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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 3, 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 3 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. 333-108643 (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 the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or threatened under the Act
(any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a)
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 documents incorporated by
reference in the prospectus contained in the Initial Registration
Statement at the time such part of the
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Initial Registration
Statement became effective, each as amended at the time such part
of the Initial Registration Statement became effective, are
hereinafter collectively called the “Registration
Statement”; the prospectus relating to the Securities, in the
form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this
Agreement, is hereinafter called the “Prospectus”; any
reference herein to any Preliminary 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 Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Initial 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 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 4(a) hereof, including any documents incorporated by
reference therein as of the date of such filing).
(b) The documents
incorporated by reference in 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 Securities Exchange Act of 1934, as amended (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 in the Prospectus as amended or supplemented relating to
such Securities.
(c) The Registration
Statement and the Prospectus conform, and any further amendments or
supplements to the Registration Statement or 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 the
Registration Statement and any amendment thereto and as of
the
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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; 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 in the Prospectus as amended or supplemented
relating to such Securities.
(d) 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
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”).
(e) 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 incorporated and is a
validly existing 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 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.
(f) 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 Prospectus; and the shareholders of the
Company will have no preemptive rights with respect to the
Securities.
(g) 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 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.
(h) 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 Prospectus any material loss or interference with its
business from fire, explosion, flood
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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 Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and
the Prospectus, except as set forth or contemplated in the
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.
(i) Except as set forth in
the 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.
(j) Except as set forth in
the 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.
(k) 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) nor will
such action 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
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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.
(l) The statements set forth
in 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.
(m) The Terms Agreement has
been duly authorized, executed and delivered by the
Company.
(n) 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.
(o) The Company’s
authorized share capital is as set forth in the balance sheet as of
December 31, 2004 incorporated by reference in the Prospectus from
the Company’s Annual Report on Form 10-K for the year ended
December 31, 2004.
(p) 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.
(q) 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 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.
(r) Except as otherwise
stated or incorporated by reference in the Registration Statement
or 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,
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“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.
(s) 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. Since the date of
the latest audited financial statements included or incorporated by
reference in the 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.
(t) 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
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
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Company is otherwise in
material compliance with all applicable provisions of the
Sarbanes-Oxley Act that are effective.
3. 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 7 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 Prospectus.
4. 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; 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) or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the
offering of sale of the Securities.
(c) If the delivery of a
prospectus 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
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statement of a 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 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 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 5.
(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.
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(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
and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or 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 4(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 7 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
savings plan, 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.
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(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) Registration
Statement or give irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Act.
(j) Pursuant to a Share
Purchase Agreement, dated the date of the Terms Agreement, between
the Company, SFIC Holdings (Cayman), Inc. (“SFIC
Holdings”) and Kuwait Petroleum Corporation
(“KPC”) (the “Share Purchase Agreement”),
the Company will use the net proceeds received by it from the sale
of the Securities pursuant to the Terms Agreement to purchase from
SFIC Holdings a number of Ordinary Shares equal to the number of
Ordinary Shares being sold by the Company to the Underwriters under
the Terms Agreement (the “SFIC Holdings
Shares”).
(k) The Company will use its
best efforts to list, subject to notice of issuance, the Securities
on the New York Stock Exchange.
5. Conditions of
the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Securities will be
subject to the accuracy of the representations and warranties on
the part of the Company herein as of the date and time that the
Terms Agreement is executed and delivered by the parties thereto
and as of the Closing Date, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions
precedent:
(a) The Representatives shall
have received an opinion, dated the Closing Date, of Maples and
Calder, special Cayman Islands counsel to the Company, to the
effect that:
(i) the Company has been duly
incorporated and is validly existing as an exempted company in good
standing under the laws of the Cayman Islands with full corporate
power and authority under its Memorandum and Articles of
Association to own its properties and conduct its business as
described in the Prospectus;
(ii) the Company has full
power and authority under its Memorandum and Articles of
Association to enter into, execute and perform its obligations
under the Share Purchase Agreement and the Terms Agreement,
including the purchase of the SFIC Holdings Shares pursuant to the
Share Purchase Agreement and the issue and offer of the Securities
pursuant to the Terms Agreement;
(iii) the Company’s
authorized share capital is as set forth in the balance sheet as of
December 31, 2004 incorporated by reference into the Prospectus
from the Company’s Annual Report on Form 10-K for the year
ended December 31, 2004;
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(iv) the execution and
delivery of the Terms Agreement and the Share Purchase Agreement
have been duly authorized by and on behalf of the Company and,
assuming for the purposes of delivery that the Company has
physically delivered the Terms Agreement and the Share Purchase
Agreement to the other parties thereto, the Terms Agreement and the
Share Purchase Agreement have each been duly executed and delivered
on behalf of the Company;
(v) the issuance and sale of
the Securities have been duly and validly authorized by the
Company, and the Securities, when issued, delivered and sold in
accordance with the provisions of the Terms Agreement, will be duly
and validly issued, fully paid and nonassessable and will conform
as to legal matters in all material respects to the description
thereof contained in the Prospectus; and to such counsel’s
knowledge, the shareholders of the Company have no preemptive
rights with respect to the Securities;
(vi) the execution and
delivery of the Share Purchase Agreement and the Terms Agreement,
the purchase of the SFIC Holdings Shares, the issue and offer of
the Securities by the Company and the performance of its
obligations under the Share Purchase Agreement and the Terms
Agreement do not conflict with or result in a breach of or
constitute a default under any of the terms or provisions of the
Memorandum and Articles of Association of the Company or any order,
law, rule or regulation of any court or government agency or body
of the Cayman Islands having jurisdiction over the Company or any
of its subsidiaries that are incorporated under the laws of the
Cayman Islands or any of their respective properties;
(vii) to the knowledge of
such counsel, no authorizations, consents, approvals, licenses,
validations, orders or exemptions are required by law from any
governmental authorities or agencies, courts or other official
bodies in the Cayman Islands in connection with the (A) execution,
creation or delivery of the Share Purchase Agreement or the Terms
Agreement; (B) subject to the payment of the appropriate stamp
duty, enforcement of the Share Purchase Agreement and the Terms
Agreement; (C) purchase of the SFIC Holdings Shares, (D) offering,
issuance or delivery of the Securities; and (E) performance by the
Company of its obligations under the Share Purchase Agreement and
the Terms Agreement;
(viii) the statements set
forth in the Prospectus under the caption “Description of
Ordinary Shares” insofar as they purport to constitute a
summary of the terms of the Company’s share capital fairly
summarize the matters referred to therein in all material respects,
subject to the qualifications and assumptions stated
therein;
(ix) the statements set forth
in the Prospectus under the caption “Cayman Islands Tax
Considerations,” insofar as such statements purport to
describe the provisions of the laws of the Cayman Islands and
documents referred to therein fairly summarize the matters referred
to therein in all material respects, subject to the qualifications
and assumptions stated therein; and
11
(x) under the laws of the
Cayman Islands, the submission of the Company to the jurisdiction
of any New York State or federal court
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