Pride International,
Inc.
$500,000,000 8
1
/ 2 %
Senior Notes due 2019
Goldman, Sachs
& Co.
Citigroup Global Markets Inc.
Banc of America Securities LLC
Wachovia Capital Markets, 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
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 $500,000,000
principal amount of the Senior Notes specified above (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 2:45 p.m. (Eastern time) on the date of
this Agreement; the Pricing Prospectus as supplemented by the final
term sheet prepared and filed pursuant to Section 5(a) hereof,
taken together (collectively, the “ Pricing Disclosure
Package ”), as of the Applicable Time did not include
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed on
Schedule II(a) hereto does not conflict with the information
contained in the Registration Statement, the Pricing Prospectus or
the Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Disclosure
Package as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light
of
2
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 Goldman, Sachs & Co. 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) 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
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
3
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 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;
4
(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 Second Supplemental
Indenture thereto to be dated as of June 2, 2009 (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
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;
5
(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 the Debt Securities”, insofar as they
purport to constitute a summary of the terms of the Securities and
under the caption “Underwriting”, “Plan of
Distribution”, 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;
(r) KPMG LLP, who
have certified certain financial statements of the Company and its
subsidiaries, and have audited the Company’s internal control
over financial reporting, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder;
6
(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 Company’s principal executive officer
and principal financial officer, or under their supervision, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles. The Company’s internal control over financial
reporting is effective and the Company 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 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;
(u) The
consolidated financial statements, together with related schedules
and notes, in the Company’s annual report on Form 10-K for
the year ended December 31, 2008, quarterly report on Form
10-Q for the quarterly period ended March 31, 2009 and any
other reports filed by the Company with the Commission under the
Exchange Act subsequent to the filing of 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 Company’s annual
report on Form 10-K for the year ended December 31, 2008, quarterly
report on Form 10-Q for the quarterly period ended March 31,
2009 and any other reports filed by the Company with the Commission
under the Exchange Act subsequent to the filing of 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) The pro forma
financial statements included in the Pricing Prospectus include
assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions and
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma
adjustments reflect in all material respects the proper application
of those adjustments to the historical financial statement amounts
in the pro forma financial statements included in the Pricing
Prospectus. The pro forma financial statements included in the
Pricing Prospectus comply as to form in all material respects with
the applicable requirements of Regulation S-X under the Securities
Act.
(w) 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
7
of common law
or any judicial or administrative interpretation thereof including
any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, “
Hazardous Materials ”) or to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, “
Environmental Laws ”), (B) the 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
(x) 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 Company’s management and such disclosure
controls and procedures were effective as of March 31, 2009;
and to the knowledge of the Company, there have been no changes
since March 31, 2009 that would cause such disclosure controls
and procedures to not be effective in all material
respects.
(y) 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.
(z) 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.
(aa) Except as
disclosed in the Pricing Prospectus, (A) none of the Company,
any of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent,
8
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,
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.
(bb) 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.
(cc) 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, at a purchase price of 98.681% of the principal amount
thereof, plus accrued interest, if any, from June 2, 2009 to
the Time of Delivery (as defined below), the principal amount of
Securities 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) The
Securities 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
9
representing
the Securities to be made available to Goldman, Sachs & Co. for
checking at least 24 hours prior to the Time of Delivery (as
defined below) at the office of DTC or its designated custodian
(the “ Designated Office ”). The time and
date of such delivery and payment shall be 9:30 a.m., New York City
time, on June 2, 2009 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
Commission’s 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
10
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 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
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