing of any such amendment or
supplement and of the institution by the Commission of any stop
order proceedings in respect of the Registration Statement or of
any part thereof and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible
its lifting, if issued; the Company will promptly file all material
required to be filed by the Company with the Commission pursuant to
Rule 433(d) under the Act; and the Company will timely file all
reports 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 of sale of the Securities.
(c) 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
events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of
a
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material fact or omit to state any
material fact necessary 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 period to amend or
supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus to comply with
the Act or the Exchange Act, to notify the Representatives and to
file such document and prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written and
electronic copies as may from time to time reasonably be requested
of an amended Prospectus or a supplement to the Prospectus which
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. The terms
“supplement” and “amendment” as used in
this Agreement shall include, without limitation, all documents
filed by the Company with the Commission subsequent to the date of
the Prospectus which are deemed to be incorporated by reference in
the Prospectus. Neither the Representatives’ consent to, nor
the Underwriters’ delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set
forth in Section 6.
(d) As soon as practicable, but not
later than 16 months, after the date of each Terms Agreement, the
Company will make generally available to its securityholders an
earnings statement covering a period of at least 12 months
beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities,
(ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior
to the date of such Terms Agreement and (iii) the date of the
Company’s most recent Annual Report on Form 10-K filed with
the Commission prior to the date of such Terms Agreement, which
will satisfy the provisions of Section 11(a) of the
Act.
(e) The Company will furnish to the
Representatives copies of the Registration Statement, including all
exhibits, any related Preliminary Prospectus, the Prospectus and
all amendments and supplements to such documents, in each case
prior to 10:00 A.M., New York City time on the New York business
day next succeeding the date of the Terms Agreement and from time
to time and in such quantities as are reasonably
requested.
(f) The Company will arrange for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives designate and will continue
such qualifications in effect so long as required for the
distribution; provided , however , that the Company
will not be required in connection therewith to register or qualify
as a foreign corporation where it is not now so registered or
qualified or to execute a general consent to service of process in
any jurisdiction or subject itself to taxation in any jurisdiction
where it is not then so subject.
10
(g) The Company will pay or cause to
be paid the following: (i) the fees, disbursements and
expenses of the Company’s counsel and accountants in
connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation,
printing, reproduction and filing of the Registration Statement,
the Basic Prospectus, the Pricing 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 any Agreement among
Underwriters, this Agreement, any Terms Agreement, any Blue Sky
Memorandum, closing documents (including compilations thereof) and
any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering
and sale under state securities laws as provided in
Section 5(f) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification
and in connection with the Blue Sky survey(s); (iv) the cost
of preparing certificates for the Securities; (v) the cost and
charges of any transfer agent or registrar or dividend disbursing
agent; and (vi) all other costs and expenses incident to the
performance of its obligations hereunder and under any Terms
Agreement which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in
this Section, and Section 8 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.
(h) For the period, if any,
specified in the Terms Agreement, the Company will not offer, sell,
contract to sell, pledge, or otherwise dispose of, directly or
indirectly, any Ordinary Shares or any securities convertible into
or exercisable or exchangeable for Ordinary Shares without the
prior written consent of the Representatives, or publicly disclose
the intention to make any such offer, sale, pledge or disposition,
except (i) grants of employee or director stock options, stock
appreciation rights or restricted stock grants pursuant to the
terms of a plan in effect on the date of the Terms Agreement
(including any such plan as amended after such date so long as the
total shares available for use under the plan is not increased by
such amendment), issuances of Ordinary Shares pursuant to the
exercise of such options or the exercise of any convertible
security, warrants or other stock options outstanding at the date
of the Terms Agreement or issuable under the Company’s
employee benefit plans in effect on the date of the Terms
Agreement, or the filing by the Company with the Commission of a
registration statement on Form S-8, (ii) the filing by the
Company with the Commission of a universal shelf registration
statement on Form S-3, provided that no Ordinary Shares or any
securities convertible into or exercisable or exchangeable for
Ordinary Shares shall be issued, sold or otherwise disposed of
under such universal shelf registration statement during such
period specified in the Terms Agreement without the prior written
consent of the Representatives and (iii) the issuance of up to
1,000,000 Ordinary Shares in connection with acquisition
transactions; provided that it shall be a condition to any such
issuance pursuant to subsection (iii) that the person or
entity acquiring such Ordinary Shares agrees to be bound by the
terms of this lock-up letter provision to the same extent as if the
person or entity acquiring such Ordinary Shares were a party
hereto.
11
(i) If the Company elects to rely
upon Rule 462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington D.C. time, on the date of the
Terms Agreement, and the Company shall at the time of filing either
pay the Commission the filing fee for the Rule 462(b)
R
