NABORS INDUSTRIES, INC. GUARANTEED BY NABORS INDUSTRIES LTD. PURCHASE AGREEMENT CITIGROUP GLOBAL MARKETS INC.
Exhibit 10.1
Execution Copy
$700,000,000
XXXXXX INDUSTRIES, INC.
4.625% SENIOR NOTES DUE 2021
GUARANTEED BY XXXXXX INDUSTRIES LTD.
CITIGROUP GLOBAL MARKETS INC.
August 16, 2011
August 16, 2011
CITIGROUP GLOBAL MARKETS INC.
As representative of the Initial
Purchasers named in Schedule A
Hereto
Purchasers named in Schedule A
Hereto
c/o
CITIGROUP GLOBAL MARKETS INC.
CITIGROUP GLOBAL MARKETS INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Xxxxxx Industries, Inc., a Delaware corporation (the “Company”), proposes, upon the terms and
conditions set forth in this agreement (the “Agreement”), to issue and sell to the several initial
purchasers named in Schedule A hereto (the “Initial Purchasers”) $700,000,000 aggregate principal
amount of its 4.625% Senior Notes due 2021 (the “Notes”) to be issued pursuant to the provisions of
an Indenture to be dated as of the Closing Date (as defined in Section 4) (the “Indenture”) among
the Company, the Guarantor (as defined below), Wilmington Trust National Association, as Trustee
(the “Trustee”) and Citibank, N.A., as Securities Administrator (the “Securities Administrator”).
The Notes will be fully and unconditionally guaranteed (the “Guarantees”) by Xxxxxx Industries
Ltd., a Bermuda exempted company (the “Guarantor”). The Notes and the Guarantees are hereinafter
collectively referred to as the “Securities.”
The Securities will be offered by the Initial Purchasers without being registered under the
Securities Act of 1933, as amended (the “Securities Act”), (i) to persons whom the Initial
Purchasers reasonably believe to be qualified institutional buyers (as defined in Rule 144A under
the Securities Act (“Rule 144A”)) in compliance with the exemption from registration provided by
Rule 144A, and (ii) to certain persons who are not U.S. Persons (as defined in Regulation S
promulgated under the Securities Act (“Regulation S”)) (such persons, “Non-U.S. Persons”) in
offshore transactions in reliance on Regulation S.
The Initial Purchasers and their direct and indirect transferees will be entitled to the
benefits and subject to the obligations of a Registration Rights Agreement to be dated the Closing
Date among the Company, the Guarantor and the Initial Purchasers (the “Registration Rights
Agreement”). Pursuant to the Registration Rights Agreement, the Company and the Guarantor will
agree to file with the U.S. Securities and Exchange Commission (the “Commission”) under the
circumstances set forth therein, a registration statement or an amendment thereto under the
Securities Act relating to the Company’s 4.625% Senior Notes due 2021 (the “Exchange Notes”) and
the Guarantor’s Guarantees (the “Exchange Guarantees”) to be offered in exchange for the Notes and
the Guarantees (the “Exchange Offer”).
In connection with the sale of the Securities, the Company has prepared and delivered to the
Initial Purchasers a preliminary offering memorandum, dated “subject to completion, dated
August 16, 2011” (together with any exhibits thereto and the documents incorporated by
reference therein, the “Offering Memorandum”) and has prepared and delivered a pricing supplement
(the “Pricing Supplement”) dated August 16, 2011, in the form attached hereto as Schedule I,
describing the terms of the Securities, the terms of the offering and the Company and the
Guarantor, each for use by the Initial Purchasers in connection with their solicitation of offers
to purchase the Securities. As used herein, “Disclosure Package” shall mean the Offering
Memorandum, as supplemented by the Pricing Supplement and any written communications (as defined in
Rule 405 under the Securities Act) authorized for use under Section 6(j), each in the most recent
form that has been prepared and delivered by the Company to the Initial Purchasers in connection
with their solicitation of offers to purchase the Securities as of the Applicable Time.
“Applicable Time” means 2:45 P.M. (New York time) on August 16, 2011. Promptly after the
Applicable Time and in any event no later than the Closing Date, the Company will prepare and
deliver to the Initial Purchasers a final offering memorandum (the “Final Offering Memorandum”),
which will consist of the Offering Memorandum with only such changes therein as are required to
reflect the information contained in the Pricing Supplement. The Offering Memorandum and the Final
Offering Memorandum are each sometimes referred to herein as a “Memorandum.” As used herein
(including the schedule and annexes hereto), the term “Memorandum” shall include in each case the
documents incorporated by reference therein. The terms “supplement”, “amendment” and “amend” as
used herein with respect to the Memorandum shall include all documents deemed to be incorporated by
reference in the Memorandum that are filed subsequent to the date of the Memorandum with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
1. Representations and Warranties. The Guarantor and the Company, jointly and severally,
represent and warrant to, and agree with each of the Initial Purchasers as of the Applicable Time
and as of the Closing Date that:
(a) (i) Each document filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Memorandum complied or will comply when so filed in all
material respects with the Exchange Act and the applicable rules and regulations of the
Commission thereunder, and (ii) as of its date the Offering Memorandum did not contain, as
of the Applicable Time the Disclosure Package did not or will not contain, and on and as of
the Closing Date, the Disclosure Package and the Final Offering Memorandum will not contain,
any untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this paragraph do
not apply to statements or omissions in the Disclosure Package or the Final Offering
Memorandum based upon information relating to the Initial Purchasers furnished to the
Company in writing by the Initial Purchasers expressly for use therein, it being understood
and agreed that the only such information is that described in Section 8(b).
(b) Each of the Guarantor and the Company has been duly incorporated, organized or
formed, is validly existing as a Bermuda exempted company and Delaware corporation,
respectively, in good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct its business as
described in the Offering Memorandum and is duly qualified to transact
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business and is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have a material
adverse effect on the Guarantor and its subsidiaries, taken as a whole (a “Material Adverse
Effect”).
(c) Each Significant Subsidiary (as defined below) has been duly organized, is validly
existing as a corporation or limited partnership in good standing under the laws of the
jurisdiction of its organization, has the corporate or limited partnership power and
authority to own its property and to conduct its business to the extent described in the
Offering Memorandum and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect. All of the
issued shares of capital stock (or limited partnership interests) of each Significant
Subsidiary have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned by the Guarantor, directly or indirectly, free and clear of all
liens, encumbrances, equities or claims other than any liens, encumbrances, equities or
claims in favor of the Guarantor or another Significant Subsidiary. “Significant
Subsidiaries” shall mean the Company, Nabors International Finance Inc., Xxxxxx Drilling
USA, LP, Nabors Diamond Holdings, Inc., Yellow Deer Investments Corp., Nabors Holding
Company, Nabors International Management Limited., Xxxxxx Drilling International Limited,
Xxxxxx Drilling International II Limited., Nabors Global Holdings Limited, Nabors Global
Holdings II Limited, Nabors Red Lion Limited, Nabors Blue Shield Ltd., Nabors Lux Finance 1
S.à.x.x., Nabors Lux Finance 2 S.à.x.x., and Nabors Finance Holdings S.à.x.x.
(d) This Agreement has been duly authorized, executed and delivered by the Company and
the Guarantor and is a valid and binding agreement of, each of the Company and the
Guarantor, enforceable in accordance with its respective terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general
principles of equity and implied covenants of good faith and fair dealing.
(e) The outstanding capital stock of the Company is indirectly owned by the Guarantor,
free and clear of all liens, encumbrances, equities or claims other than any liens,
encumbrances, equities or claims in favor of the Guarantor or a Significant Subsidiary.
(f) The issuance of the Securities has been duly authorized and, when the Notes have
been executed and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with the terms of this
Agreement, the Securities will be valid and binding obligations of the Company and the
Guarantor, as the case may be, enforceable in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, moratorium, fraudulent conveyance or similar
laws affecting creditors’ rights generally, general principles of equity and implied
covenants of good faith and fair dealing, and will be entitled to the benefits of the
Indenture and the Registration Rights Agreement.
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(g) The issuance of the Exchange Notes has been duly authorized and, when the Exchange
Notes have been executed and authenticated in accordance with the provisions of the
Indenture and delivered as contemplated in the Registration Rights Agreement, will be valid
and binding obligations of the Company enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, moratorium, fraudulent conveyance or similar laws
affecting creditors’ rights generally, general principles of equity and implied covenants of
good faith and fair dealing.
(h) The issuance of the Exchange Guarantees has been duly authorized and, upon the due
execution and authentication of the Exchange Notes in accordance with the Indenture and the
issuance and delivery of the Exchange Notes in the Exchange Offer contemplated by the
Registration Rights Agreement, will be valid and binding obligations of the Guarantor
enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency,
moratorium, fraudulent conveyance or similar laws affecting creditors’ rights generally,
general principles of equity and implied covenants of good faith and fair dealing.
(i) Each of the Indenture and the Registration Rights Agreement has been duly
authorized and, on or prior to the Closing Date will have been, executed and delivered by,
and, assuming due authorization, execution and delivery of the Indenture by the Trustee and
the Securities Administrator and of the Registration Rights Agreement by the Initial
Purchasers will be a valid and binding agreement of, the Company and the Guarantor,
enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors’ rights generally and general principles of equity and
implied covenants of good faith and fair dealing and except as rights to indemnification and
contribution may be limited under applicable law.
(j) The execution and delivery by the Company and the Guarantor of, and the performance
by the Company and the Guarantor of their respective obligations under, this Agreement, the
Indenture, the Registration Rights Agreement, the Securities, the Exchange Notes and the
Exchange Guarantees (the “Transaction Documents”) will not contravene any provision of (i)
the restated certificate of incorporation, as amended, or by-laws, as amended, of the
Company, the Memorandum of Association or Bye-laws, as amended, of the Guarantor or (ii) any
agreement or other instrument binding upon the Guarantor, the Company or any of the
Significant Subsidiaries that is material to the Guarantor and its subsidiaries, taken as a
whole, or, (iii) to the knowledge of the Guarantor or the Company, any judgment, order,
applicable law or decree of any governmental body, agency or court having jurisdiction over
the Guarantor, the Company or any Significant Subsidiary, except, in the cases of clauses
(ii) and (iii) above, for any such default or violation that would not, individually or in
the aggregate, have a Material Adverse Effect.
(k) There are no material legal or governmental proceedings pending or, to the
knowledge of the Guarantor or the Company, threatened to which the Company or any of the
Significant Subsidiaries is a party or to which any of the properties of the Guarantor or
the Company or any of their subsidiaries is subject other than proceedings accurately
described in all material respects in the Offering Memorandum and proceedings that
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would not have a Material Adverse Effect or material adverse effect on the power or
ability of the Guarantor or the Company to perform its obligations under this
Agreement, the Indenture, the Registration Rights Agreement, the Securities, the Exchange
Notes or the Exchange Guarantees or to consummate the transactions contemplated by the
Offering Memorandum.
(l) None of the Company, the Guarantor nor any affiliate (as defined in Rule 501(b) of
Regulation D under the Securities Act, an “Affiliate”) of the Company or the Guarantor has
directly, or through any agent, (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any security (as defined in the Securities Act) which is
or will be integrated with the sale of the Securities in a manner that would require the
registration under the Securities Act of the Securities, (ii) engaged in any form of general
solicitation or general advertising in connection with the offering of the Securities (as
those terms are used in Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act or (iii) engaged in
any directed selling efforts within the meaning of Regulation S, and all such persons have
complied with the offering restrictions requirement of Regulation S.
(m) Assuming the accuracy of the representations and warranties of the Initial
Purchasers in Section 7 and their compliance with the agreements set forth therein, it is
not necessary in connection with the offer, sale and delivery of the Securities to the
Initial Purchasers in the manner contemplated by this Agreement to register the Securities
under the Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939,
as amended.
(n) The Securities satisfy the requirements set forth in Rule 144A(d)(3) under the
Securities Act.
(o) Neither the Company nor the Guarantor is, and after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as described in the
Disclosure Package and the Final Offering Memorandum neither will be, an “investment
company” as defined in the Investment Company Act of 1940.
(p) Other than the Offering Memorandum, the Disclosure Package and the Final Offering
Memorandum, neither the Company nor the Guarantor (including their respective agents and
representatives, other than the Initial Purchasers in their capacity as such) has made, used
or prepared, authorized, approved or referred to nor will they prepare, make, use,
authorize, approve or refer to any written communication that constitutes an offer to sell
or solicitation of an offer to buy the Securities.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the Initial Purchasers,
and the Initial Purchasers, upon the basis of the representations and warranties herein contained,
but subject to the conditions hereinafter stated, agree, severally and not jointly, to purchase
from the Company the principal amount of Notes set forth opposite such Initial Purchaser’s name on
Schedule A hereto at a purchase price of 99.004% of the principal amount thereof plus accrued
interest thereon from August 23, 2011 (the “Purchase Price”).
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The Company and the Guarantor hereby agree that, without the prior written consent of the
Initial Purchasers, they will not, during the period beginning on the date hereof and continuing to
and including the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt of
the Company or warrants to purchase debt of the Company in each case of a type substantially
similar to the Securities (other than the sale of the Securities under this Agreement and the
exchange of the Securities for the Exchange Notes and the Exchange Guarantees in connection with
the Exchange Offer).
3. Terms of Offering. You have advised the Company and the Guarantor that the Initial Purchasers
will make an offering of the Securities to be purchased by the Initial Purchasers hereunder on the
terms set forth in this Agreement and the Offering Memorandum.
4. Payment and Delivery. Payment of the Purchase Price for the Notes shall be made to the Company
in Federal or other funds immediately available in New York City against delivery of such Notes for
the account of the Initial Purchasers at 10:00 a.m., New York City time, on August 23, 2011, or at
such other time on the same or such other date, as shall hereafter be agreed upon by the Company
and the Initial Purchasers. The time and date of such payment are hereinafter referred to as the
“Closing Date.”
Delivery of the Notes shall be made through the facilities of The Depository Trust Company
(“DTC”) pursuant to its Full-Fast Delivery Program unless the Initial Purchasers shall otherwise
instruct, and Notes sold by the Initial Purchasers in reliance on Rule 144A or Regulation S shall
be represented by one or more global certificates.
5. Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial
Purchasers to purchase and pay for the Notes and related Guarantees on the Closing Date are subject
to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing
Date:
(i) There shall not have occurred any downgrading, nor shall any notice have been given
of any intended or potential downgrading, below Baa2(Negative) from Xxxxx’x Investors
Service, Inc., BBB(Stable) from Standard and Poor’s Ratings Services and BBB+ (Negative)
from Fitch Inc., in the senior unsecured rating accorded the Company or the Guarantor or any
of the Company’s or the Guarantor’s senior unsecured securities or in the rating outlook for
the Company or the Guarantor by any “nationally recognized statistical rating organization,”
as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) There shall not have occurred any change, or any development involving a
prospective change, in the financial position, or in the earnings, business or operations of
the Guarantor and its subsidiaries, taken as a whole, from that set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement) that, in your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Securities on the terms and in the manner contemplated
in the Offering Memorandum.
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(b) The Initial Purchasers shall have received on the Closing Date a certificate, dated
the Closing Date and signed by an executive officer of each of the Company, with respect to
the Company, and the Guarantor, with respect to the Guarantor, to the effect set forth in
Section 5(a) and to the effect that the representations and warranties of the Company and
the Guarantor contained in this Agreement are true and correct as of the Closing Date and
that each of the Company and the Guarantor has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Company and the Guarantor shall have furnished to the Initial Purchasers the
opinion of Xxxxx X. Xxxxxx, Vice President and General Counsel of Nabors Corporate Services,
Inc., dated the Closing Date, substantially to the effect set forth on Annex 5(c) hereto.
In giving such opinion, such counsel may rely as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the Company or the
Guarantor and the Significant Subsidiaries and of public officials. Such opinion may be
relied upon only by the Initial Purchasers in connection with the transactions contemplated
by this Agreement, and may not be used or relied upon by the Initial Purchasers for any
other purpose, or by any other person, firm, corporation or entity for any purpose
whatsoever, without the prior written consent of such counsel. Such opinion may be limited
to the laws of the State of Texas and the corporation, limited partnership and limited
liability company statutes of the State of Delaware.
(d) The Company and the Guarantor shall have furnished to the Initial Purchasers the
opinion of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special United States counsel for the
Company and the Guarantor, dated the Closing Date, substantially to the effect set forth on
Annex 5(d) hereto.
In rendering their opinions pursuant to this Section 5(d), such counsel may rely, to
the extent deemed advisable by such counsel, (i) as to factual matters on certificates of
officers of the Company or the Guarantor and (ii) upon certificates of public officials.
Such opinion shall be limited to the laws of the State of New York, the Federal laws of
the United States and the General Corporation Law of the State of Delaware. Such opinion
shall be rendered as of the Closing Date only in connection with this Agreement and will be
solely for the benefit of the Initial Purchasers, and may not be relied upon, nor shown to
or quoted from, for any other purpose, or to any other person, firm or corporation.
Such counsel shall also state that such counsel has reviewed the Disclosure Package and
the Final Offering Memorandum prepared by the Company and the Guarantor, as well as certain
corporate records and documents furnished to such counsel by the Company and the Guarantor
and such counsel has participated in discussions with representatives of the Company and the
Guarantor, counsel to the Company and counsel to the Initial Purchasers regarding the
contents of the Disclosure Package and the Final
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Offering Memorandum and related matters;
such counsel shall also state that the purpose of their professional engagement was not to
establish or confirm factual matters set forth in the Disclosure Package or the Final
Offering Memorandum and they have not undertaken to verify independently any of such factual
matters and that moreover, many of the determinations required to be made in the preparation
of the Disclosure Package and the Final Offering Memorandum involve matters of a non-legal
nature; and that accordingly, they are not passing upon and do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the Disclosure
Package and the Final Offering Memorandum and shall make no representation that they have
independently verified the accuracy, completeness or fairness of such statements, except as
stated in paragraphs 2, 3, and 11 of Annex 5(d).
Such counsel shall also state that on the basis of and subject to the foregoing that
they confirm that nothing has come to such counsel’s attention that causes such counsel to
believe that: (i) the Disclosure Package as of the Applicable Time and at the Closing Date
contained or contains or (ii) the Final Offering Memorandum, as of its date and at the
Closing Date, contained or contains, an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (it being understood
that such counsel need not comment in respect to (i) or (ii) above with respect to (x) the
financial statements and other financial information or (y) the information derived from the
reports of Xxxxxx and Xxxxx, Ltd., Netherland, Sewall & Associates, Inc., AJM Petroleum
Consultants, and Lonquist & Co., LLC, in each case, contained or incorporated by reference
in the Disclosure Package or the Final Offering Memorandum).
(e) The Company and the Guarantor shall have furnished to the Initial Purchasers the
opinion of Xxxxxxx, special counsel for the Guarantor, dated the Closing Date, in the form
set forth on Annex 5(e) hereto. Such opinion shall be limited to the laws of Bermuda. Such
opinion shall be rendered as of the Closing Date only in connection with the Agreement and
will be solely for the benefit of the Initial Purchasers, and may not be relied upon, nor
shown to or quoted from, for any other purpose, or to any other person, firm or corporation.
(f) The Initial Purchasers shall have received from Xxxxxx & Xxxxxx L.L.P., counsel for
the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the Disclosure Package, the Final Offering
Memorandum and other related matters as the Initial Purchasers may reasonably require, and
the Company and the Guarantor shall have furnished to such counsel such documents as such
counsel reasonably requests for the purpose of enabling such counsel to pass upon such
matters.
(g) The Initial Purchasers shall have received on the date of the Applicable Time and
on the Closing Date letters, dated the date of the Applicable Time and Closing Date,
respectively, in form and substance satisfactory to the Initial Purchasers, from
PricewaterhouseCoopers LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial information
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contained in or incorporated by reference into each Memorandum; provided that the letter
delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
6. Covenants of the Company and the Guarantor. In further consideration of the agreements of the
Initial Purchasers contained in this Agreement, the Company and the Guarantor, jointly and
severally, covenant with the Initial Purchasers as follows:
(a) To furnish to the Initial Purchasers in New York City, without charge, prior to
10:00 a.m. New York City time on August 23, 2011 and during the period mentioned in Section
6(c), as many copies of the Disclosure Package, the Memorandum, any documents incorporated
by reference therein and any supplements and amendments thereto as the Initial Purchasers
may reasonably request.
(b) Before amending or supplementing the Disclosure Package or the Memorandum, to
furnish to the Initial Purchasers a copy of each such proposed amendment or supplement and
not to use any such proposed amendment or supplement to which the Initial Purchasers
reasonably object.
(c) If, during such period after the date hereof and prior to the date on which all of
the Securities shall have been sold by the Initial Purchasers, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Disclosure
Package or the Memorandum in order to make the statements therein, in the light of the
circumstances when the Disclosure Package or the Memorandum is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to
amend or supplement the Disclosure Package or the Memorandum to comply with applicable law,
forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either
amendments or supplements to the Disclosure Package or the Memorandum so that the statements
in the Disclosure Package or the Memorandum as so amended or supplemented will not, in the
light of the circumstances when the Disclosure Package or the Memorandum is delivered to a
purchaser, be misleading or so that the Disclosure Package or the Memorandum, as amended or
supplemented, will comply with applicable law.
(d) To endeavor to qualify the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Initial Purchasers shall reasonably request;
provided, however that neither the Company nor the Guarantor shall be obligated to file any
general consent to service of process or to qualify as a foreign corporation or as a dealer
in securities in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not otherwise so
subject.
(e) Whether or not the transactions contemplated in this Agreement are consummated or
this Agreement is terminated, to pay or cause to be paid all expenses incident to the
performance of their respective obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company’s and the Guarantor’s counsel and the Company’s
and the Guarantor’s accountants in connection with the issuance and sale of the Securities
and all other fees or expenses of the Company and the
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Guarantor in connection with the
preparation of the Disclosure Package and the Memorandum and all amendments and supplements
thereto, including all printing costs associated therewith, and the delivery of copies
thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs
and expenses related to the issuance, transfer and delivery of the Securities to the Initial
Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of
printing or producing any blue sky or legal investment memorandum in connection with the
offer and sale of the Securities under state securities laws and all expenses in connection
with the qualification of the Securities for offer and sale under state securities laws as
provided in Section 6(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Initial Purchasers in connection with such qualification
and in connection with the Blue Sky or legal investment memorandum, (iv) any fees charged by
rating agencies for the rating of the Securities, (v) the costs and charges of the Trustee
and any transfer agent, registrar, depositary, or the Securities Administrator, and (vi) all
other costs and expenses incident to the performance of the obligations of the Company and
the Guarantor hereunder for which provision is not otherwise made in this Section. It is
understood, however, that except as provided elsewhere in this Agreement, the Initial
Purchasers will pay all of their costs and expenses, including fees and disbursements of
their counsel, transfer taxes payable upon resale of any of the Securities by them and any
advertising expenses connected with any offers they may make.
(f) Neither the Guarantor nor any Affiliate of the Guarantor will sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
the Securities Act) which could be integrated with the sale of the Securities in a manner
that would require the registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the Securities by means of any
form of general solicitation or general advertising (as those terms are used in Regulation D
under the Securities Act) or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(h) While any of the Securities remain “restricted securities” within the meaning of
the Securities Act, to make available, upon request, to any seller of such Securities the
information specified in Rule 144A(d)(4) under the Securities Act, unless the Guarantor is
then subject to Section 13 or 15(d) of the Exchange Act.
(i) Until the issuance of the Exchange Notes or the effectiveness of the shelf
registration statement contemplated by the Registration Rights Agreement, the Guarantor will
not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities
Act) to resell any of the Securities which constitute “restricted securities” under Rule 144
that have been reacquired by any of them.
(j) Before using, authorizing, approving or referring to any written communication that
constitutes an offer to sell or a solicitation to buy the Notes or the Guarantees (other
than the Disclosure Package and the Final Offering Memorandum), the Company will furnish to
the Initial Purchasers a copy of such written communication for
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review and will not use,
authorize, approve or refer to any such written communication to which the Initial
Purchasers reasonably object.
7. Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and
not jointly, represents, warrants and agrees that (i) it is a qualified institutional buyer as
defined in Rule 144A under the Securities Act (a “QIB”), and an “accredited investor” within the
meaning of Rule 501 under the Securities Act, (ii) it has not solicited offers for, or offered or
sold, and will not solicit offers for, or offer or sell, such Securities by any form of general
solicitation or general advertising (as those terms are used in Regulation D under the Securities
Act) or in any manner involving a public offering within the meaning of Section 4(2) of the
Securities Act, (iii) it will solicit offers for such Securities only from, and will offer such
Securities only to, persons that it reasonably believes to be QIBs in transactions pursuant to Rule
144A and in connection with each such sale, it has taken or will take reasonable steps to ensure
that such sale is being made in reliance on Rule 144A and (iv) it will solicit offers outside the
United States only from, and will offer such Securities only to, certain persons who are not U.S.
Persons in offshore transactions in reliance on Regulation S. Each Initial Purchaser will comply
with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells
or delivers Securities or has in its possession or distributes the Disclosure Package or the
Memorandum or any such other material, in all cases at its own expense, except as provided in
Section 6(e).
(b) Each Initial Purchaser acknowledges and agrees that the Company and, for the purposes of
the opinions to be delivered to the Initial Purchasers pursuant to Sections 5(c), 5(d), 5(e) and
5(f), counsel for the Company, counsel for the Guarantor and counsel for the Initial Purchasers,
respectively, may rely upon the accuracy of the representations and warranties of such Initial
Purchaser, and compliance of such Initial Purchaser with its agreements, contained in paragraph
7(a) above, and such Initial Purchaser hereby consents to such reliance.
8. Indemnity and Contribution. (a) The Company and the Guarantor, jointly and severally, agree
to indemnify and hold harmless each Initial Purchaser, the respective officers and directors of the
Initial Purchasers, and each person, if any, who controls any Initial Purchaser within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a material fact contained in
the Offering Memorandum, the Disclosure Package, the Final Offering Memorandum, or in any amendment
or supplement thereto, or caused by any omission or alleged omission to state therein a material
fact necessary to make the statements therein in the light of the circumstances under which they
were made not misleading, except insofar as such losses, claims, damages or liabilities are caused
by any such untrue statement or omission or alleged untrue statement or omission based upon
information furnished to the Company in writing by the Initial Purchasers expressly for use
therein, it being understood and agreed that the only information furnished by any such Initial Purchaser consists of the information described in
Section 8(b);
(b) Each Initial Purchaser, severally and not jointly, agrees to indemnify and hold
harmless the Company, its directors, its officers, the Guarantor, its directors, its
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officers and each other person, if any, who controls the Company or the Guarantor within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Company and the Guarantor to the Initial
Purchasers, but only with reference to information relating to the Initial Purchasers
furnished in writing by the Initial Purchasers to the Company expressly for use in the
Offering Memorandum, the Disclosure Package or the Final Offering Memorandum or any
amendments or supplements thereto, it being understood and agreed that the only information
furnished by any such Initial Purchaser consists of the following information in the
Offering Memorandum: the ninth (first sentence only) and tenth paragraphs under the caption
“Plan of Distribution.”
(c) In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought pursuant to
Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify the person
against whom such indemnity may be sought (the “indemnifying party”) in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and disbursements
of such counsel related to such proceeding; but the omission so to promptly notify the
indemnifying party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection provided that the party entitled to
be so notified is not prejudiced by such delay to promptly notify. In any such proceeding,
any indemnified party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not, in respect
of the legal expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified parties and that
all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Initial Purchasers, in the case of parties indemnified pursuant
to Section 8(a), and by the Guarantor, in the case of parties indemnified pursuant to
Section 8(b). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance with
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such request prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party, unless such
settlement (i) includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding, and (ii) does not
include an admission of fault, culpability or a culpable failure to act, by or on behalf of
an indemnified party.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is
unavailable to an indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company or the Guarantor on the one hand and the Initial Purchasers
on the other hand from the offering of the Notes or (ii) if the allocation provided by
clause 8(d)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Company or the Guarantor on the one hand and of the
Initial Purchasers on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company or the Guarantor on
the one hand and the Initial Purchasers on the other hand in connection with the offering of
the Notes shall be deemed to be in the same respective proportions as the net proceeds from
the offering of the Notes (before deducting expenses) received by the Company and the total
discounts and commissions received by the Initial Purchasers, in each case as set forth in
the Offering Memorandum or herein, bear to the aggregate offering price of the Notes. The
relative fault of the Company or the Guarantor on the one hand and of the Initial Purchasers
on the other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company and the Guarantor or by
the Initial Purchasers, and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Company, the Guarantor and the Initial Purchasers agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation or by any other method of allocation that does not take account of the equitable
considerations referred to in Section 8(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in Section 8(d)
shall be deemed to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 8, no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes resold by it in the initial
placement of such Notes were offered to investors exceeds the amount of any damages
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that such Initial Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any indemnified party
at law or in equity. The Initial Purchasers’ obligations to contribute pursuant to this
Section 8 are several in proportion to the respective principal amount of Notes they have
agreed to purchase hereunder and not joint.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company or the Guarantor contained
in this Agreement shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of any Initial
Purchaser or any person controlling any Initial Purchaser or by or on behalf of the Company,
its officers or directors, the Guarantor, its officers or directors or any other person
controlling the Company or the Guarantor and (iii) acceptance of and payment for any of the
Notes.
9. Termination. This Agreement shall be subject to termination by notice given by the Initial
Purchasers to the Company and the Guarantor, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, either the New York Stock Exchange or The NASDAQ
Stock Market LLC, or settlement of trading shall have been materially disrupted, (ii) trading of
any securities of the Guarantor shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities (including without limitation an act of
terrorism) or any change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse to the financial markets generally and (b) in the case of any of the events
specified in clauses 9(a)(i) through 9(a)(iv), such event, singly or together with any other such
event, makes it, in your judgment, impracticable to market the Securities on the terms and in the
manner contemplated by this Agreement and the Offering Memorandum.
10. Default by an Initial Purchaser. If any one or more Initial Purchasers shall fail to purchase
and pay for any of the Notes agreed to be purchased by such Initial Purchaser hereunder and such
failure to purchase shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Initial Purchasers shall be obligated severally to take up and pay
for (in the respective proportions that the principal amount of Notes set forth opposite their
names in Schedule A hereto bears to the aggregate principal amount of Notes set forth opposite the
names of all the remaining Initial Purchasers) the Notes that the defaulting Initial Purchaser or
Initial Purchasers agreed but failed to purchase; provided, however, that in the event that the
aggregate principal amount of Notes that the defaulting Initial Purchaser or Initial Purchasers
agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Notes set forth in Schedule A hereto, the remaining Initial Purchasers shall have the
right to purchase all, but shall not be under any obligation to purchase any, of the Notes, and if
such nondefaulting Initial Purchasers do not purchase all the Notes, this Agreement will
-14-
terminate
without liability to any nondefaulting Initial Purchaser or the Company. In the event of a default
by any Initial Purchaser as set forth in this Section 10, the Closing Date shall be postponed for
such period, not exceeding five business days, as the Initial Purchasers shall determine in order
that the required changes in the Final Offering Memorandum or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting
Initial Purchaser of its liability, if any, to the Company or any nondefaulting Initial Purchaser
for damages occasioned by its default hereunder.
11. Effectiveness; Expense Reimbursement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If this Agreement shall be terminated by the Initial Purchasers because of any failure or
refusal on the part of the Company or the Guarantor to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Company or the Guarantor shall be unable
to perform its obligations under this Agreement, the Company will reimburse the Initial Purchasers
for all out-of-pocket expenses (including the fees and disbursements of their counsel up to a
maximum of $100,000) reasonably incurred by the Initial Purchasers in connection with this
Agreement or the offering contemplated hereunder. Notwithstanding the foregoing, if and when the
sale of the Notes is consummated, the Initial Purchasers will reimburse the Company for certain of
the Company’s expenses in connection with the transactions contemplated by this Agreement in an
amount of $1,008,000.
12. Notices. Notices given pursuant to this Agreement shall be in writing and shall be delivered
(a) if to the Company, at 000 X. Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Chief
Financial Officer, or (b) if to the Guarantor, Xxxxx Xxxxx, 0 Xxx-Xx-Xxxxx Xxxx, Xxxxxxxx, Second
Floor, HM08, Bermuda, or (c) if to the Initial Purchasers, to Citigroup Global Markets Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: General Counsel, or in any case to such other
address as the person to be notified may have requested in writing.
13. Successors. This Agreement is made solely for the benefit of the Initial Purchasers, the
Company, the Guarantor, their respective directors and officers and other controlling persons
referred to in Section 8 hereof, and their respective successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. The term “successors and
assigns” as used in this Agreement shall not include a purchaser from the Initial Purchasers of any
of the Securities in its status as such purchaser.
14. Partial Unenforceability. If any section, paragraph or provision of this Agreement is for any
reason determined to be invalid or unenforceable, such determination shall not affect the validity
or enforceability of any other section, paragraph or provision hereof.
15. Counterparts. This Agreement may be signed (including by facsimile) in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
16. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
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17. No Fiduciary Duty. The Company and Guarantor hereby acknowledge that (a) the purchase and
sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between
the Company and the Guarantor, on the one hand, and the Initial Purchasers and any affiliate
through which they may be acting, on the other, (b) the Initial Purchasers are acting as principal
and not as an agent or fiduciary of the Company or the Guarantor and (c) the Company’s engagement
of the Initial Purchasers in connection with the offering and the process leading up to the
offering is as independent contractors and not in any other capacity. Furthermore, the Company and
the Guarantor agree that they are solely responsible for making their own judgments in connection
with the offering (irrespective of whether any of the Initial Purchasers has advised or is
currently advising the Company or the Guarantor on related or other matters). The Company and the
Guarantor agree that they will not claim that the Initial Purchasers have rendered advisory
services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company or
the Guarantor, in connection with such transaction or the process leading thereto.
18. Headings. The headings of the sections of this Agreement have been inserted for convenience
of reference only and shall not be deemed a part of this Agreement.
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| Very truly yours, XXXXXX INDUSTRIES LTD. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: Xxxx X. Xxxxxxx | ||||
| Title: Corporate Secretary | ||||
| XXXXXX INDUSTRIES, INC. |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: Xxxxx Xxxx | ||||
| Title: Controller | ||||
Accepted as of the date hereof:
CITIGROUP GLOBAL MARKETS INC.
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Managing Director | |||
Signature Page to Purchase Agreement
SCHEDULE I
Pricing Supplement dated August 16, 2011
Initial Purchasers:
|
Citigroup Global Markets Inc. | |
| Mizuho Securities USA Inc. | ||
| UBS Securities LLC | ||
| Xxxxxx Xxxxxxx & Co. LLC | ||
| Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
||
| HSBC Securities (USA) Inc. | ||
| PNC Capital Markets LLC | ||
Amount:
|
$700,000,000 | |
Security Offered:
|
Senior Unsecured Notes | |
Issuer:
|
Xxxxxx Industries, Inc. | |
Guarantor:
|
Xxxxxx Industries Ltd. | |
Benchmark Treasury:
|
2.125% due August 2021 | |
Treasury Yield:
|
2.218% | |
Coupon:
|
4.625% | |
Price to Investor:
|
99.654% | |
Bond Denomination:
|
$2,000 and in integral multiples of $1,000 in excess thereof. | |
Maturity:
|
September 15, 2021 | |
Yield to Maturity:
|
4.668% | |
Call Feature:
|
Make-whole call @ T + 37.5 bps | |
Put:
|
Offer to purchase by the Issuer if a Change of Control Triggering Event occurs (as defined in the Indenture) | |
1st Coupon:
|
March 15, 2012 | |
Coupon Payment Dates:
|
March 15 and September 15 | |
Spread to Treasury:
|
245 bps | |
Offering Status:
|
Rule 144A/Regulation S (with registration rights) | |
CUSIPs:
|
Rule 144A: 629568 AW6 |
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| Regulation S: U6295Y AE3 | ||
| Exchange: 629568 AX4 | ||
ISINs:
|
Rule 144A: US629568AW69 | |
| Regulation S: USU6295YAE33 | ||
| Exchange: US629568AX43 | ||
Trade Date:
|
August 16, 2011 | |
Settlement Date:
|
August 23, 2011 | |
Contingent Interest:
|
No | |
Use of Proceeds:
|
General corporate purposes, including repayment of debt. |
The net proceeds from the offering, after deducting offering commissions and estimated
net expenses payable by us, are expected to be $693 million.
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
We expect delivery of the notes will be made against payment therefor on or about August 23,
2011, which is the fifth business day following the date of pricing of the notes (such settlement
being referred to as “T+5”). Under Rule 15c6-1 of the Securities Exchange Act of 1934, trades in
the secondary market generally are required to settle in three business days unless the parties to
any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the notes on
the date of pricing of the notes or the next succeeding two business days will be required, by
virtue of the fact that the notes initially will settle in T+5, to specify an alternate settlement
cycle at the time of any such trade to prevent failed settlement and should consult their own
advisers.
This communication is for informational purposes only and does not constitute an offer to
sell, or a solicitation of an offer to buy any security. No offer to buy securities described
herein can be accepted, and no part of the purchase price thereof can be received, unless the
person making such investment decision has received and reviewed the information contained in the
relevant offering memorandum in making their investment decisions. This communication is not
intended to be a confirmation as required under Rule 10b-10 of the Securities Exchange Act of 1934.
A formal confirmation will be delivered to you separately.
The senior notes have not been registered under the Securities Act. The notes may not be
offered or sold within the United States or to U.S. persons except to qualified institutional
buyers in reliance on the exemption from registration provided by Rule 144A and to certain non-U.S.
persons in offshore transactions in reliance on Regulation S. You are hereby notified that sellers
of the notes may be relying on the exemption from the provisions of Section 5 of the Securities Act
provided by Rule 144A. You may obtain a copy of the Preliminary Offering Memorandum and the Final
Offering Memorandum (when available) for this transaction by calling your Citigroup Global Markets
Inc., sales representative to request it.
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SCHEDULE A
| Principal Amount of | ||||
| Initial Purchasers | Notes to be Purchased | |||
Citigroup Global Markets Inc. |
$ | 127,000,000 | ||
Mizuho Securities USA Inc. |
$ | 127,000,000 | ||
UBS Securities LLC |
$ | 127,000,000 | ||
Xxxxxx Xxxxxxx & Co. LLC |
$ | 113,000,000 | ||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
$ | 78,000,000 | ||
HSBC Securities (USA) Inc. |
$ | 64,000,000 | ||
PNC Capital Markets LLC |
$ | 64,000,000 | ||
Total |
$ | 700,000,000 | ||
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