EXHIBIT 1.1
OCCIDENTAL PETROLEUM CORPORATION
FORM OF UNDERWRITING AGREEMENT
[Date]
Dear Sirs:
Occidental Petroleum Corporation, a Delaware corporation (the "Company"),
confirms its agreement with [insert names of lead underwriters] (collectively
the "Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 11 hereof) with respect to the sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of the respective principal amounts set forth opposite their names on Schedule A
hereto, of the Company's (the "Notes"). The Notes are
to be issued pursuant to the Indenture (the "Indenture", which term, for the
purpose of this Agreement, shall include the Officers' Certificate with respect
to the Notes delivered pursuant to Sections 201 and 301 of the Indenture), dated
as of April 1, 1998, between the Company and The Bank of New York, as trustee
(the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333- ) and, if
applicable, one or more amendments thereto for the registration of senior debt
securities, including the Notes, under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"). Such registration statement (as amended, if applicable)
has been declared effective
by the Commission and the Indenture has been qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"). Such registration statement (as
amended, if applicable) and the prospectus constituting a part thereof, together
with any prospectus supplement relating to the Notes, including, in each case,
all Incorporated Documents (as hereinafter defined), are referred to herein as
the "Registration Statement" and the "Prospectus," respectively, except that, if
any revised prospectus or revised prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the offering of the Notes
that is not required to be filed by the Company pursuant to Rule 424(b) of the
1933 Act Regulations, the term "Prospectus" shall refer to such revised
prospectus or prospectus supplement, as the case may be, from and after the time
it is first provided to the Underwriters for such use. The term "Registration
Statement" shall include any related registration statement filed pursuant to
Rule 462(b) of the 1933 Act Regulations. Any reference herein to the
Registration Statement, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents, financial statements and schedules
incorporated or deemed to be incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act, and any reference to any amendment or
supplement to the Registration Statement or the Prospectus shall be deemed to
refer to and include any documents, financial statements and schedules filed by
the Company with the Commission under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and so incorporated or deemed to be incorporated by
reference (such incorporated documents, financial statements and schedules being
herein called the "Incorporated Documents"). Notwithstanding the foregoing, for
purposes of this Agreement any prospectus supplement prepared or filed with
respect to an offering pursuant to the Registration Statement of a series of
debt securities other than the Notes shall not be deemed to have supplemented
the Prospectus.
The Company understands that the Underwriters propose to make a public
offering of the Notes as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to each of the Underwriters as
follows:
(i) The Incorporated Documents, when they were filed or became
effective (or, if an amendment with respect to any such Incorporated
Document was filed or
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became effective, when such amendment was filed or became effective) with
the Commission, as the case may be, complied in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and any
Incorporated Documents filed subsequent to the date hereof and prior to the
termination of the offering of the Notes, will, when they are filed with
the Commission, comply in all material respects with the requirements of
the 1934 Act and the 1934 Act Regulations; no such Incorporated Document,
when it was filed or became effective (or, if an amendment with respect to
any such Incorporated Document was filed or became effective, when such
amendment was filed or became effective) with the Commission, contained,
and no Incorporated Document filed subsequent to the date hereof and prior
to the termination of the offering of the Notes will contain, an untrue
statement of a material fact or omitted, or will 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 or will be
made, not misleading.
(ii) Each preliminary prospectus relating to the Notes filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 of the 1933 Act
Regulations, when so filed, and the Registration Statement, at the time it
became effective, complied in all material respects with the provisions
of the 1933 Act and the 1933 Act Regulations; at the date hereof and at the
Closing Time, the Registration Statement and the Prospectus, and any
supplement or amendment thereto relating to the Notes, comply and will
comply in all material respects with the provisions of the 1933 Act and the
1933 Act Regulations; and the Registration Statement and the Prospectus,
and any such supplement or amendment thereto relating to the Notes, at all
such times did not 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, in the light of the circumstances
under which they were made, not misleading; except that this representation
and warranty does not apply to statements or omissions in the Registration
Statement, the Prospectus or any preliminary prospectus, or any amendment
or supplement thereto, made in reliance upon information furnished to the
Company in writing by or on behalf of any Underwriter expressly for use
therein or to those parts of the Registration Statement that constitute the
Trustee's Statement of Eligibility on Form T-1 under the 1939 Act (the
"Form T-1"). There is no contract or document of a character required to
be described in the Registration Statement or the Prospectus or to
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be filed as an exhibit to the Registration Statement that is not described
or filed as required.
(iii) This Agreement, the Indenture and the Notes have been duly
authorized by the Company and conform in all material respects to the
descriptions thereof in the Prospectus.
(iv) The Indenture (assuming the due execution and delivery thereof
by the Trustee) is, and the Notes (when executed by the Company and
authenticated in accordance with the Indenture and delivered to and paid
for by the purchasers thereof) will be, the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except as such enforceability may be limited by (A)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting the enforcement of
creditors' rights generally and (B) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). The Notes (when executed by the Company and
authenticated in accordance with the terms of the Indenture and delivered
to and paid for by the purchasers thereof) will be entitled to the benefits
of the Indenture (subject to the exceptions set forth in the preceding
sentence).
(v) The Company and each of Occidental Chemical Holding Corporation,
a California corporation, and Occidental Oil and Gas Corporation, a
California corporation (each a "Principal Domestic Subsidiary" and
collectively the "Principal Domestic Subsidiaries") is a validly existing
corporation in good standing under the laws of its state of incorporation.
The Company and each Principal Domestic Subsidiary has full corporate power
and authority to own its properties and carry on its business as presently
conducted, as described in the Prospectus, and is duly registered or
qualified to conduct business, and is in good standing, in each
jurisdiction in which it owns or leases property or transacts business and
in which such registration or qualification is necessary, except as to
jurisdictions where the failure to do so would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. All of the
outstanding capital stock or other securities evidencing equity ownership
of each Principal Domestic Subsidiary has been duly and validly authorized
and issued and is fully paid and non-assessable, and is owned by the
Company, directly or indirectly through subsidiaries, free and clear of any
security interest, claim, lien or encumbrance. There are no
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outstanding rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock or other
equity interest in any such Principal Domestic Subsidiary, except for
rights, warrants or options held by the Company.
(vi) Except as contemplated in the Prospectus or reflected therein by
the filing of any amendment or supplement thereto or any Incorporated
Document, since the date of the most recent consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, unless the Company has notified the
Underwriters as provided in Section 4(d) hereof, there has not been any
material adverse change in the consolidated financial condition of the
Company and its subsidiaries, taken as a whole.
(vii) The Company is not in violation of its Restated Certificate of
Incorporation or Bylaws, in each case, as amended. The execution and
delivery of this Agreement by the Company, the issuance and sale of the
Notes and the performance by the Company of its obligations under this
Agreement and the Indenture will not conflict with or constitute a breach
of or a default (with the passage of time or otherwise) under (A) the
Restated Certificate of Incorporation or Bylaws of the Company, in each
case, as amended, (B) any agreement or instrument (which is, individually
or in the aggregate, material to the Company and its subsidiaries, taken as
a whole) to which the Company is a party or by which it is bound or (C) any
order of any court or governmental agency or authority presently in effect
and applicable to the Company or any Principal Domestic Subsidiary. Except
for orders, permits and similar authorizations required under the
securities or Blue Sky laws of certain jurisdictions, including
jurisdictions outside the United States, or required of any securities
exchange on which any of the Notes might be listed, no consent, approval,
authorization or other order of any regulatory body, administrative agency
or other governmental body is legally required for the valid issuance and
sale of the Notes.
(viii) To the best of the Company's knowledge, the accountants who
have audited and reported upon the consolidated financial statements filed
with the Commission as part of the Registration Statement and the
Prospectus are independent accountants as required by the 1933 Act. The
consolidated financial statements included in the Registration Statement
and Prospectus, or incorporated therein by reference, fairly present the
consolidated financial
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position and results of operations of the entities to which such statements
relate at the respective dates and for the respective periods to which they
apply. Such consolidated financial statements have been prepared in
accordance with generally accepted accounting principles consistently
applied, except as set forth in the Registration Statement and Prospectus.
(ix) The Company has complied with, and is and will be in compliance
with, the provisions of that certain Florida act relating to disclosure of
doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder (collectively, the "Cuba
Act") or is exempt therefrom.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to the Underwriters or to counsel for the Underwriters
in connection with transactions contemplated hereby shall be deemed a
representation and warranty by the Company to such Underwriters as to the
matters covered thereby on the date of such certificate.
Section 2. Sale and Delivery to the Underwriters; Closing.
(a) Purchase and Sale. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at % of the principal amount thereof, the principal amount
of Notes set forth on Schedule A opposite the name of such Underwriter.
(b) Closing Time. Payment of the purchase price for, and delivery of the
certificates for, the Notes shall be made at the offices of , or at
such other place as shall be agreed upon by the Underwriters and the Company, at
10:00 a.m., New York City time, on the third business day (fourth, if the
pricing occurs after 4:30 p.m. (New York City time) on any given day) after
execution and delivery of this Agreement (unless postponed in accordance with
the provisions of Section 11), or such other time not later than ten business
days after such date as shall be agreed upon by the Underwriters and the Company
(such time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately available
funds to a bank account designated by the Company, against delivery to the
Underwriters of certificates for the Notes to be purchased by them.
Certificates for the Notes shall be in such denominations and
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registered in such names as the Underwriters may request in writing by 12:00
noon New York City time at least one full business day before Closing Time. It
is understood that each Underwriter has authorized for its respective
account, to accept delivery of, and receipt for, and make payment of the
purchase price for, the Notes which such Underwriter has agreed to purchase. The
certificates for the Notes will be made available for examination and packaging
by the Underwriters not later than 10:00 a.m. on the last business day prior to
Closing Time in The City of New York.
Section 3. Foreign Offerings.
Each Underwriter, severally and not jointly, represents and agrees that (i)
such Underwriter has not solicited, and will not solicit, offers to purchase any
of the Notes from, (ii) such Underwriter has not sold, and will not sell, any of
the Notes to, and (iii) such Underwriter has not distributed, and will not
distribute, the Prospectus to, any person or entity in any jurisdiction
outside of the United States (collectively "Foreign Offers and Sales") except,
in each case, in compliance in all material respects with all applicable laws
and, in connection with the initial offering of, or subscription for, any of the
Notes, only with the prior written consent of the Company and in full
compliance with any requirements and procedures established by the Company with
respect to any such Foreign Offers and Sales. For the purposes of this
paragraph, "United States" means the United States of America, its territories,
its possessions (including the Commonwealth of Puerto Rico) and other areas
subject to its jurisdiction.
In particular and without limiting the generality of the foregoing:
(i) Each Underwriter, severally and not jointly, agrees to
distribute, in connection with any Foreign Offers and Sales, only those
Prospectuses used in connection therewith that have been appropriately
"stickered" for use in the jurisdiction in which such Foreign Offers and
Sales are to be made.
(ii) With respect to the United Kingdom, each Underwriter, severally
and not jointly, represents and agrees that (A) it has not offered or sold
and, prior to the expiry of the period of six months from the Closing Time,
will not offer or sell any Notes to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and
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will not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995, (B) it has
complied and will comply with all applicable provisions of the Financial
Services Act of 1986 (the "Financial Services Act") with respect to
anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom and (C) it has only issued or passed on, and
will only issue or pass on, in the United Kingdom any document received by
it in connection with the issue of the Notes, other than any document which
consists of or any part of listing particulars, supplementary listing
particulars or any other document required or permitted to be published by
listing rules under Part IV of the Financial Services Act, to a person who
is of a kind described in Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1996 or is a person to
whom such document may otherwise lawfully be issued or passed on.
(iii) With respect to Japan, each Underwriter understands that the
Notes have not been, and will not be, registered under the Securities and
Exchange Law of Japan, and, accordingly, each Underwriter, severally and
not jointly, represents and agrees that (A) in connection with the initial
offering of any of the Notes, such Underwriter has not, directly or
indirectly, offered or sold, and will not, directly or indirectly, offer or
sell, any of the Notes in Japan or to any resident of Japan (including any
corporation or other entity incorporated or organized under the laws of
Japan), or to others for re-offering or resale, directly or indirectly, in
Japan or to any such resident of Japan, except, in each case, in compliance
in all material respects with the Securities and Exchange Law of Japan, and
(B) with respect to any such sale of the Notes made by such Underwriter,
such Underwriter will effect all necessary filings in connection with such
sale, including, without limitation, any required filings of notifications
with the Minister of Finance of Japan, as required pursuant to the
provisions of relevant securities or foreign exchange control legislation
of Japan.
(iv) With respect to the Provinces of Canada (the "Provinces"), each
Underwriter, severally and not jointly, represents and agrees that, in
connection with the initial offering of any of the Notes, (A) such
Underwriter will not, directly or indirectly, offer or sell any of the
Notes in any of the Provinces or to, or for the benefit of, any resident
of any of the Provinces after the date (the "Canadian Ending Date") set by
the Company for the end of the offer of such Notes, and, without the prior
written consent of the Company,
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such Underwriter will not distribute or permit to be distributed any
Prospectus in any of the Provinces or to, or for the benefit of, any
resident of any of the Provinces after the Canadian Ending Date, (B) with
respect to anything done by such Underwriter in relation to the Notes in,
from, or otherwise involving, any of the Provinces, such Underwriter has
complied, and will comply, in all material respects, with all applicable
provisions of the securities legislation of Canada and the Provinces (the
"Canadian Securities Legislation") (including, without limitation, the
conveyance, or the provision of assistance to the Company in conveying, any
right of rescission, damages or other right as required by applicable
Canadian Securities Legislation) so that any offer or sale of any of the
Notes in the Provinces, or any of them, will qualify for exemptions from
prospectus, registration and equivalent requirements, or exemptions from
other applicable requirements, as prescribed by the Canadian Securities
Legislation in force at the time when such offer or sale is made, provided
that such offer or sale is made pursuant to the Prospectus, as
supplemented to the extent required by the Canadian Securities Legislation
(the Prospectus, as so supplemented, hereinafter referred to as the
"Canadian Offering Memorandum"), (C) with respect to Notes offered or sold,
or to be offered or sold, by such Underwriter, or Notes purchased, or to be
purchased, by such Underwriter, it has provided, and will provide,
investors, where required pursuant to the provisions of applicable Canadian
Securities Legislation, with (1) the Canadian Offering Memorandum, and (2)
a list of the documents filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the
date of the final Prospectus and will obtain from each of such investors an
acknowledgment in form satisfactory to the Company, and (D) with respect to
any such sale of the Notes made by such Underwriter, such Underwriter will
effect all necessary filings in connection with such sale, including,
without limitation, any required filings of (x) reports of trades and (y)
the Canadian Offering Memorandum, in each case with provincial securities
commissions, as required pursuant to the provisions of applicable Canadian
Securities Legislation.
Section 4. Covenants of the Company.
The Company covenants with each Underwriter as follows:
(a) Notice of Certain Events. During the period from the date hereof to
and including the time at which the distribution of the Notes is completed, the
Company
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will notify the Underwriters promptly (i) of the effectiveness of any
post-effective amendment to the Registration Statement, (ii) of the receipt of
any comments from the Commission with respect to the Registration Statement or
the Prospectus, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any such stop order and, if any
such stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Proposed Filings. During the period from the date hereof to and
including the Closing Time, the Company will not file any amendment or
supplement to the Registration Statement, or file any amendment or supplement to
the Prospectus, in any such case relating to the Notes, of which the
Underwriters shall not previously have been advised or to which the Underwriters
shall reasonably object in writing, unless, in the judgment of the Company and
its counsel, such amendment or supplement is necessary to comply with law.
(c) Copies of the Registration Statement and the Prospectus. The Company
will deliver to each of the Underwriters one signed and as many conformed copies
of the Registration Statement (as originally filed) and of each amendment
thereto relating to the Notes (including the Incorporated Documents and any
exhibits filed therewith or incorporated by reference therein) as the
Underwriters may reasonably request. The Company will furnish to the
Underwriters as many copies of the Prospectus (as amended or supplemented) as
the Underwriters shall reasonably request so long as the Underwriters are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes.
(d) Revisions of Prospectus--Material Changes. So long as the
Underwriters are required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Notes, if any event shall occur or
condition exist as a result of which it is necessary, in the opinion of counsel
for the Company and of counsel for the Underwriters, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading, in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of
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the 1933 Act or the 1933 Act Regulations, prompt notice shall be
given to the Underwriters, and the Company will promptly prepare and file an
amendment or supplement to the Prospectus so that the Prospectus, as amended or
supplemented, will not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein not
misleading, in the light of the circumstances existing at the time it is
delivered to the Underwriters.
(e) Earnings Statements. The Company will make generally available to its
security holders a consolidated earnings statement (which need not be audited)
covering a period of at least twelve months commencing after the Closing Time
(but in no event commencing later than 90 days after the Closing Time), as soon
as is reasonably practicable after the end of such period, which earnings
statement shall satisfy the provisions of Section 11(a) and Rule 158 of the 1933
Act.
(f) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Underwriters, to qualify the Notes for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Underwriters may reasonably designate (provided no registration shall be
required in any jurisdiction outside the United States), and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; provided, however, that the Company will promptly notify the
Underwriters of any suspension of any such qualifications; and provided,
further, that the Company shall not be obligated to register or qualify as a
foreign corporation or take any action which would subject it to general service
of process in any jurisdiction where it is not now so subject.
(g) Filing of Prospectus. Immediately following the execution and
delivery of this Agreement, the Company will prepare and file or transmit for
filing with the Commission in accordance with Rule 424(b) of the 1933 Act
Regulations, copies of a supplement to the Prospectus containing the terms of
the Notes and such other information as the Underwriters and the Company deem
appropriate.
[(h) Listing of Notes. The Company will use its reasonable best efforts
to cause the Notes to be duly authorized for listing on the New York Stock
Exchange.]
Section 5. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
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(i) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements
thereto and all Incorporated Documents;
(ii) The preparation, filing and printing of this Agreement;
(iii) The preparation, printing, issuance and delivery of the Notes;
(iv) The fees and disbursements of the Trustee and its counsel, of
any calculation agent or exchange rate agent and of The Depository Trust
Company;
(v) The qualification of the Notes under securities laws in
accordance with the provisions of Section 4(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel to the
Underwriters in connection therewith and in connection with the
preparation of any Blue Sky survey and any legal investment survey;
(vi) The printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto relating to the Notes, and the delivery by the Underwriters of the
Prospectus and any amendments or supplements thereto in connection with
solicitations of offers to purchase, or confirmations of sales of, the
Notes;
(vii) The preparation, printing and delivery to the Underwriters of
copies of the Indenture;
(viii) Any fees charged by rating agencies for the rating of the
Notes; and
(ix) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc. relating
to the offering made hereby.
If this Agreement is terminated pursuant to any of the provisions hereof
(otherwise than by notice given by the Underwriters in connection with the
occurrence of any event set forth in clauses (ii) through (iv) of Section 10(a)
or pursuant to Section 11), the Company shall reimburse the Underwriters for all
of their
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out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 6. Conditions of Underwriters' Obligations.
The obligations of the Underwriters hereunder are subject to the accuracy
of the representations and warranties on the part of the Company herein and the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all covenants and agreements herein contained on its part to
be performed and observed and to the following additional conditions precedent:
(a) At the Closing Time, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be instituted or threatened or, to the knowledge of the Company or
any of the Underwriters, contemplated by the Commission; no stop order
suspending the sale of the Notes in any jurisdiction designated by the
Underwriters pursuant to Section 4(f) shall have been issued and no proceedings
for that purpose shall have been instituted or threatened or, to the knowledge
of the Company or the Underwriters, shall be contemplated; any request of the
Commission for additional information (to be included in the Registration
Statement or Prospectus or otherwise) shall have been complied with to the
satisfaction of the Underwriters. The supplement to the Prospectus referred to
in Section 4(g) of this Agreement shall have been transmitted to the Commission
for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the
prescribed time period, and prior to Closing Time the Company shall have
provided evidence satisfactory to the Underwriters of such timely filing.
(b) The Underwriters shall have received an opinion from Xxxxxx X. Xxxxxx,
Esq., Associate General Counsel for the Company, dated as of the Closing Time
and in form and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is validly existing in
good standing under the laws of the State of Delaware. Each Principal
Domestic Subsidiary is validly existing in good standing under the laws of
its state of incorporation.
(ii) The Company has full corporate power and corporate authority to
enter into and perform its obligations under this Agreement and the Inden-
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ture, to borrow money as contemplated in this Agreement and the Indenture,
and to issue, sell and deliver the Notes.
(iii) This Agreement has been duly authorized, executed and delivered
by the Company.
(iv) The Indenture has been duly authorized, executed and delivered
by the Company and (assuming the due authorization, execution and delivery
thereof by the Trustee) is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except that
(x) such enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally or (B) general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (y) the waiver contained in Section 515 of the
Indenture may be deemed unenforceable.
(v) No consent or approval of any United States governmental
authority or other United States person or United States entity is required
in connection with the issuance or sale of the Notes other than
registration thereof under the 1933 Act, qualification of the Indenture
under the 1939 Act, and such registrations or qualifications as may be
necessary under the securities or Blue Sky laws of the various United
States jurisdictions in which the Notes are to be offered or sold. The
opinion expressed in this paragraph (v) is limited to those consents and
approvals which, in such counsel's experience, are normally applicable to
transactions of the type contemplated by this Agreement.
(vi) The Notes have been duly authorized by the Company and, when
executed by the Company and authenticated by the Trustee in accordance with
the terms of the Indenture (assuming the due authorization, execution and
delivery of the Indenture by the Trustee) and issued to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company enforceable against the Company in accordance
with their respective terms, except that (x) such enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally or (B) general principles of equity (regardless of whether such
enforcement is sought in a
14
proceeding in equity or at law) and (y) the waiver contained in Section 515
of the Indenture may be deemed unenforceable.
(vii) The Registration Statement has become effective under the 1933
Act and the Indenture has been qualified under the 1939 Act, and, to the
best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated by the Commission.
(viii) The execution and delivery of this Agreement and the Indenture
by the Company, the issuance and sale of the Notes and the performance of
the Company's obligations under this Agreement and the Indenture will not
conflict with or constitute a breach of or a default (with the passage of
time or otherwise) under (A) the Restated Certificate of Incorporation or
Bylaws of the Company, in each case, as amended, (B) any statute, law or
regulation to which the Company or any Principal Domestic Subsidiary or any
of their respective properties may be subject or (C) any judgment, decree
or order, known to such counsel, after reasonable inquiry, of any court or
governmental agency or authority entered in any proceeding to which the
Company or any Principal Domestic Subsidiary was or is now a party or by
which it is bound, except that such counsel may state that the opinion set
forth in clause (B) of this paragraph (viii) is limited to those statutes,
laws or regulations in effect on the date of such opinion which, in such
counsel's experience, are normally applicable to transactions of the type
contemplated by this Agreement and that such counsel expresses no opinion
as to the securities or Blue Sky laws of the various jurisdictions in which
the Notes are to be offered.
(ix) The Registration Statement, as of its effective date, and the
Prospectus, as of its date, including each Incorporated Document when such
Incorporated Document was filed or became effective, or if any such
Incorporated Document was amended, when such amendment was filed or became
effective, appeared on their face to be appropriately responsive in all
material respects to the applicable requirements of the 1933 Act or the
1934 Act, as the case may be, except that in each case such counsel need
not (x) assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus or (y) express an opinion as to the financial statements and
schedules and other financial data
15
included or incorporated by reference therein or as to the Trustee's
Statement of Eligibility on Form T-1 under the 1939 Act (the "Form T-1").
(x) The statements in the Prospectus under the captions "Description
of the Debt Securities" and "Description of the Notes," insofar as they
purport to summarize certain provisions of documents specifically referred
to therein, are in all material respects accurate summaries of such
provisions.
(xi) Except as set forth in the Prospectus (including the
Incorporated Documents), there is not pending or, to the knowledge of such
counsel, after reasonable inquiry, threatened any action, suit or
proceeding against the Company or any of its subsidiaries before or by any
court or governmental agency or body, which is likely (to the extent not
covered by insurance) to have a material adverse effect on the consolidated
financial condition of the Company and its subsidiaries, taken as a whole.
(xii) To the best of such counsel's knowledge, after reasonable
inquiry, there is no contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement that is not described or filed as
required.
(xiii) To the best of such counsel's knowledge, after reasonable
inquiry, the Company is not in violation of its Restated Certificate of
Incorporation or Bylaws, in each case, as amended.
(xiv) To the best of such counsel's knowledge, after reasonable
inquiry, the execution and delivery of this Agreement and the Indenture by
the Company, the issuance and sale of the Notes and the performance by the
Company of its obligations under this Agreement and the Indenture will not
conflict with or constitute a breach of or a default (with the passage of
time or otherwise) under any agreement or instrument that is, individually
or in the aggregate, material to the Company and its subsidiaries, taken as
a whole, to which the Company is a party or by which it is bound.
In rendering the opinions set forth in paragraphs (iv) and (vi) above,
such counsel may state that such enforcement may be limited by (i)
requirements that a claim with respect to any Notes denominated other than
in United States dollars (or a judgment denominated other than in United
States dollars in respect of such claim) be converted into United States
dollars at a
16
rate of exchange prevailing on a date determined pursuant to applicable law
and (ii) governmental authority to limit, delay or prohibit the making of
payments outside the United States or in foreign currency or composite
currency.
In rendering the foregoing opinions such counsel may state that with
respect to certain matters he has relied upon advice of other counsel
employed by the Company who are more familiar with such matters.
In addition, such counsel shall state that he has participated in
conferences with officers and other representatives of the Company,
outside counsel for the Company, representatives of the independent public
accountants for the Company, representatives of the Underwriters and
counsel for the Underwriters, at which conferences the contents of the
Registration Statement and Prospectus and related matters were discussed
and, although he is not passing upon, and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (other than as
set forth in paragraph (x) above) and has not made any independent check or
verification thereof, on the basis of the foregoing, nothing has come to
such counsel's attention that leads him to believe that either the
Registration Statement (including the Incorporated Documents) at the time
such Registration Statement became effective, and if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed by
the Company with the Commission subsequent to the effectiveness of the
Registration Statement and prior to the date of such statement, then at the
time such amendment became effective or at the time of the most recent such
filing (to the extent deemed to be incorporated by reference therein),
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, or that the Prospectus (including the
Incorporated Documents) as of its date and as of the Closing Time
contained or contains an untrue statement of a material fact or omitted or
omits 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 such counsel need express no opinion with respect to the
financial statements, schedules and other financial data included or
incorporated by reference in the Registration Statement or Prospectus or
with respect to the Form T-1.
17
(c) The Underwriters shall have received an opinion from counsel to the
Underwriters, dated as of the Closing Time and in form and substance
satisfactory to the Underwriters.
(d) Officer's Certificate. Except as contemplated in the Prospectus or
reflected therein by the filing of any amendment or supplement thereto or any
Incorporated Document, at the Closing Time, there shall not have been, since the
date of the most recent consolidated financial statements included or
incorporated by reference in the Prospectus, any material adverse change in the
consolidated financial condition of the Company and its subsidiaries, taken as a
whole. The Underwriters shall have received a certificate signed by an officer
of the Company, dated as of the Closing Time, to the effect (i) that there has
been no such material adverse change, (ii) that the representations and
warranties of the Company contained in Section 1(a) hereof (other than Section
1(a)(vi)) are true and correct in all material respects with the same force and
effect as though expressly made at and as of the date of such certificate, (iii)
that the Company has complied with all agreements and satisfied all conditions
required by this Agreement or the Indenture on its part to be performed or
satisfied at or prior to the date of such certificate and (iv) that no stop
order suspending the effectiveness of the Registration Statement has been
issued and, to the best of such officer's knowledge, no proceedings for that
purpose have been initiated or threatened by the Commission.
(e) Comfort Letter. On the date hereof, the Underwriters shall have
received a letter from the Company's independent public accountants, dated as of
the date hereof and in form and substance satisfactory to the Underwriters,
containing statements and information of a type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Registration Statement and the Prospectus; and, if financial
statements for any assets, business or entity acquired by the Company are
included or incorporated by reference in the Registration Statement or the
Prospectus, the Underwriters shall have received a similar "comfort letter" from
a firm of independent public accountants, dated as of the date hereof and in
form and substance satisfactory to the Underwriters, with respect to such
financial statements and any financial information with respect to such assets,
business or entity, as the case may be, contained or incorporated by reference
in the Registration Statement and the Prospectus. Without limitation to the
foregoing, the letter delivered by the Company's independent public
accountants shall state that nothing has come to their attention that caused
them to believe that at a specified date not more than five days prior to the
date of such letter, there was any change in the outstanding
18
capital stock of the Company or any increase in consolidated long-term debt of
the Company or any decrease in the stockholders' equity of the Company, in each
case as compared with the amounts shown on the most recent consolidated balance
sheet of the Company incorporated by reference in the Registration Statement and
Prospectus or, during the period from the date of such balance sheet to a
specified date not more than five days prior to the date of such letter, there
were any decreases, as compared with the corresponding period in the preceding
year, in consolidated net sales and operating revenues or net income of the
Company, except in each such case as set forth in or contemplated by the
Registration Statement and Prospectus or except for such exceptions enumerated
in such letter as shall have been agreed to by the Underwriters and the Company.
(f) Subsequent Delivery of Comfort Letter. At the Closing Time, the
Underwriters shall have received from each firm of independent public
accountants which delivered a letter pursuant to subsection (e) of this Section,
a letter, dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not more
than five days prior to the Closing Time.
(g) Other Documents. At the Closing Time, counsel for the Underwriters
shall have been furnished with resolutions of the Company's Board of Directors
authorizing and approving the issuance and sale of the Notes and matters related
thereto and such other documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Notes as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained.
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by any of
the Underwriters by notice to the Company at any time at or prior to the Closing
Time, and any such termination shall be without liability of any party to any
other party, except as provided in Section 5, and except that the indemnity and
contribution agreements set forth in Sections 7 and 8 hereof and the provisions
of Section 9 hereof shall remain in effect.
Section 7. Indemnification.
19
(a) Indemnification of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel chosen by the
Underwriters), as incurred, insofar as such loss, liability, claim, damage
or expense arises out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arises out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel chosen by the
Underwriters), as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever, insofar as such loss, liability, claim, damage or expense
arises out of any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever (including, subject to
the limitations set forth in subsection (c) below, the reasonable fees and
disbursements of counsel chosen by the Underwriters), as incurred,
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever, based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission;
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense (A) to the extent arising out of or based upon any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon the
20
Form T-1 under the 1939 Act filed as an exhibit to the Registration Statement;
or (B) to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission in the Prospectus, if such untrue statement or
alleged untrue statement or omission or alleged omission is corrected in an
amendment or supplement to the Prospectus and if, having previously been
furnished by or on behalf of the Company with copies of the Prospectus, as so
amended or supplemented, such Underwriter thereafter failed to deliver such
Prospectus, as so amended or supplemented, prior to or concurrently with the
sale of a Note or Notes to the person asserting such loss, liability, claim,
damage or expense who purchased such Note or Notes that are the subject thereof
from such Underwriter; or (C) as to which such Underwriter may be required to
indemnify the Company pursuant to the provisions of subsection (b) of this
Section 7; or (D) if such loss, liability, claim, damage or expense is covered
by any other written agreement between the Company and such Underwriter
pertaining to the sale of the Notes pursuant to which such Underwriter may be
required to indemnify the Company for such loss, liability, claim, damage or
expense.
(b) Indemnification of the Company. Each Underwriter agrees, severally
and not jointly, to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 7, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any such Underwriter expressly for use in the Registration Statement
or the Prospectus.
(c) General. (i) In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought against
any Underwriter or any person controlling such Underwriter, based upon the
Registration Statement or the Prospectus and with respect to which indemnity may
be sought against the Company pursuant to this Section 7, such Underwriter or
controlling person shall promptly notify the Company in writing, and the Company
shall assume the defense thereof, including the employment of counsel and
payment of all expenses. Any such Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and expenses
of such separate counsel shall be at the expense of such Underwriter or such
controlling person, unless (A) the employ-
21
ment of such counsel shall have been specifically authorized in writing by the
Company, (B) the Company shall have failed to assume the defense and employ
counsel or (C) the named parties to any such action, suit or proceeding
(including any impleaded parties) shall include both such Underwriter or such
controlling person and the Company, and such Underwriter or such controlling
person shall have been advised by such counsel that there may be one or more
legal defenses available to it that are different from, or additional to, those
available to the Company (in which case, if such Underwriter or such controlling
person notifies the Company in writing that it elects to employ separate counsel
at the expense of the Company, the Company shall not have the right to assume
the defense of such action, suit or proceeding on behalf of such Underwriter or
such controlling person, it being understood, however, that the Company shall
not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all such Underwriters and such controlling persons, which firm
shall be designated in writing by a majority of all such Underwriters, on behalf
of all of such Underwriters and such controlling persons).
(ii) In case any action, suit or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought against the Company,
any of the Company's directors or officers, or any person controlling the
Company, with respect to which indemnity may be sought against any Underwriter
pursuant to this Section 7, such Underwriter shall have the rights and duties
given to the Company by subsection (c)(i) of this Section 7, and the Company,
the Company's directors and officers and any such controlling person shall have
the rights and duties given to the Underwriters by subsection (c)(i) of this
Section 7.
Section 8. Contribution.
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 7 hereof is for any reason
held to be unenforceable by the indemnified parties, although applicable in
accordance with its terms, the Company and each Underwriter shall contribute
to the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Company and the
Underwriters, as incurred, (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company, on the one hand, and each of the
Underwriters, on the other hand, from the offering of the Notes or (ii) if the
allocation provided by clause
22
(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 (i)
above but also the relative fault of the Company, on the one hand, and of the
Underwriters, on the other hand, in connection with the statements or omissions
that resulted in such losses, liabilities, claims, damages and expenses. The
relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, shall be deemed to be in the same proportions
as the total net proceeds from the sale of the Notes (before deducting expenses)
received by the Company, on the one hand, and the total underwriting discounts
and commissions received by each Underwriter, on the other hand, bear to the
total price to public of the Notes as set forth in the table on the cover page
of the Prospectus. The relative fault of the Company, on the one hand, and the
Underwriters, 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 or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective numbers of Notes they have purchased hereunder, and not joint.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed by the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as such Underwriter, and each director of
the Company, each officer of the Company who signed the Registration Statement
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
Any party entitled to contribution hereunder will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section 8, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribtion may be sought from
any other obligation it or they may have otherwise than under this Section 8.
23
Section 9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
or contained in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Notes.
Section 10. Termination.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time if (i) between the date
hereof and the Closing Date, there shall have been any material adverse change
in the consolidated financial condition of the Company and its subsidiaries,
taken as a whole, (ii) there shall have occurred any material adverse change in
the financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis, the effect of
which shall be such as to make it, in the reasonable judgment of the
Underwriters, impracticable to market or to enforce contracts for sale of the
Notes or other debt securities, (iii) trading in any securities of the Company
shall have been suspended by the Commission or a national securities exchange in
the United States, or if trading generally on the New York Stock Exchange shall
have been suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required, by
said exchange or by order of the Commission or any other governmental authority,
or if a banking moratorium shall have been declared by either Federal or New
York authorities, (iv) any of Standard & Poor's Corporation, Xxxxx'x Investors
Service, Inc., Duff & Xxxxxx Inc. and Fitch IBCA, Inc. (or any of their
respective successors) shall have publicly announced that it has (A) placed the
Notes or the Company's unsecured senior long term debt generally on what is
commonly termed a "watch list" for possible downgrading or (B) downgraded the
Notes or the Company's unsecured senior long term debt generally, or (v) the
Company shall have failed to furnish or cause to be furnished the certificates,
opinions or letters referred to in Section 6 hereof.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 5.
24
Section 11. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at Closing Time to purchase
the Notes which it or they are obligated to purchase under this Agreement (the
"Defaulted Notes"), the non-defaulting Underwriters shall have the right, within
24 hours thereafter, to make arrangements for one or more of such non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Notes in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, such non-defaulting Underwriters shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of the Notes, the non-
defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Notes exceeds 10%
of the aggregate principal amount of the Notes, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting Underwriter
from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the non-defaulting Underwriters or the Company shall have
the right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
Section 12. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to
them c/o . Notices to the Company shall be directed to it at 00000
Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, attention of Vice President
and Treasurer.
25
Section 13. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 7 and 8 hereof and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provisions herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
Section 14. Governing Law.
This Agreement and the rights and obligations of the parties created hereby
shall be governed by and construed in accordance with the laws of the State of
New York, including without limitation, (S) 5-1401 of the New York General
Obligations Law.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
Occidental Petroleum Corporation
By
_______________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date
first above written:
[Underwriters]
26
SCHEDULE A
Name of Underwriter Notes
---------------------------------------------- ---------
$
---------
Total..................................... $
=========
27
