EXHIBIT 1
2,500,000 SHARES
CHIEFTAIN INTERNATIONAL, INC.
COMMON SHARES
UNDERWRITING AGREEMENT
November 10, 1999
CIBC WORLD MARKETS CORP.
XXXX XXXXXXXX INCORPORATED
X.X. XXXXXXX & SONS, INC.
c/o CIBC World Markets Corp.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several
Underwriters named on
Schedule I attached hereto.
Ladies and Gentlemen:
Chieftain International, Inc., a corporation organized under the laws
of the Province of Alberta, Canada (the "Company"), proposes, subject to the
terms and conditions contained herein, to sell to you and the other underwriters
named on Schedule I to this Agreement (the "Underwriters"), for whom you are
acting as Representatives (the "Representatives"), an aggregate of 2,500,000
common shares (the "Firm Shares"), no par value (the "Common Shares"), of the
Company. All of the Firm Shares are to be issued and sold by the Company. The
respective amounts of the Firm Shares to be purchased by each of the several
Underwriters are set forth opposite their names on Schedule I hereto. In
addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional 375,000 Common Shares (the "Option Shares") from it
solely for the purpose of covering over-allotments in connection with the sale
of the Firm Shares. The Firm Shares and the Option Shares are together called
the "Shares."
1. SALE AND PURCHASE OF THE SHARES.
On the basis of the representations, warranties and agreements
contained in, and subject to the terms and conditions of, this Agreement:
(a) The Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company, at a price of $17.50 per share (the "Initial Price"), the number
of Firm Shares set forth opposite the name of such Underwriter under the
column "Number of Firm Shares to be Purchased" on Schedule I to this
Agreement, subject to adjustment in accordance with Section 10 hereof.
(b) The Company grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares
at the Initial Price. The number of Option Shares to be purchased by each
Underwriter shall be the same percentage (adjusted by the Representatives
to eliminate fractions) of the total number of Option Shares to be
purchased by the Underwriters as such Underwriter is purchasing of the Firm
Shares. Such option may be exercised only to cover over-allotments in the
sales of the Firm Shares by the Underwriters and may be exercised in whole
or in part at any time on or before 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date (as defined below), and
from time to time thereafter within 30 days after the date of this
Agreement, in each case upon written, facsimile or telegraphic notice, or
verbal or telephonic notice confirmed by written, facsimile or telegraphic
notice, by the Representatives to the Company no later than 12:00 noon, New
York City time, on the business day before the Firm Shares Closing Date or
at least two business days before the Option Shares Closing Date (as
defined below), as the case may be, setting forth the number of Option
Shares to be purchased and the time and date (if other than the Firm Shares
Closing Date) of such purchase.
(c) In consideration of the services to be rendered by the
Underwriters in connection with the distribution of the Shares, the Company
agrees to pay to the Underwriters a fee equal to $0.96 per Share (the
"Underwriting Commission") on the Firm Shares Closing Date (as defined in
Section 2) with respect to each Firm Share and on any Option Shares Closing
Date (as defined in Section 2) with respect to each Option Share.
2. DELIVERY AND PAYMENT. The Shares to be purchased by the
Underwriters pursuant to the terms of this Agreement will be represented by
one or more share certificates. Delivery by the Company of the Firm Shares to
the Representatives for the respective accounts of the Underwriters, and
payment of the purchase price therefor in United States dollars by wire
transfer of Federal Funds or similar same day funds to an account designated
in writing by the Company to CIBC World Markets Corp. at least one business
day prior to the Firm Shares Closing Date (as defined below) and payment of
the related Underwriting Commission in United States dollars by wire transfer
of Federal Funds or similar same day funds to an account designated in
writing by CIBC World Markets Corp. at least one business day prior to the
Firm Shares Closing Date to the Company, shall take place at the offices of
Cravath, Swaine & Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 10:00 a.m., New York City time, on the third (fourth, if
pricing is after 4:30 p.m. Eastern time) trading day following the date of
this Agreement, or at such time on such other date, not later than 10
business days after the date of this Agreement, as shall be
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agreed upon by the Company and the Representatives (such time and date of
delivery and payment is called the "Firm Shares Closing Date").
In the event the option with respect to the Option Shares is exercised
in whole or in part on one or more occasions, delivery by the Company of the
Option Shares to the Representatives for the respective accounts of the
Underwriters and payment of the purchase price therefor in United States dollars
by wire transfer of Federal Funds or similar same day funds to an account
designated in writing by the Company to CIBC World Markets Corp. at least one
business day prior to the Option Shares Closing Date (as defined below) and
payment of the related Underwriting Commission in United States dollars by wire
transfer of Federal Funds or similar same day funds to an account designated in
writing by CIBC World Markets Corp. to the Company at least one business day
prior to the Option Shares Closing Date shall take place at the offices of
Cravath, Swaine & Xxxxx specified above at the time and on the date (which may
be the same date as, but in no event shall be earlier than, the Firm Shares
Closing Date) specified in the notice referred to in Section 1(b) (each such
time and date of delivery and payment is called an "Option Shares Closing
Date"). The Firm Shares Closing Date and any Option Shares Closing Date are
called, individually, a "Closing Date" and, together, the "Closing Dates."
The certificates evidencing the Shares shall be registered in such
names and shall be in such denominations as the Representatives shall request at
least two full business days before the Firm Shares Closing Date or the Option
Shares Closing Date, as applicable, and shall be made available to the
Representatives for checking and packaging, at such place as is designated by
the Representatives, on the full business day before the Firm Shares Closing
Date (or the Option Shares Closing Date in the case of the Option Shares).
3. REGISTRATION STATEMENT AND PROSPECTUS; PUBLIC OFFERING IN THE
UNITED STATES. The Company has prepared and filed in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the published rules and regulations thereunder (the "Rules")
adopted by the Securities and Exchange Commission (the "Commission") a
Registration Statement (as hereinafter defined) on Form S-3 (No. 333-88661)
and pre-effective Amendment No. 1 thereto for the registration of certain of
the Company's securities including the Shares, and the offering thereof from
time to time in accordance with Rule 415 of the Rules, and the Company has
filed such post-effective amendments thereto as may be required to the date
of this Agreement in order to effect the registration and the offering of the
Shares. Such Registration Statement has been declared effective by the
Commission. Copies of such Registration Statement (including all amendments
thereof) have heretofore been delivered by the Company to you. Promptly after
execution and delivery of this Agreement, the Company will prepare and file a
prospectus supplement in accordance with paragraph (b) of Rule 424 ("Rule
424(b)") of the Rules. The information included in a prospectus supplement
filed in respect of such registration statement pursuant to Rule 424(b) is
referred to as "Rule 424(b) Information." The term "Preliminary Prospectus"
means any prospectus or prospectus supplement that omitted the Rule 424(b)
Information that was used after the Registration Statement became effective
and prior to the date of this Agreement. The term "Registration Statement" as
used in this Agreement means the registration
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statement (including all exhibits, financial schedules, information and
documents deemed to be a part of the Registration Statement through
incorporation by reference) as amended at the time and on the date it became
effective (the "Effective Date") including the Rule 424(b) Information. The
term "Prospectus" as used in this Agreement means the final prospectus and
the final prospectus supplement relating to the Shares (including the
information and documents deemed to be a part of the prospectus by
incorporation by reference or otherwise) in the form filed with the
Commission pursuant to Rule 424(b) of the Rules. For purposes of this
Agreement, all references to the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
All references in this Agreement to financial statements and schedules
and other information that is "contained," "included" or "stated" in the
Registration Statement, any Preliminary Prospectus or the Prospectus or other
references of like import, shall be deemed to mean and include all such
financial statements, schedules and other information that is incorporated by
reference in the Registration Statement, any Preliminary Prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") that is incorporated by reference in the Registration Statement,
such Preliminary Prospectus or the Prospectus, as the case may be.
The Company understands that the Underwriters propose to make a public
offering of the Shares in the United States, as set forth in and pursuant to the
Prospectus, as soon after the date of this Agreement as the Representatives deem
advisable. The Company hereby confirms that the Underwriters and dealers have
been authorized to distribute or cause to be distributed each Preliminary
Prospectus and are authorized to distribute the Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments or supplements
thereto to the Underwriters).
4. REPRESENTATIONS AND WARRANTIES.
A. The Company hereby represents and warrants to each Underwriter as
follows:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act. The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are threatened by the Commission, and any request
on the part of the Commission for additional information has been complied
with. Each Preliminary Prospectus and Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424(b) of the Rules, complied or will
comply when so filed in all material
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respects with the Rules and each Preliminary Prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering of
the Shares will, at the time of such delivery, be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T of the
Rules.
(b) As of the Effective Date, as of the date of the Prospectus and as
of each Closing Date, the Registration Statement complied or will comply in
all material respects with the applicable provisions of the Securities Act
and the Rules and did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and as of the date of the Prospectus and as of each Closing
Date neither the Prospectus, nor any amendment thereof or supplement
thereto, contained or will contain any untrue statement of a material fact
or omitted or will omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading. When any related Preliminary Prospectus was
first filed with the Commission and when any amendment thereof or
supplement thereto was first filed with the Commission, such Preliminary
Prospectus as amended or supplemented did not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading. Notwithstanding the foregoing, none of the representations and
warranties in this paragraph 4A(b) shall apply to statements in, or
omissions from, the Registration Statement, the Preliminary Prospectus or
the Prospectus made in reliance upon, and in conformity with, information
herein or otherwise furnished in writing by the Representatives on behalf
of the several Underwriters for use in the Registration Statement, the
Preliminary Prospectus or the Prospectus. With respect to the preceding
sentence, the Company acknowledges that the only information furnished in
writing by the Representatives on behalf of the several Underwriters for
use in the Registration Statement, the Preliminary Prospectus and the
Prospectus are (i) the paragraph regarding selling concessions and
reallowances, except for the first sentence thereof, (ii) the information
regarding stabilization, and (iii) the paragraph regarding transactions by
the Company with affiliates of CIBC World Markets Corp., all of which are
set forth in the sections captioned "Underwriting" that appear in each of
the Registration Statement, the Preliminary Prospectus and the Prospectus.
(c) The documents incorporated by reference in the Registration
Statement and the Prospectus, at the time they became effective or were
filed with the Commission, as the case may be, complied in all material
respects with the requirements of the Securities Act or the Exchange Act,
as applicable, and the rules and regulations thereunder, and when read
together with the other information in the Registration Statement and the
Prospectus, do not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading.
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(d) The consolidated financial statements of the Company and its
subsidiaries (including all notes and schedules thereto) included or
incorporated by reference in the Registration Statement and Prospectus
present fairly the financial position, the results of operations, the
statements of cash flows and the statements of shareholders' equity and the
other information purported to be shown therein of the Company and its
subsidiaries at the respective dates and for the respective periods to
which they apply; and, except as may otherwise be disclosed therein or in
the Prospectus, such financial statements have been prepared in conformity
with Canadian generally accepted accounting principles, consistently
applied throughout the periods involved, and, with respect to the unaudited
financial statements, all adjustments necessary for a fair presentation of
the results for such periods have been made. The summary and selected
financial data included in the Prospectus present fairly the information
shown therein as at the respective dates and for the respective periods
specified and the summary and selected financial data have been presented
on a basis consistent with the consolidated financial statements so set
forth in the Prospectus and other financial information. The
reconciliations to United States generally accepted accounting principles
contained in the notes to the financial statements of the Company included
or incorporated by reference in the Registration Statement and Prospectus
comply with the requirements of Item 18 of Form 20-F promulgated by the
Commission.
(e) PricewaterhouseCoopers LLP, whose reports are filed with the
Commission as a part of the Registration Statement, are and, during the
periods covered by their reports, were independent public accountants as
required by the Securities Act and the Rules.
(f) The Company is a corporation duly organized, validly subsisting
and qualified to do business under the laws of the Province of Alberta,
Canada. Each of the Subsidiaries (as hereinafter defined) is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. The Company and each subsidiary or other
entity controlled directly or indirectly by the Company (collectively,
"Subsidiaries") is duly qualified to do business and is in good standing as
a foreign corporation in each jurisdiction in which the nature of the
business conducted by it or location of the assets or properties owned,
leased or licensed by it requires such qualification, except for such
jurisdictions where the failure to so qualify would not have a material
adverse effect on the assets or properties, business, prospects, results of
operations or financial condition of the Company and the Subsidiaries taken
as whole (a "Material Adverse Effect"). Each of the Company and its
Subsidiaries has all requisite corporate power and capacity, and all
necessary authorizations, approvals, consents, orders, licenses,
certificates and permits of and from all governmental or regulatory bodies
or any other person or entity (collectively, the "Permits"), to own, lease
and license its assets and properties and conduct its business, all of
which are valid and in full force and effect, as described in the
Registration Statement and the Prospectus, except where the lack of such
Permits, individually or in the aggregate, would not have a Material
Adverse Effect. Each of the Company and its Subsidiaries has fulfilled and
performed in all material respects all
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of its material obligations with respect to such Permits and no event has
occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or would result in any other material
impairment of the rights of the Company thereunder. Except as may be
required under the Securities Act and state and foreign securities laws
(including Canadian provincial securities laws), no other Permits are
required to enter into, deliver and perform this Agreement and to issue and
sell the Shares.
(g) Each of the Company and its Subsidiaries owns or possesses
adequate and enforceable rights to use all trademarks, trademark
applications, trade names, service marks, copyrights, copyright
applications, licenses, know-how and other similar rights and proprietary
knowledge (collectively, "Intangibles") described in the Prospectus as
being owned by it necessary for the conduct of its business, except for
those Intangibles which, if not so owned or possessed, would not have a
Material Adverse Effect. Neither the Company nor any of the Subsidiaries
has received any notice of, or is aware of, any infringement of or conflict
with asserted rights of others with respect to any Intangibles, except for
those infringements or conflicts that would not have a Material Adverse
Effect.
(h) Neither the Company nor any of its Subsidiaries owns any real
property (other than oil and gas properties). Each of the Company and its
Subsidiaries has good and marketable title to all personal property
described in the Prospectus as being owned by it. Any real property and
buildings described in the Prospectus as being held under lease by the
Company or any Subsidiary are held by it or such Subsidiary under valid,
existing and enforceable leases, free and clear of all liens, encumbrances,
claims, security interests and defects, except such as are described in the
Registration Statement and the Prospectus or would not have a Material
Adverse Effect. Each of the Company and its Subsidiaries has good and
defensible title to their oil and gas properties free and clear of all
liens, encumbrances and defects, except (a) those described in the
Registration Statement and the Prospectus, (b) liens securing taxes and
other governmental charges, or claims of materialmen, mechanics and similar
persons, not yet due and payable, (c) liens and encumbrances under
operating agreements, unitization and pooling agreements, and gas sales
contracts, securing payment of amounts not yet due and payable and of a
scope and nature customary in the oil and gas industry and (d) liens,
encumbrances and defects that do not in the aggregate materially affect the
value of such oil and gas properties or materially interfere with the use
made or proposed to be made of such properties by the Company and the
Subsidiaries. The oil, gas and mineral leases, options to lease, drilling
concessions or other property interests therein held by the Company and
Subsidiaries are valid, subsisting and enforceable and reflect in all
material respects the right of the Company and the Subsidiaries, as the
case may be, to explore or receive production from the undeveloped
properties described in the Registration Statement and the Prospectus,
and the care taken by the Company and the Subsidiaries with respect to
acquiring or otherwise procuring such leases, options to lease, drilling
concessions and other property interests was generally consistent with
standard industry practices for acquiring or procuring leases and interests
therein to explore such for hydrocarbons. All other leases and subleases of
the
7
Company and the Subsidiaries and under which the Company or any of the
Subsidiaries holds properties described in the Registration Statement and
the Prospectus are in full force and effect, except for such leases and
subleases that, if not in full force and effect, would not have a Material
Adverse Effect. Neither the Company nor any of the Subsidiaries has actual
notice of any claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any Subsidiary under any of such leases or
subleases, or affecting or questioning the rights of the Company or any
such Subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease, except for such claims that
would not have a Material Adverse Effect.
(i) There is no litigation or governmental proceeding to which the
Company or the Subsidiaries is subject or which is pending or, to the
knowledge of the Company, threatened, against the Company or any of the
Subsidiaries, which, individually or in the aggregate, might have a
Material Adverse Effect, affect the consummation of this Agreement or which
is required to be disclosed in the Registration Statement and the
Prospectus that is not so disclosed.
(j) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as described
therein, (a) there has not been any material adverse change with regard to
the assets or properties, business, results of operations or financial
condition of the Company or the Subsidiaries; (b) neither the Company nor
the Subsidiaries has sustained any loss or interference with its assets,
businesses or properties (whether owned or leased) from fire, explosion,
earthquake, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or any court or legislative or other governmental
action, order or decree which would have a Material Adverse Effect; (c)
since the date of the latest balance sheet included in the Registration
Statement and the Prospectus, except as reflected therein, neither the
Company nor any of the Subsidiaries has (i) issued any securities or
incurred any liability or obligation, direct or contingent, for borrowed
money, except such liabilities or obligations incurred in the ordinary
course of business, or (ii) entered into any transaction not in the
ordinary course of business; and (d) the Company has not declared or paid
any dividend or made any distribution on any of its shares or redeemed,
purchased or otherwise acquired or agreed to redeem, purchase or otherwise
acquire any of its shares except pursuant to its share repurchase plan
which expired on November 1, 1999.
(k) There is no document, contract or other agreement of a character
required to be described in the Registration Statement or Prospectus or to
be filed as an exhibit to the Registration Statement which is not described
or filed as required by the Securities Act or Rules. Each description of a
contract, document or other agreement in the Registration Statement and the
Prospectus accurately reflects in all material respects the terms of the
underlying document, contract or agreement. Neither the Company nor any
Subsidiary, if a Subsidiary is a party, nor, to the knowledge of the
Company, any other party is in default in the observance or performance of
any term or obligation to be performed by it under any
8
such agreement, and no event has occurred which with notice or lapse of
time or both would constitute such a default, in any such case which
default or event, individually or in the aggregate, would have a Material
Adverse Effect. No default exists, and no event has occurred which with
notice or lapse of time or both would constitute a default, in the due
performance and observance of any term, covenant or condition, by the
Company or any Subsidiary, if a Subsidiary is a party thereto, of any other
agreement or instrument to which the Company or any Subsidiary is a party
or by which it or any Subsidiary or their properties or business may be
bound or affected which default or event, individually or in the aggregate,
would have a Material Adverse Effect.
(l) Neither the Company nor any of the Subsidiaries is in violation of
any term or provision of its articles or by-laws or of any franchise,
license, permit, judgment, decree, order, statute, rule or regulation,
where the consequences of such violation, individually or in the aggregate,
would have a Material Adverse Effect.
(m) Neither the execution, delivery and performance of this Agreement
by the Company nor the consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and sale by the Company
of the Shares) will give rise to a right to terminate or accelerate the due
date of any payment due under, or conflict with or result in the breach of
any term or provision of, or constitute a default (or an event which with
notice or lapse of time or both would constitute a default) under, or
require any consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any properties or assets
of the Company or the Subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which the Company or
any of the Subsidiaries or any of their properties or businesses is bound,
or any franchise, license, permit, judgment, decree, order, statute, rule
or regulation applicable to the Company or any of the Subsidiaries or
violate any provision of the articles or by-laws of the Company or any of
the Subsidiaries, except for such consents or waivers which have already
been obtained and are in full force and effect.
(n) The Company has authorized and outstanding share capital as set
forth under the caption "Capitalization" in the Prospectus. The
certificates evidencing the Shares are in proper legal form and have been
duly authorized for issuance by the Company. All of the issued and
outstanding Common Shares have been duly and validly issued and are fully
paid and nonassessable. Except as disclosed in the Prospectus, there are no
statutory preemptive or other similar rights to subscribe for or to
purchase or acquire any Common Shares of the Company or the Subsidiaries or
any such rights pursuant to its articles or by-laws or any agreement or
instrument to or by which the Company or any of the Subsidiaries is a party
or bound. The Shares, when issued and sold pursuant to this Agreement, (i)
will be duly and validly issued, fully paid and nonassessable and none of
them will be issued in violation of any preemptive or other similar right
and (ii) will be issued with an associated common share purchase right
under the Company's Shareholder Rights Plan
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described in the Prospectus. Except (1) as disclosed in the Registration
Statement and the Prospectus and (2) for employee share options
issued after September 30, 1999 pursuant to the share option plans
of the Company described in the Registration Statement and the Prospectus,
there is no outstanding option, warrant or other right calling for the
issuance of, and there is no commitment, plan or arrangement to issue, any
shares of the Company or the Subsidiaries or any security convertible into,
or exercisable or exchangeable for, such shares. The Common Shares and the
Shares conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus. All outstanding
shares of each Subsidiary have been duly authorized and validly issued, and
are fully paid and nonassessable and all common shares of each Subsidiary
are owned directly by the Company or by another wholly-owned subsidiary of
the Company free and clear of any security interests, liens, encumbrances,
equities or claims, other than those described in the Prospectus.
(o) No holder of any security of the Company has the right to have any
security owned by such holder included in the Registration Statement or to
demand registration of any security owned by such holder.
(p) All necessary corporate action has been duly and validly taken by
the Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares by the Company. This
Agreement has been duly and validly authorized, executed and delivered by
the Company.
(q) Neither the Company nor any of the Subsidiaries is involved in any
labor dispute nor, to the knowledge of the Company, is any such dispute
threatened, which dispute would have a Material Adverse Effect. The Company
is not aware of any existing or imminent labor disturbance by the employees
of any of the principal suppliers or contractors of the Company or the
Subsidiaries that would have a Material Adverse Effect.
(r) No transaction has occurred between or among the Company and any
of its officers or directors or five percent shareholders or any affiliate
or affiliates of any such officer or director or five percent shareholders
that is required to be described in and is not described in the
Registration Statement and the Prospectus.
(s) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of
the Common Shares to facilitate the sale or resale of any of the Shares.
(t) The Company and the Subsidiaries have filed all federal, state,
local and foreign tax returns which are required to be filed through the
date hereof, or have received extensions thereof, and have paid all taxes
shown on such returns and all assessments
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received by them to the extent that the same are material and have become
due. There are no tax audits pending or, to the knowledge of the Company,
any investigations pending, which if adversely determined would have a
Material Adverse Effect. To the knowledge of the Company, there are no
material proposed additional tax assessments against the Company or any of
the Subsidiaries.
(u) The Shares have been duly authorized for quotation on the American
Stock Exchange, subject to official notice of issuance, and the Shares have
been conditionally approved for listing on The Toronto Stock Exchange,
subject to customary requirements. Registration statements have been filed
with respect to the Common Shares and the associated common share purchase
rights issued pursuant to the Company's Shareholder Rights Plan on Form 8-A
pursuant to Section 12 of the Exchange Act, which registration statements
comply in all material respects with the Exchange Act.
(v) The books, records and accounts of the Company and the
Subsidiaries accurately and fairly reflect, in reasonable detail, the
transactions in, and dispositions of, the assets of, and the results of
operations of, the Company and the Subsidiaries. The Company and each of
the Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or
specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(w) The Company and the Subsidiaries are insured in accordance with
industry standards against such losses and risks and in such amounts as are
customary in the businesses in which they are engaged; all policies of
insurance and fidelity or surety bonds insuring the Company or any of the
Subsidiaries or the Company's or the Subsidiaries' respective businesses,
assets, employees, officers and directors are in full force and effect; the
Company and each of the Subsidiaries are in compliance with the terms of
such policies and instruments in all material respects; and neither the
Company nor any Subsidiary has reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect.
(x) Each approval, consent, order, authorization, designation,
declaration or filing of, by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and
delivery by the Company of this Agreement and the consummation of the
transactions herein contemplated required to be obtained or performed by
the Company (except such additional steps as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") or may be
necessary to
11
qualify the Shares for public offering in the United States by the
Underwriters under state or foreign securities laws, including Canadian
provincial securities laws) has been obtained or made and is in full force
and effect.
(z) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws (as hereinafter defined) on the
business, operations and properties of the Company and its subsidiaries. In
the course of this review, the Company identifies and evaluates associated
costs and liabilities, including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or approval, any
related constraints on operating activities and any potential liabilities
to third parties). On the basis of such review, and except as described in
the Registration Statement and Prospectus and except to the extent that
would not have a Material Adverse Effect (i) each of the Company and its
Subsidiaries is in compliance in all material respects with all rules, laws
and regulation relating to the use, treatment, storage and disposal of
toxic substances and protection of health or the environment
("Environmental Laws") that are applicable to its business; (ii) neither
the Company nor any of the Subsidiaries has received any notice from any
governmental authority or third party of an asserted claim under
Environmental Laws; (iii) each of the Company and the Subsidiaries has
received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and is in compliance
with all terms and conditions of any such permit, license or approval; (iv)
to the knowledge of the Company, no facts currently exist that will require
the Company or the Subsidiaries to make future material capital
expenditures to comply with Environmental Laws; (v) no property that is or
has been owned, leased or occupied by the Company or any of the
Subsidiaries has been designated as a Superfund site pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Section 9601, et. seq.) ("CERCLA 1980") or
otherwise designated as a contaminated site under applicable state or local
law; and (vi) the Company has reasonably concluded that there are no
unanticipated associated costs and liabilities which would, singly or in
the aggregate, have a Material Adverse Effect.. To the knowledge of the
Company, neither the Company nor any of the Subsidiaries has been named as
a "potentially responsible party" under CERCLA 1980.
(aa) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of proceeds thereof as described in
the Prospectus, will not be an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(bb) Except to the extent that would not have a Material Adverse
Effect, none of the Company, the Subsidiaries or any other person
associated with or acting on behalf of the Company or the Subsidiaries
including, without limitation, any director, officer, agent or employee of
the Company or the Subsidiaries has, directly or indirectly, while acting
on behalf of the Company or any of the Subsidiaries (i) used any corporate
funds for unlawful
12
contributions, gifts, entertainment or other unlawful expenses
relating to political activity; (ii) made any unlawful payment to foreign
or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds; (iii) violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended, to the
extent such statute is applicable to the Company or any of its
Subsidiaries; or (iv) made any other unlawful payment.
(cc) The Company has reviewed its operations and those of the
Subsidiaries to evaluate the extent to which the business or operations of
the Company or any of its Subsidiaries will be affected by any significant
risk that computer hardware or software applications used by the Company
and its Subsidiaries will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as in
the case of dates or time periods occurring prior to January 1, 2000 (the
"Year 2000 Problem"); as a result of such review, the Company has no reason
to believe, and does not believe, that (A) there are any issues related to
the Company's preparedness to address the Year 2000 Problem that are of a
character required to be described or referred to in the Registration
Statement or Prospectus that have not been accurately described in the
Registration Statement or Prospectus and (B) the Year 2000 Problem will
have a Material Adverse Effect, or result in any material loss or
interference with the business or operations of the Company and its
subsidiaries, taken as a whole.
(dd) Netherland, Xxxxxx & Associates, Inc., who prepared estimates of
the extent and value of the U.S. proved oil and natural gas reserves of the
Company and the Subsidiaries, are independent with respect to the Company
and the Subsidiaries. The information supplied by the Company to
Netherland, Xxxxxx & Associates, Inc. for purposes of preparing the reserve
reports and estimates of such engineers included in the Registration
Statement and the Prospectus, including, without limitation, production,
costs of operation and development, current prices for production,
agreements relating to current and future operations and sales of
production, was true and correct in all material respects on the date
supplied and was prepared by the Company in accordance with customary
industry practices.
B. Each of the Underwriters, severally and not jointly, hereby
represents and warrants to the Company that such Underwriter understands
and acknowledges that the Shares have not been and will not be qualified
for public distribution under the securities laws of Canada or any province
or territory of Canada and that the Shares may not be offered or sold,
directly or indirectly, in Canada in violation of the securities laws of
Canada or any province or territory of Canada.
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each
of the following terms and conditions:
13
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 6(a)(i) of this Agreement.
(b) No order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus shall have been or shall be in effect and no
order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission; no order having the effect of ceasing or
suspending the distribution of the Shares shall have been issued and no
proceedings for such purpose shall have been initiated or threatened by the
Commission or any securities regulatory authority in Canada; and any
requests for additional information on the part of the Commission (to be
included in the Registration Statement or the Prospectus or otherwise)
shall have been complied with.
(c) The representations and warranties of the Company contained in
this Agreement and in the certificates delivered pursuant to Section 5(d)
shall be true and correct when made and on and as of each Closing Date as
if made on such date. The Company shall have performed all covenants and
agreements and satisfied all the conditions contained in this Agreement
required to be performed or satisfied by it on or before such Closing Date.
(d) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date,
of the chief executive or chief operating officer and the chief financial
officer or chief accounting officer of the Company to the effect that (i)
the signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement, (ii) the representations and
warranties of the Company in this Agreement are true and correct on and as
of such Closing Date with the same effect as if made on such Closing Date
and the Company has performed all covenants and agreements and satisfied
all conditions contained in this Agreement required to be performed or
satisfied by it at or prior to such Closing Date, (iii) no stop order
suspending the effectiveness of the Registration Statement has been issued
and to the best of their knowledge, no proceedings for that purpose have
been instituted or are pending under the Securities Act, and (iv) no order
having the effect of ceasing or suspending the distribution of the Shares
has been issued by any securities regulatory authority in Canada and to the
best of its knowledge, no proceedings for that purpose have been instituted
or are pending.
(e) The Representatives shall have received, at the time this
Agreement is executed and on each Closing Date, a signed letter from
PricewaterhouseCoopers LLP, addressed to the Representatives and dated,
respectively, the date of this Agreement and each such Closing Date, in
form and substance reasonably satisfactory to the Representatives.
14
(f) The Representatives shall have received on each Closing Date from
Cravath, Swaine & Xxxxx, U.S. counsel for the Company, an opinion,
addressed to the Representatives and dated such Closing Date, and stating
in effect that:
(i) No consent, approval, authorization or order of any court or
governmental agency or regulatory body is required under United States
federal or New York laws for the execution, delivery or performance of
this Agreement by the Company or the consummation of the transactions
contemplated hereby or thereby, except such as have been obtained
under the Securities Act and such as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the several Underwriters.
(ii) Accurate copies of all contracts and other documents
required to be filed as exhibits to, or described in, the Registration
Statement have been so filed with the Commission or are fairly
described in the Registration Statement, as the case may be.
(iii) The Registration Statement is effective under the
Securities Act, and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of such counsel, are
threatened, pending or contemplated. Any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424(b) under
the Securities Act has been made in the manner and within the time
period required by such Rule 424(b).
(iv) The Shares have been approved for listing on the American
Stock Exchange.
(v) The Company is not an "investment company" or an entity
controlled by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(vi) The information set forth in the Prospectus under the
caption "Certain Income Tax Considerations - United States Federal
Income Tax Considerations" to the extent that it constitutes matters
of law or legal conclusions has been reviewed by such counsel and is
correct in all material respects and the opinion of such counsel set
forth therein is confirmed.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company and
public officials.
In addition, such counsel shall state that such counsel has
participated in conferences with certain officers of, and with the accountants
and Canadian counsel for,
15
the Company concerning the preparation of the Registration Statement and the
Prospectus and, although such counsel cannot and does not assume responsibility
for the accuracy or completeness of the statements made in the Registration
Statement and Prospectus, except insofar as such statements relate to such
counsel, on the basis of the foregoing, such counsel's work in connection with
the Registration Statement and the Prospectus did not disclose any information
that gave such counsel reason to believe that: (i) the Registration Statement,
at the time the Registration Statement became effective, or the Prospectus, as
of its issue date or as of the Closing Date (in each case except for the
financial statements and other information of an accounting or financial nature
included therein, or information relating to oil and gas reserves and future net
cash flows and other information derived therefrom, as to which such counsel
need not express any view), was not appropriately responsive in all material
respects to the requirements of the Securities Act and the Rules, (ii) the
documents incorporated by reference in the Registration Statement and the
Prospectus, as of the dates they became effective or were filed with the
Commission, as the case may be (in each case except for the financial statements
and other information of an accounting or financial nature included therein, or
information relating to oil and gas reserves and future net cash flows and other
information derived therefrom, as to which such counsel need not express any
view), were not appropriately responsive in all material respects to the
requirements of the Exchange Act and the rules promulgated thereunder, and (iii)
the Registration Statement, at the time the Registration Statement became
effective, 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, as of its issue date
and at the Closing Date, included or includes 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 (in each case except for the financial statements and other
information of an accounting or financial nature included therein, or
information relating to oil and gas reserves and future net cash flows and other
information derived therefrom, as to which such counsel need not express any
view).
(g) The Representatives shall have received on each Closing Date from
Xxxxxxx Xxxxx, Canadian counsel for the Company, an opinion, addressed to the
Representatives and dated such Closing Date, and stating in effect that:
(i) The Company is a corporation duly organized, validly
subsisting and qualified to do business under the laws of the Province
of Alberta, Canada. Each of the Subsidiaries has been duly organized
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. The Company and each of the
Subsidiaries is duly qualified and in good standing as a foreign
corporation in each jurisdiction in which the character or location of
its assets or properties (owned, leased or licensed) or the nature of
its businesses makes such qualification necessary, except for such
jurisdictions where the failure to so qualify, individually or in
the aggregate, would not have a Material Adverse Effect.
16
(ii) Each of the Company and its Subsidiaries has all requisite
corporate power and capacity to own, lease and license its assets and
properties and conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus, and with
respect to the Company, to enter into, deliver and perform this
Agreement. The Company has all requisite corporate power and capacity
to issue and sell the Shares.
(iii) The Company has authorized and issued share capital as set
forth in the Registration Statement and the Prospectus under the
caption "Capitalization"; the certificates evidencing the Shares are
in proper legal form and have been duly authorized for issuance by the
Company; all of the outstanding Common Shares have been duly and
validly authorized and issued and are fully paid and nonassessable and
none of them was issued in violation of any preemptive or other
similar right. The Shares when issued and sold pursuant to this
Agreement will be duly and validly issued, outstanding, fully paid and
nonassessable and none of them will have been issued in violation of
any preemptive or other similar right. To the best of such counsel's
knowledge, except as disclosed in the Registration Statement and the
Prospectus, there are no preemptive or other rights to subscribe for
or to purchase or any restriction upon the voting or transfer of any
securities of the Company pursuant to the Company's Articles of
Incorporation or by-laws or other governing documents or any
agreements or other instruments to which the Company is a party or by
which it is bound. To the best of such counsel's knowledge, except as
disclosed in the Registration Statement and the Prospectus, there is
no outstanding option, warrant or other right calling for the issuance
of, and no commitment, plan or arrangement to issue, any shares of the
Company or any security convertible into, exercisable for, or
exchangeable for any Common Shares or preferred shares of the Company.
The Common Shares and the Shares conform in all material respects to
the descriptions thereof contained in the Registration Statement and
the Prospectus. The issued and outstanding shares of capital stock of
each of the Company's Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and all common shares
of each of the Subsidiaries are owned directly by the Company or by
another wholly owned subsidiary of the Company, free and clear of any
perfected security interest or, to the knowledge of such counsel, any
other security interests, liens, encumbrances, equities or claims,
other than those contained in the Registration Statement and the
Prospectus.
(iv) Each of the Lock-Up Agreements as set forth in Section 5(i)
has been duly and validly executed by such persons and constitutes the
legal, valid and binding obligation of each such person enforceable
against each such person in accordance with its terms, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
17
affecting the enforcement of creditors' rights generally and by
general equitable principles.
(v) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and
performance of this Agreement and the issuance and sale of the Shares.
This Agreement has been duly and validly authorized, executed and
delivered by the Company. This Agreement constitutes the legal, valid
and binding obligation of the Company enforceable against the Company
in accordance with its terms except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles and except to the extent that the rights to indemnity and
contribution provided for in this Agreement may be limited by
applicable law or the public policy underlying such law.
(vi) Neither the execution, delivery or performance of this
Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation, the
issuance and sale by the Company of the Shares) will, to the best of
such counsel's knowledge, give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with or
result in the breach of any term or provision of, or constitute a
default (or any event which with notice or lapse of time, or both,
would constitute a default) under, or require consent or waiver under,
or result in the execution or imposition of any lien, charge, claim,
security interest or encumbrance upon any properties or assets of the
Company or any Subsidiary pursuant to the terms of any indenture,
mortgage, deed trust, note or other agreement or instrument of which
such counsel is aware and to which the Company or any Subsidiary is a
party or by which either the Company or any Subsidiary or any of its
properties or businesses is bound, or any franchise, license, permit,
judgment, decree, order, statute, rule or regulation of which such
counsel is aware or violate any provision of the articles or by-laws
of the Company or any Subsidiary.
(vii) To the best of such counsel's knowledge, no default exists,
and no event has occurred which with notice or lapse of time, or both,
would constitute a default, in the due performance and observance of
any term, covenant or condition by the Company or any Subsidiary of
any indenture, mortgage, deed of trust, note or any other agreement or
instrument to which the Company or any Subsidiary is a party or by
which it or any of its assets or properties or businesses may be bound
or affected, where the consequences of such default, individually or
in the aggregate, would have a Material Adverse Effect.
(viii) To the best of such counsel's knowledge, neither the
Company nor any of the Subsidiaries is in violation of any term or
provision of its articles or
18
by-laws or any franchise, license, permit, judgment, decree,
order, statute, rule or regulation, where the consequences of such
violation, individually or in the aggregate, would have a Material
Adverse Effect.
(ix) All necessary consents, approvals, authorizations and orders
have been obtained under the securities laws of the Province of
Alberta to permit the Shares to be issued, sold and delivered to the
Underwriters and offered, sold and delivered by the Underwriters to
purchasers in the United States pursuant to the Prospectus, and no
other consent, approval, authorization, filing with or order of any
Canadian federal or Province of Alberta court or governmental agency
or body is required for the execution, delivery or performance of this
Agreement by the Company or the issuance, sale or delivery of the
Shares to the Underwriters or the offering, sale or delivery of the
Shares by the Underwriters to purchasers in the United States pursuant
to the Prospectus.
(x) To the best of such counsel's knowledge, there is no
litigation or governmental or other proceeding or investigation,
before any court or before or by any public body or board pending or
threatened against, or involving the assets, properties or businesses
of, the Company or the Subsidiaries which would have a Material
Adverse Effect.
(xi) The statements in the Prospectus under the captions
"Description of Share Capital," "Description of Debt Securities,"
"Description of Warrants," "Enforcement of Civil Liabilities,"
"Business and Properties - Litigation," "Risk Factors" and
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," insofar as such statements constitute a
summary of documents referred to therein or matters of law, are fair
summaries in all material respects and accurately present the
information called for with respect to such documents and matters.
(xii) The common share purchase rights issuable under the
Company's Shareholder Rights Plan to which holders of the Shares are
entitled have been duly authorized and will be issued and attached to
the Shares when such Shares are sold and issued in accordance with
this Agreement without further action by the Company.
(xiii) The Shares have been conditionally approved for listing on
The Toronto Stock Exchange.
(xiv) The share capital of the Company conforms in all material
respects to the description thereof contained in the Prospectus under
the caption "Description of Share Capital."
19
(xv) The opinion of Xxxxxxx Xxxxx set forth in the Prospectus
under the caption "Certain Income Tax Considerations - Certain
Canadian Federal Income Tax Considerations" has been reviewed by such
counsel and is confirmed.
The opinion of such counsel shall also contain such opinions relating
to conflicts of laws and enforceability of judgments in respect of the
Underwriting Agreement as the Representatives may reasonably request.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company and
public officials and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the laws of
Canada and the provinces of Alberta and Ontario; provided that such counsel
shall state that in their opinion the Underwriters and they are justified in
relying on such other opinions. Copies of such certificates and other opinions
shall be furnished to the Representatives and counsel for the Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, U.S. counsel for the Company, representatives of the Representatives
and representatives of the independent public accountants of the Company, at
which conferences the contents of the Registration Statement and the Prospectus
and related matters were discussed and, although such counsel is not passing
upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus (except as specified in the foregoing opinion), on the basis of the
foregoing, no facts have come to the attention of such counsel which lead such
counsel to believe that the Registration Statement at the time it became
effective (except with respect to the financial statements and other information
of an accounting or financial nature included therein, or information relating
to oil and gas reserves and future net cash flows and other information derived
therefrom, as to which such counsel need express no belief) contained any 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 as amended or supplemented (except with respect to the
financial statements and other information of an accounting or financial nature
included therein, or information relating to oil and gas reserves and future net
cash flows and other information derived therefrom, as to which such counsel
need make no statement) as of its date or as of the Closing Date contained or
contains any 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.
(h) All actions taken in connection with the sale of the Firm Shares
and the Option Shares as herein contemplated shall be reasonably satisfactory in
form and substance to the Representatives and their counsel and the Underwriters
shall have received from Xxxxxxx & Xxxxx L.L.P. a favorable opinion, addressed
to the Representatives and
20
dated such Closing Date, with respect to the Shares, the Registration
Statement and the Prospectus, and such other related matters, as the
Representatives may reasonably request, and the Company shall have furnished
to Xxxxxxx & Xxxxx L.L.P. such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
(i) The Representatives shall have received a copy of the lock-up
agreement in the form attached to this Agreement (the "Lock-Up Agreement"),
dated as of the date hereof, executed by each of Xxxxx X. Xxxxxxxx, Xxxxxxx X.
Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxx, Xxxxxx X. Ondrack, Xxxxx X. Xxxxx, S.
Xxx Xxxxxx, Xxxxxx X. Stefure, Xxxx X. Xxxxx, Xxxx X. Xxxxxx, Xxxxx X. Xxxxx and
Xxxxxx X. Xxxxxx.
(j) The Representatives shall have received, at the time this
Agreement is executed and on each Closing Date, a signed letter from Netherland,
Xxxxxx & Associates, Inc., addressed to the Representatives and dated,
respectively, the date of this Agreement and each such Closing Date, in form and
substance reasonably satisfactory to the Representatives.
(k) The Company shall have furnished or caused to be furnished to the
Representatives such further certificates or documents as the Representatives
shall have reasonably requested.
6. COVENANTS.
(a) The Company covenants and agrees as follows:
(i) The Company shall prepare the Prospectus in a form reasonably
approved by the Representatives and file such Prospectus pursuant to
Rule 424(b) under the Securities Act not later than the Commission's
close of business on the second business day following the execution
and delivery of this Agreement, or, if applicable, such earlier time
as may be required under the Securities Act.
(ii) The Company shall promptly advise the Representatives in
writing (i) when any post-effective amendment to the Registration
Statement shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or the
Prospectus or for any additional information, (iii) of the prevention
or suspension of the use of any Preliminary Prospectus or the
Prospectus or of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding known to the Company for
that purpose, (iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for
sale in any jurisdiction or the initiation or threatening of any
proceeding known to the Company for such purpose, and (v) of the
issuance by any securities regulatory authority in Canada or any
stock exchange of any order having
21
the effect of ceasing or suspending the trading in the Common Shares,
or the initiation or threatening of any proceeding known to the
Company for such purpose. The Company shall not file any amendment to
the Registration Statement or supplement to the Prospectus unless the
Company has furnished the Representatives with a copy for their review
prior to filing and shall not file any such proposed amendment or
supplement to which the Representatives reasonably object. The Company
shall use its best efforts to prevent the issuance of any stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
(iii) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act and the Rules, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Securities Act or the Rules, the Company
promptly shall prepare and file with the Commission, subject to the
second sentence of paragraph (ii) of this Section 6(a), an amendment
or supplement which shall correct such statement or omission or an
amendment which shall effect such compliance.
(iv) The Company shall make generally available to its security
holders and to the Representatives as soon as practicable, but not
later than 45 days after the end of the 12-month period beginning at
the end of the fiscal quarter of the Company during which the
Effective Date occurs (or 90 days if such 12-month period coincides
with the Company's fiscal year), an earnings statement (which need not
be audited) of the Company, covering such 12-month period, which shall
satisfy the provisions of Section 11(a) of the Securities Act or Rule
158 of the Rules.
(v) The Company shall furnish to the Representatives and counsel
for the Underwriters, without charge, conformed copies of the
Registration Statement (including all exhibits thereto and amendments
thereof) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and all amendments thereof and,
so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Securities Act or the Rules, as many copies of any
Preliminary Prospectus and the Prospectus and any amendments thereof
and supplements thereto as the Representatives may reasonably request.
(vi) The Company shall cooperate with the Representatives and
their counsel in endeavoring to qualify the Shares for offer and sale
in connection with the offering under the laws of such jurisdictions
in the United States as the Representatives may designate and shall
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided, however, that the
22
Company shall not be required in connection therewith, as a condition
thereof, to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction or subject itself
to taxation as doing business in any jurisdiction.
(vii) Without the prior written consent of CIBC World Markets
Corp., for a period of 90 days after the date of this Agreement, the
Company shall not issue, sell or register with the Commission (other
than on Form S-8 or on any successor form), or otherwise dispose of,
directly or indirectly, any equity securities of the Company (or any
securities convertible into, exercisable for or exchangeable for
equity securities of the Company), except for (1) the issuance of the
Shares pursuant to the Registration Statement, (2) the granting of
options pursuant to the Company's existing share option plan or bonus
plan as described in the Registration Statement and the Prospectus
(provided that such options shall not be exercisable within such
90-day period), (3) the issuance of Common Shares pursuant to the
exercise of existing options granted under the Company's share option
plan and (4) the issuance of shares pursuant to the exercise of
conversion rights attached to outstanding preferred shares issued by
Chieftain International Funding Corp.
(viii) On or before completion of this offering, the Company
shall make all filings required under applicable securities laws and
by the American Stock Exchange and The Toronto Stock Exchange.
(ix) The Company will apply the net proceeds from the offering of
the Shares in a manner consistent with the disclosure under "Use of
Proceeds" in the Prospectus.
(b) Each of the Underwriters covenants and agrees, severally and not
jointly, as follows:
(i) It will not offer or sell the Shares, directly or
indirectly, in Canada in violation of the securities laws of
Canada or any province or territory of Canada.
(ii) It will not offer or sell the Shares, directly or
indirectly, within Canada except pursuant to prospectus exemptions
under the applicable securities laws of Canada or any province or
territory of Canada.
(iii) It will obtain the agreement of any selling group members
to comply with the foregoing provisions of this Section 6(b).
Notwithstanding the foregoing provisions of this Section 6(b), no
Underwriter shall be liable to the Company pursuant to this Section 6(b) as
a result of the violation by another Underwriter or selling group member of
this Section 6(b) if the former Underwriter is not itself in violation.
23
(c) The Representatives will give prompt written notice to the Company
when, in the opinion of the Representatives, the Underwriters have
completed distribution of the Shares.
(d) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses
incident to the public offering in the United States and the previously
proposed private placement of the Shares in Canada and the performance of
the obligations of the Company under this Agreement including those
relating to: (i) the preparation, printing, filing and distribution of the
Registration Statement including all exhibits thereto, each Preliminary
Prospectus, the Prospectus, the preliminary Canadian offering memorandum
dated October 21, 1999 prepared in connection with the previously proposed
private placement of the Shares in Canada (the "Preliminary Canadian
Offering Memorandum"), amendments and supplements to the Registration
Statement and the Prospectus; (ii) the preparation and delivery of
certificates for the Shares to the Underwriters; (iii) the registration or
qualification of the Shares for offer and sale under the state securities
laws of the various jurisdictions referred to in Section 6(a)(vi); (iv) the
furnishing (including costs of shipping and mailing) to the Representatives
and to the Underwriters of copies of each Preliminary Prospectus, the
Prospectus, the Preliminary Canadian Offering Memorandum and all amendments
or supplements thereto, as may be reasonably requested for use in
connection with the offering and sale of the Shares by the Underwriters or
by dealers to whom Shares may be sold; (v) inclusion of the Shares for
quotation or listing on the American Stock Exchange and The Toronto Stock
Exchange; and (vi) all transfer taxes, if any, with respect to the sale and
delivery of the Shares by the Company to the Underwriters. Subject to the
provisions of Section 9, the Underwriters agree to pay, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of the
obligations of the Underwriters under this Agreement not payable by the
Company pursuant to the preceding sentence, including, without limitation,
the fees and disbursements of counsel for the Underwriters.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its affiliates and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all losses, claims,
damages and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or
any claim asserted), to which they, or any of them, may become subject
under the Securities Act, the Exchange Act or other federal or state law
or regulation, under the Canadian securities laws, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
24
Prospectus, the Registration Statement, the Prospectus or the Preliminary
Canadian Offering Memorandum or any amendment thereof or supplement
thereto, or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided,
however, that such indemnity shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) on account of any
losses, claims, damages or liabilities arising from the sale of the Shares
to any person by such Underwriter if such untrue statement or omission or
alleged untrue statement or omission was made in such Preliminary
Prospectus, the Registration Statement, the Preliminary Canadian Offering
Memorandum or the Prospectus, or such amendment or supplement thereto in
reliance upon and in conformity with information furnished in writing
to the Company by the Representatives on behalf of any Underwriter
specifically for use therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its affiliates and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, each director of the Company, and each
officer of the Company who signs the Registration Statement, to the same
extent as the foregoing indemnity as set forth in Section 7(a) hereof from
the Company to each Underwriter, but only insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue statement
or omission or alleged untrue statement or omission which was made in any
Preliminary Prospectus, the Registration Statement, the Preliminary
Canadian Offering Memorandum or the Prospectus, or any amendment thereof or
supplement thereto contained in (i) the paragraph regarding selling
concessions and reallowances, except for the first sentence thereof, (ii)
the stabilization information, and (iii) the paragraph regarding
transactions by the Company with affiliates of CIBC World Markets Corp.,
all of which are set forth under the sections captioned "Underwriting" that
appear in each of the Registration Statement, the Preliminary Prospectus,
the Prospectus and the Preliminary Canadian Offering Memorandum; provided,
however, that the obligation of each Underwriter to indemnify the Company
(including any controlling person, director or officer thereof) shall be
limited to the net proceeds received by the Company from such Underwriter.
(c) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 7(a) or 7(b) shall be available
to any party who shall fail to give notice as provided in this Section
7(c) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was prejudiced by
the failure to give such notice but the omission so to notify such
indemnifying party of any such action, suit or proceeding shall not
relieve it from any
25
liability that it may have to any indemnified party for contribution or
otherwise than under this Section. In case any such action, suit or
proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof and the approval by the indemnified party of such
counsel, the indemnifying party shall not be liable to such indemnified
party for any legal or other expenses, except as provided below and except
for the reasonable costs of investigation subsequently incurred by such
indemnified party in connection with the defense thereof. The indemnified
party shall have the right to employ its counsel in any such action, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel by such indemnified
party has been authorized in writing by the indemnifying parties, (ii) the
indemnified party shall have been advised by counsel that there may be one
or more legal defenses available to it which are different from or in
addition to those available to the indemnifying party (in which case the
indemnifying parties shall not have the right to direct the defense of
such action on behalf of the indemnified party) or (iii) the indemnifying
parties shall not have employed counsel to assume the defense of such
action within a reasonable time after notice of the commencement thereof,
in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying parties. An indemnifying party shall not be
liable for any settlement of any action, suit, proceeding or claim
effected without its written consent, which consent shall not be
unreasonably withheld or delayed.
8. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 7(a) or 7(b) is due in accordance with its terms but for any reason
is held to be unavailable to or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(b), then each indemnifying party shall
contribute to the aggregate losses, claims, damages and liabilities
(including any investigation, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting any contribution
received by any person entitled hereunder to contribution from any person who
may be liable for contribution) to which the indemnified party may be subject
in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other
from the offering of the Shares or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in Section 7
hereof, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company on the
one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Underwriters shall be
deemed to be in the same proportion as (x) the total proceeds from the
offering (net of underwriting discounts but before deducting expenses)
received by the Company, as
26
set forth in the table on the cover page of the Prospectus, bear to (y) the
Underwriting Commissions received by the Underwriters, as set forth in the
table on the cover page of the Prospectus. The relative fault of the Company
or the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact related to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 8, (i) in
no case shall any Underwriter (except as may be provided in the Agreement
Among Underwriters) be liable or responsible for any amount in excess of the
Underwriting Commissions applicable to the Shares purchased by such
Underwriter hereunder; and (ii) the Company shall be liable and responsible
for any amount in excess of such Underwriting Commissions; provided, however,
that 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. For
purposes of this Section 8, each affiliate of an Underwriter, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each person, if any, who
controls the Company within the meaning of the Section 15 of the Securities
Act or Section 20(a) of the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each
case to clauses (i) and (ii) of the immediately preceding sentence of this
Section 8. Any party entitled to contribution 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, notify such party or parties from whom
contribution may be sought, but the omission so to notify such party or
parties from whom contribution may be sought shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this Section. No party shall
be liable for contribution with respect to any action, suit, proceeding or
claim settled without its written consent, which consent shall not be
unreasonably withheld or delayed. The Underwriters' obligations to contribute
pursuant to this Section 8 are several in proportion to their respective
underwriting commitments and not joint.
9. TERMINATION. This Agreement may be terminated with respect to the
Shares to be purchased on a Closing Date by the Representatives by notifying the
Company at any time:
(a) in the absolute discretion of the Representatives at or before any
Closing Date: (i) if on or prior to such date, any domestic or
international event, act or occurrence has materially disrupted, or in the
opinion of the Representatives will in the future materially disrupt, the
securities markets and such event, act or occurrence makes it in the
judgment of the Representatives, inadvisable to proceed with the offering;
(ii) if there has occurred any new outbreak or material escalation of
hostilities or other calamity or crisis
27
the effect of which on the financial markets of the United States or
Canada is such as to make it, in the judgment of the Representatives,
inadvisable to proceed with the offering; (iii) if there shall be such
a material adverse change in general financial, political or economic
conditions or the effect of international conditions on the financial
markets in the United States or Canada is such as to make it, in the
judgment of the Representatives, inadvisable or impracticable to market
the Shares; (iv) if trading in the Shares has been suspended by the
Commission or any securities commission in Canada or trading generally
on the New York Stock Exchange, Inc., The Toronto Stock Exchange, the
American Stock Exchange, Inc. or the Nasdaq National Market has been
suspended or limited, or minimum or maximum ranges for prices for
securities shall have been fixed, or maximum ranges for prices for
securities have been required, by said exchanges or by order of the
Commission or any securities commission in Canada, the National Association
of Securities Dealers, Inc., or any other governmental or regulatory
authority; (v) if a banking moratorium has been declared by any state or
Federal or Canadian authority; or (vi) if, in the judgment of the
Representatives, there has occurred a Material Adverse Effect, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as required
by this Agreement.
If this Agreement is terminated pursuant to any of its provisions, the
Company shall not be under any liability to any Underwriter, and no Underwriter
shall be under any liability to the Company, except that (y) if this Agreement
is terminated by the Representatives or the Underwriters because of any failure,
refusal or inability on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) incurred by them in connection with the proposed
purchase and sale of the Shares or in contemplation of performing their
obligations hereunder and (z) no Underwriter who shall have failed or refused to
purchase the Shares agreed to be purchased by it under this Agreement, without
some reason sufficient hereunder to justify cancellation or termination of its
obligations under this Agreement, shall be relieved of liability to the Company
or to the other Underwriters for damages occasioned by its failure or refusal.
10. SUBSTITUTION OF UNDERWRITERS. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under Section 9) to purchase on
any Closing Date the Shares agreed to be purchased on such Closing Date by
such Underwriter or Underwriters, the Representatives may find one or more
substitute underwriters to purchase such Shares or make such other
arrangements as the Representatives may deem advisable or one or more of the
remaining Underwriters may agree to purchase such Shares in such proportions
as may be approved by the Representatives, in each case upon the terms set
forth in this Agreement. If no such arrangements have been made by the close
of business on the business day following such Closing Date,
28
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then
each of the nondefaulting Underwriters shall be obligated to purchase such
Shares on the terms herein set forth in proportion to their respective
obligations hereunder; provided, that in no event shall the maximum number
of Shares that any Underwriter has agreed to purchase pursuant to Section 1
be increased pursuant to this Section 10 by more than one-ninth of such
number of Shares without the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to one additional business day within which it
may, but is not obligated to, find one or more substitute underwriters
reasonably satisfactory to the Representatives to purchase such Shares upon
the terms set forth in this Agreement.
In any such case, either the Representatives or the Company shall have
the right to postpone the applicable Closing Date for a period of not more than
five business days in order that necessary changes and arrangements (including
any necessary amendments or supplements to the Registration Statement or
Prospectus) may be effected by the Representatives and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Company shall make arrangements pursuant to
this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company and without liability
on the part of the Company, except in both cases as provided in Sections 6(d),
7, 8 and 9. The provisions of this Section 10 shall not in any way affect the
liability of any defaulting Underwriter to the Company or the nondefaulting
Underwriters arising out of such default. A substitute underwriter hereunder
shall become an Underwriter for all purposes of this Agreement.
11. JUDGMENT CURRENCY. Unless otherwise specified, references to
dollar amounts in this Agreement are to United States dollars. The Company
agrees to indemnify each Underwriter, its affiliates and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (an "Underwriter
Indemnitee") against any loss incurred by an Underwriter Indemnitee as a
result of any judgment or order being given or made for liability hereunder
and such judgment or order being expressed and paid in a currency (the
"Judgment Currency") other than United States dollars and as a result of any
variation as between (i) the rate of exchange at which the United States
dollar amount is converted into the Judgment Currency for the purpose of such
judgment or order, and (ii) the rate of exchange at which the Underwriter
Indemnitee is able to purchase United States dollars with the amount of the
Judgment Currency actually received by the Underwriter Indemnitee. In
addition, the Underwriters, severally
29
and not jointly, agree to indemnify the Company, its affiliates and each person,
if any, who controls the Company within the meaning Section 15 of the Securities
Act or Section 20 of the Exchange Act (a "Company Indemnitee") against any loss
incurred by the Company Indemnitee as a result of any judgment or order being
given or made for liability hereunder and such judgment or order being expressed
and paid in a Judgment Currency other than United States dollars and as a result
of any variation as between (i) the rate of exchange at which the United States
dollar amount is converted into the Judgment Currency for the purpose of such
judgment or order, and (ii) the rate of exchange at which the Company Indemnitee
is able to purchase United States dollars with the amount of the Judgment
Currency actually received by the Company Indemnitee. The foregoing indemnities
of each of the Company and the Underwriters shall respectively constitute
separate and independent obligations of the Company and the Underwriters and
shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "rate of exchange" shall include any premiums and
costs of exchange payable in connection with the purchase of, or conversion
into, the relevant currency.
12. MISCELLANEOUS. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers and
of the Underwriters set forth in or made pursuant to this Agreement shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Sections 7 and 8 hereof, and shall survive
delivery of and payment for the Shares. The provisions of Sections 6(d), 7, 8, 9
and 11 shall survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters and the Company, their respective successors and assigns, and, to
the extent expressed herein, for the benefit of affiliates of and persons
controlling any of the Underwriters, or the Company, and directors and officers
of the Company, 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" shall not include any purchaser of Shares from any
Underwriter merely because of such purchase.
Unless otherwise specified, all notices and communications
hereunder shall be in writing and mailed or delivered or by telephone,
facsimile or telegraph if subsequently confirmed in writing, (a) if to the
Representatives, c/o CIBC World Markets Corp.,1600 Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, facsimile no: (000) 000-0000, Attention: Xxx Xxxxxx,
with a copy to Xxxxxxx & Xxxxx L.L.P., 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000, facsimile no: (000) 000-0000, Attention: Xxxxx X. Xxxxxx, Esq. and (b)
if to the Company, to Chieftain International, Inc. 0000 X X Xxxxx 00000-000
Xxxxxx, Xxxxxxxx, Xxxxxxx X0X 0X0 Xxxxxx, facsimile no: (780) 429- 4681, with
copies to Xxxx X. Xxxxx, Inc., 4150 Lincoln Plaza, 000 Xxxxx Xxxxx, Xxxxxx,
Xxxxx 00000, facsimile no: (000) 000-0000, and Cravath, Swaine & Xxxxx,
Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile no:
(000) 000-0000, Attention: Xxxxxx X. Xxxxx, Esq., and to Xxxxxxx Xxxxx, 0000
Xxxxxxx Xxxx Xxxx, 000-0xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx X0X 0X0 Canada,
facsimile no: (000) 000-0000, Attention: Xxxx X. Xxxxx, Q.C.
30
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflict of
laws.
Each party hereto irrevocably submits to the non-exclusive
jurisdiction of any New York state or United States federal court sitting in the
Borough of Manhattan, New York City, New York, U.S.A., and any appellate court
from any thereof (the "Specified Courts"), over any suit, action or proceeding
brought arising out of or based upon this Agreement (a "Related Proceeding").
Each party hereto waives, to the fullest extent permitted by law, any objection
to Related Proceedings in such courts whether on the grounds of venue, residence
or domicile or on the ground that the Related Proceedings have been brought in
an inconvenient forum. The Company consents to process being served in any such
suit, action or proceeding by mailing, certified mail, return receipt requested,
a copy thereof to such party at the address in effect for notices hereunder, and
agrees that such services shall constitute good and sufficient service of
process and notice thereof. Nothing in this paragraph shall affect or limit any
right to serve process in any other manner permitted by law. Notwithstanding the
foregoing, any action based on this Agreement may be instituted by the
Underwriters or by any person who controls the Underwriters in any competent
court in Canada.
This Agreement may be signed 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.
31
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
CHIEFTAIN INTERNATIONAL, INC.
By: /s/ X.X. Xxxxxx
--------------------------------------------
Name: X.X. Xxxxxx
------------------------------------------
Title: Pres & C.E.O.
-----------------------------------------
Confirmed:
CIBC WORLD MARKETS CORP.
XXXX XXXXXXXX INCORPORATED
X. X. XXXXXXX & SONS, INC.
-----------------------------------
Acting on behalf of themselves and as
representatives of the several Underwriters
named in Schedule I annexed hereto.
By: CIBC WORLD MARKETS CORP.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------
Title: Managing Director
-----------------------------
32
SCHEDULE I
Number of Firm
Shares
To Be
Name Purchased
---- ----------
CIBC World Markets Corp....................................................................... 1,062,500
Xxxx Xxxxxxxx Incorporated.................................................................... 531,250
X.X. Xxxxxxx & Sons, Inc...................................................................... 531,250
Howard, Weil, Labouisse, Xxxxxxxxxx Incorporated.............................................. 50,000
Xxxxxx Brothers Inc........................................................................... 50,000
Prudential Securities Incorporated............................................................ 50,000
Xxxxxx Xxxxxxx & Co........................................................................... 50,000
X.X. Xxxxxxxx & Co............................................................................ 25,000
Josephthal & Co. Inc.......................................................................... 25,000
Ladenburg Xxxxxxxx & Co. Inc.................................................................. 25,000
McDonald Investments Inc., a KeyCorp Company.................................................. 25,000
ScotiaMcLeod Inc.............................................................................. 25,000
Southcoast Capital L.L.C...................................................................... 25,000
Southwest Securities, Inc..................................................................... 25,000
-------------
Total 2,500,000
-------------
-------------
