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EXHIBIT 1(a)
ANADARKO PETROLEUM CORPORATION
(A DELAWARE CORPORATION)
DEBT SECURITIES
2001 UNDERWRITING AGREEMENT
(STANDARD PROVISIONS)
To the Representatives of the several Underwriters named in the respective Terms
Agreements hereinafter described.
Dear Sirs:
Anadarko Petroleum Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell its debt securities (the "Securities") in one or more
offerings on terms determined at the time of sale. The Securities will be issued
under an indenture specified in the applicable Terms Agreement (the
"Indenture"). Each issue of Securities may vary as to aggregate principal
amount, currency, maturity, interest rate or rates and timing of payments
thereof, redemption provisions, sinking fund requirements, conversion
provisions, if any, and any other variable terms which the Indenture
contemplates may be set forth in the Securities as issued from time to time.
The term "you" or "your" as used herein, unless the context otherwise
requires, shall mean such of the parties to whom this Agreement is addressed as
are named in the applicable Terms Agreement. References to this Agreement
include, where the context so requires, the applicable Terms Agreement.
Each offering of Securities will be made through one or more of you or
through an underwriting syndicate managed by one or more of you. Whenever the
Company determines to make an offering of Securities, it will enter into an
agreement (the "Terms Agreement") providing for the sale of such Securities to,
and the purchase and offering thereof by, one or more of you and such other
underwriters, if any, selected by you as have authorized you to enter into such
Terms Agreement on their behalf (the "Underwriters", which term shall include
you whether acting alone in the sale of Securities or as members of an
underwriting syndicate). The Terms Agreement relating to each offering of
Securities shall specify the principal amount of Securities to be issued,
whether such Securities are senior or subordinated debt securities, and their
terms not otherwise specified in the Indenture, the names of the Underwriters
participating in such offering (subject to substitution as provided in Section 9
hereof) and the principal amount of Securities which each Underwriter severally
agrees to purchase (collectively, the "Firm Securities"), the names of such of
you and such other Underwriters, if any, acting as co-managers in connection
with such offering, the price at which the Securities are to be purchased by the
Underwriters from the Company, the initial public offering price and the time
and place of delivery and payment. In addition, the Terms Agreement shall
specify the maximum number of Securities, if any (the "Additional Securities"),
that the Company proposes to issue and sell to the Underwriters if and to the
extent that you shall have determined to exercise, on behalf of the several
Underwriters, the right to purchase such Additional Securities. The Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between you and the Company. Each offering of Securities will be governed by
this Agreement, as supplemented by the applicable Terms Agreement, and this
Agreement and such Terms Agreement shall inure to the benefit of and be binding
upon each Underwriter participating in the offering of such Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 relating to the Securities
and the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"), and has filed such
amendments thereto as may have been required to the date hereof. Such
registration statement, as amended, has been declared effective by the
Commission, and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act"). Such registration statement, as amended,
and the prospectus relating to the sale of Securities by the Company
constituting a part thereof, including all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant to the
Securities Exchange Act of 1934 (the "1934 Act"), the 1933 Act or otherwise, are
referred to herein as the "Registration Statement" and the "Prospectus",
respectively; provided, however, that a supplement of the Prospectus
contemplated by Section 3(a) hereof (a "Prospectus Supplement") shall be deemed
to have supplemented the Prospectus only with respect to the offering of
Securities to which it relates; and provided further that the term "Prospectus"
shall not include any preliminary prospectuses.
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SECTION 1. Representations and Warranties. The Company represents and
warrants to each of you, and to each Underwriter named in a Terms Agreement as
of the date thereof (the "Representation Date"), as follows:
(a) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective and as of the
Representation Date, complied, and will comply, in all material
respects with the requirements of the 1933 Act and the rules and
regulations thereunder (the "1933 Act Regulations") and the 1939 Act,
and the rules and regulations thereunder (the "1939 Act Regulations");
the Registration Statement, at the time the Registration Statement
became effective and as of the Representation Date, did not, and will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus, at the time the
Registration Statement became effective and as of the Representation
Date, did not, and will not, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to (i) statements in
or omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter expressly for use in the
Registration Statement or Prospectus or (ii) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1) of the
Trustee under the Indenture.
(b) The documents incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the Commission,
complied, and will comply, in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto became or become
effective, and when filed under the 1934 Act, did not, and will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
are made, not misleading.
(c) The accountants who certified the financial statements
included or incorporated in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(d) The consolidated financial statements, together with
related schedules and notes, included or incorporated in the
Registration Statement and Prospectus present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and the results of their operations and the changes in their
financial position for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting
principles consistently applied during the period, except as stated
therein.
If applicable, the pro forma financial information set forth
or incorporated by reference in the Registration Statement and the
Prospectus are, in all material respects, fairly presented and prepared
on a basis consistent with the historical financial statements of the
Company and its subsidiaries, except to the extent stated therein, and
give effect to assumptions used in the preparation thereof which have
been made on a reasonable basis and in good faith.
(e) Since the respective dates as of which information is
given in the Prospectus, except as otherwise stated therein or
contemplated thereby, there has been (A) no material adverse change in
the condition, financial or otherwise, of the Company and its
subsidiaries taken as a whole and (B) no litigation or governmental
proceeding instituted or, to the knowledge of the Company, threatened
against the Company or any subsidiary which would reasonably be
expected to have any material adverse effect on the financial condition
of the Company and its subsidiaries taken as a whole.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with the corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified or licensed to do
business as a foreign corporation in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification or licensing, except to the extent
that the failure to be so qualified or licensed or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
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(g) Each significant subsidiary of the Company within the
meaning of Regulation S-X is a duly incorporated and validly existing
corporation in good standing under the laws of its jurisdiction of
incorporation with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus. Each Significant Subsidiary is duly qualified or licensed
to do business as a foreign corporation in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification or licensing, except to
the extent that the failure to be so qualified or licensed or be in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole. The issued and outstanding
common stock of each of the Significant Subsidiaries has been duly
authorized and validly issued and is fully paid and non-assessable,
except as disclosed in the Prospectus, and is owned by the Company free
and clear of any mortgages, liens or similar encumbrances.
(h) Neither the Company nor any Significant Subsidiary is in
violation of its certificate of incorporation or by-laws, and the
Company is not in default in the performance or observance of any
obligation in any indenture, mortgage, evidence of indebtedness or
similar agreement or instrument to which it is a party or by which it
or any of its properties may be bound which default would have a
material adverse effect on the Company and its subsidiaries taken as a
whole. The execution and delivery of this Agreement, the Indenture and
the Terms Agreement and the consummation of the transactions
contemplated herein and therein and the incurrence of the obligations
herein and therein set forth, have been or will be duly authorized by
all necessary corporate action and do not and will not, conflict with,
or constitute or result in a breach of or default under, the
certificate of incorporation or by-laws of the Company or except for
any such conflict, breach or default which would not have a material
adverse effect on the Company and its subsidiaries taken as a whole,
any law, order, rule, regulation or court decree or any bond,
debenture, note or other evidence of indebtedness or any material
contract, lease, license, indenture, mortgage, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or any of
their respective properties may be bound.
(i) No consent, approval, authorization, order or
qualification or registration of or with any court or governmental
agency or body is required for the consummation of the transactions
contemplated in this Agreement, except for (i) the registration of the
offer and sale of the Securities under the 1933 Act and such consents,
approvals, authorizations, orders, qualifications or registrations as
may be required under the Blue Sky or securities laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and (ii) the qualification of the
Indenture under the 1939 Act.
(j) The Company and each Significant Subsidiary possess such
valid franchises, certificates of convenience and necessity, easements,
rights-of-way, operating rights, licenses, permits, consents,
authorizations and orders of governmental political subdivisions or
regulatory authorities as, in the opinion of the Company, are
materially necessary to carry on the respective businesses of each as
described in the Prospectus, except where the failure to possess such
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) The Indenture has been duly authorized by the Company and
(assuming due authorization, execution and delivery thereof by the
Trustee) when executed and delivered by the Company will constitute a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws now or hereafter in effect
relating to creditors' rights generally and general principles of
equity whether enforcement is sought at law or in equity, and the
Indenture has been qualified under the 0000 Xxx.
(m) The Securities have been duly authorized for issuance and
sale pursuant to this Agreement (or will have been so authorized prior
to each issuance of Securities) and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and of the
Indenture against payment of the consideration therefor in accordance
with this Agreement, the Securities will be valid and binding
obligations of the Company entitled to the benefits of the Indenture;
and the Securities and the Indenture conform or will conform at the
time of their issuance or execution, as the case may be, in all
material respects to all statements relating thereto contained in the
Prospectus.
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(n) In the case of Securities convertible into Common Stock of
the Company, $0.10 par value (the "Common Stock"), the shares of Common
Stock issuable upon the conversion of the Securities have been duly
authorized and reserved for issuance and, when issued upon conversion
of such Securities in accordance with the terms of the Indenture, will
be validly issued, fully paid and non-assessable, and the issuance of
such Securities will not be subject to any preemptive or similar
rights.
SECTION 2. Purchase and Sale. The several commitments of the
Underwriters to purchase, and the obligation of the Company to sell, Securities
pursuant to any Terms Agreement shall be deemed to have been made on the basis
of the representations and warranties herein contained and shall be subject to
the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Firm Securities
to be purchased by the Underwriters shall be made at such time and place and on
such date as specified in the applicable Terms Agreement (unless postponed in
accordance with the provisions of Section 9) (each such time and date being
referred to as a "Closing Time"). Payment shall be made to the Company in
Federal or other funds immediately available in New York City or by such other
means as may be specified in the Terms Agreement against delivery to you for the
respective accounts of the Underwriters of the Firm Securities to be purchased
by them.
If so specified in the applicable Terms Agreement, the Underwriters
shall have a one-time right to purchase, severally and not jointly, up to the
number of Additional Securities set forth in the applicable Terms Agreement at
the purchase price set forth in the applicable Terms Agreement plus accrued
dividends, if any. Additional Securities may be purchased solely for the purpose
of covering over-allotments made in connection with the offering of the Firm
Securities. If any Additional Securities are to be purchased, each Underwriter
agrees, severally and not jointly, to purchase the number of Additional
Securities (subject to such adjustments to eliminate fractional shares as you
may determine) that bears the same proportion to the total number of Additional
Securities to be purchased as the number of Firm Securities set forth opposite
its name in the applicable Terms Agreement bears to the total number of Firm
Securities.
Payment of the purchase price for, and delivery of, any Additional
Securities to be purchased by the Underwriters shall be made at such time (which
may be the same as the Closing Time but shall in no event be earlier than the
Closing Time nor later than ten business days after the giving of the notice
hereinafter referred to) and place as shall be designated in a written notice
from you to the Company of your determination, on behalf of the Underwriters, to
purchase a number, specified in such notice, of Additional Securities, or at
such other time, in any event not later than 30 days after the Closing Time, as
shall be designated in writing by the Underwriters. The time and date of such
payment are hereinafter referred to as the "Option Closing Time". The notice of
the determination to exercise the option to purchase Additional Securities and
of the Option Closing Time may be given at any time within 30 days after the
date of the Terms Agreement.
Certificates evidencing the Firm Securities and Additional Securities
shall be in definitive form and registered in such names in such denominations
as you shall request in writing not less than two full business days prior to
the Closing Time or the Option Closing Time, as the case may be. The
certificates evidencing the Firm Securities and Additional Securities shall be
delivered to you at the Closing Time or the Option Closing Time, as the case may
be, for the respective accounts of the several Underwriters, with any transfer
taxes payable in connection with the transfer of the Securities to the
Underwriters duly paid, against payment of the purchase price therefor.
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SECTION 3. Covenants of the Company. The Company covenants with each of
you, and with each Underwriter participating in the applicable offering of
Securities, as follows with respect to such offering of Securities:
(a) As soon as practicable, following the execution of the
applicable Terms Agreement, the Company will prepare a Prospectus
Supplement setting forth the principal amount of Securities covered
thereby and their terms not otherwise specified in the Indenture, the
names of the Underwriters participating in the offering and the
principal amount of Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in
connection with the offering, the price at which the Securities are to
be purchased by the Underwriters from the Company, the initial public
offering price, if applicable, the selling concession and reallowance,
if any, Additional Securities information, and such other information
as you and the Company deem appropriate in connection with the offering
of the Securities. The Company will transmit copies of the Prospectus
Supplement to the Commission in compliance with Rule 424 of the 1933
Act Regulations and will furnish to the Underwriters named therein as
many copies of the Prospectus and such Prospectus Supplement as you
shall reasonably request for the purposes contemplated by the 1933 Act
or the 1933 Act Regulations.
(b) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of such Securities any
event shall occur or condition exist as a result of which it is
necessary to further amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein not misleading in the light of circumstances existing at the
time it is delivered to a purchaser or if it shall be necessary at any
time to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations the Company will, as soon as practicable,
prepare and file (if required) with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act or
otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement comply with such
requirements.
(c) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 18
months after the date of the Prospectus Supplement relating to such
Securities, earnings statements of the Company and its subsidiaries
(which need not be audited) complying with Section 11 (a) of the 1933
Act and the 1933 Act Regulations (including at the option of the
Company Rule 158).
(d) The Company, during the period when the Prospectus is
required by the 1933 Act to be delivered in connection with sales of
such Securities, will, except in the case of reports filed pursuant to
the 1934 Act, give you notice of its intention to file any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1933 Act or otherwise and will
furnish you with copies of any such amendment or supplement or other
documents proposed to be filed in a reasonable time for review by the
Underwriters in advance of filing.
(e) The Company, during the period when the Prospectus is
required by the 1933 Act to be delivered by you in connection with
sales of Securities, will notify each of you, as soon as practicable,
and confirm the notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the mailing or delivery
to the Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act, (iii) the receipt of any
comments from the Commission with respect to the Registration
Statement, the Prospectus or any Prospectus Supplement, (iv) any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information and (v) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or of the threat or initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(f) The Company will deliver to each of you, as soon as
practicable, as many conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus pursuant to Item 12 of Form
S-3 under the 0000 Xxx) as you may reasonably request and will also
deliver to you, upon your request, a conformed copy of the Registration
Statement and each amendment thereto for each of the Underwriters.
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(g) The Company will cooperate with you to qualify the
Securities for offering and sale under the applicable Blue Sky or
securities laws of such states and other jurisdictions of the United
States as you may designate, and will cooperate in maintaining such
qualifications in effect for as long as may be required for the
distribution of such Securities except that the Company shall not be
obligated to file any general consent to service or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified. In each jurisdiction in which such
Securities or the sale thereof shall have been qualified as above
provided, the Company will cooperate with you to make and file such
statements and reports in each year as may be required by the laws of
such jurisdiction. The Company will cooperate in the determination of
the eligibility for investment of the Securities under the laws of such
jurisdictions as you reasonably request.
(h) If so specified in the applicable Terms Agreement, the
Company will not, without your prior written consent, offer, sell,
contract to sell or otherwise dispose of any securities of the Company
designated in such Terms Agreement during the Lock-up Period specified
in the applicable Terms Agreement, other than (i) the Securities to be
sold hereunder; (ii) the Common Stock, if any, issuable upon conversion
of the Securities or conversion of any other existing securities
convertible into Common Stock or upon exercise of any existing options
to purchase Common Stock; (iii) options or shares of Common Stock sold
or issued pursuant to any employee benefit plan or arrangement of the
Company or any of its subsidiaries existing on the date of the
applicable Terms Agreement; and, (iv) Common Stock issuable in
connection with any acquisition.
SECTION 4. Conditions of Your Obligations. The obligations of the
Underwriters to purchase Securities pursuant to any Terms Agreement are subject
to the accuracy in all material respects of the representations and warranties
on the part of the Company herein contained as of the date of the Terms
Agreement and as of the applicable Closing Time, to the performance by the
Company in all material respects of all of its covenants and other obligations
hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
(ii) the rating assigned by any nationally recognized securities rating agency
to any debt securities of the Company as of the date of the applicable Terms
Agreement shall not have been lowered since the execution of such Terms
Agreement.
(b) At the applicable Closing Time you shall have received signed
copies of:
(1) The opinion, dated as of the applicable Closing
Time, of special counsel for the Company specified in the
Prospectus, in form and substance satisfactory to you, to the
effect that:
(i) The Company is duly incorporated and
validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) The Company has the corporate power and
corporate authority to own, lease and operate its
properties and conduct its business as described in
the Prospectus.
(iii) This Agreement and the applicable
Terms Agreement, if any, have been duly authorized,
executed and delivered by the Company.
(iv) The Indenture has been duly authorized,
executed and delivered by the Company and, assuming
due authorization, execution and delivery by the
Trustee, is a valid and legally binding agreement,
enforceable against the Company in accordance with
its terms, except as (i) may be limited by
bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of
acceleration and availability of equitable remedies
may be limited by equitable principles of general
applicability.
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(v) The specimen of the Securities covered
by the applicable Terms Agreement and examined by
such counsel is in the form contemplated by the
Indenture; the Securities covered by the applicable
Terms Agreement have been duly authorized and, when
issued and authenticated in accordance with the terms
of the Indenture and delivered against payment of the
consideration therefore in accordance with this
Agreement, will be valid and binding obligations of
the Company entitled to the benefits of the
Indenture.
(vi) In the case of Securities convertible
into Common Stock, the shares of Common Stock
issuable upon the conversion of the Securities have
been reserved for issuance and, when issued upon
conversion of such Securities in accordance with the
terms of the Indenture, will be duly authorized,
validly issued, fully paid and non-assessable, and
the issuance of such Conversion Shares will not, to
the best of such counsel's knowledge, be subject to
any preemptive or similar rights.
(vii) The Indenture has been duly qualified
under the 1939 Act.
(viii) The Registration Statement is
effective under the 1933 Act and, to the best of
their knowledge, no stop order suspending the
effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(ix) No regulatory consent, authorization,
approval or filing is required by the laws of the
United States or of any state thereof for the
issuance, sale and delivery by the Company to the
Underwriters of the Securities covered by the
applicable Terms Agreement except such as have been
obtained or made under the 1933 Act, the 1934 Act,
the 1939 Act and other applicable legislation
specified in such opinion and such as may be required
under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities
by you.
(x) The execution and delivery of this
Agreement, any applicable Terms Agreement and the
Indenture, the issuance of Securities covered by the
applicable Terms Agreement, the incurrence of the
obligations set forth herein and therein, and the
consummation of the transactions herein and therein
contemplated do not and will not conflict with or
constitute or result in a breach of, or default
under, the certificate of incorporation or by-laws,
each as in effect at the applicable Closing Time, of
the Company.
(xi) (A) Such counsel is of the opinion that
the Registration Statement and the Prospectus and any
supplements or amendments thereto (except for
financial statements or other financial or
statistical data contained therein as to which such
counsel need not express any opinion) comply as to
form in all material respects with the 1933 Act and
the 1933 Act Regulations; and (B) nothing which has
come to the attention of such counsel has caused them
to believe that the Registration Statement at the
time of the applicable Terms Agreement (except for
financial statements or other financial or
statistical data contained therein as to which such
counsel need not express any belief and except for
that part of the Registration Statement that
constitutes the Form T-1 hereinafter referred to)
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, if applicable, contains any
untrue statement of a material fact or omits to state
a material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading.
With respect to subparagraph (xi) above, such counsel may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but are without
independent check or verification except as specified.
In rendering the foregoing opinion or opinions, such counsel shall
opine only as to the Federal laws of the United States, the laws of the State of
New York and the General Corporation Law of the State of Delaware. Such counsel
may also state that
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they have relied as to certain matters on information obtained from public
officials, officers of the Company and other sources believed by them to be
responsible. In rendering the foregoing opinion, special counsel for the Company
shall have received and may rely upon such certificates and other documents and
information as they may reasonably request to pass upon such matters.
(2) The opinion or opinions, dated as of the
applicable Closing Time, of the General Counsel or Associate
General Counsel of the Company, in form and substance
satisfactory to you, to the effect that:
(i) The Company and each Significant
Subsidiary is duly qualified or licensed to do
business as a foreign corporation in good standing in
each jurisdiction in which the conduct of its
business or its ownership or leasing of property
requires such qualification or licensing, except to
the extent that the failure to be so qualified or
licensed or be in good standing would not have a
material adverse effect on the Company and its
subsidiaries taken as a whole.
(ii) Each Significant Subsidiary has been
duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation with full corporate
power and authority to own, lease and operate its
properties and conduct its business as described in
the Registration Statement.
(iii) The issued and outstanding common
stock of each Significant Subsidiary has been duly
authorized and validly issued and is fully paid and
non-assessable; and the Company owns the issued and
outstanding common stock of each Significant
Subsidiary free and clear of any mortgages, liens or
similar encumbrances.
(iv) In the case of Securities convertible
into Common Stock, any Rights issuable upon the
conversion of the Securities are duly authorized and,
when issued, will be validly issued and will conform
to the description thereof contained in the
Prospectus.
(v) To the knowledge of such counsel, the
execution and delivery of this Agreement, any
applicable Terms Agreement, the Indenture, the
issuance of the Securities, the incurrence of the
obligations set forth herein and therein and the
consummation of the transactions herein and therein
contemplated do not and will not conflict with or
constitute or result in a breach of, or default
under, (a) any judgment, order or decree of any
domestic government, governmental instrumentality or
court having jurisdiction over the Company, any
Significant Subsidiary, or any of their property,
which is material to such corporations, taken as a
whole or (b) any provision of any indenture, mortgage
or similar agreement or instrument known to such
counsel to which the Company or any Significant
Subsidiary is a party or by which they or any
material part of their property is bound except for
such conflicts, breaches or defaults as would not
have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(vi) No regulatory consent, authorization,
approval or filing is required by the laws of the
State of Texas or, to the best of his knowledge, any
other state for the issuance, sale and delivery by
the Company to the Underwriters of the Securities
covered by the applicable Terms Agreement except such
as have been obtained or made under the 1933 Act, the
1934 Act, the 1939 Act and other applicable
legislation specified in such opinion and such as may
be required under state securities or Blue Sky laws
in connection with the purchase and distribution of
the Securities by you.
(vii) Such counsel does not know of any
litigation or any governmental proceeding instituted
or threatened against the Company or any Significant
Subsidiary which would be required to be disclosed in
the Prospectus and which is not disclosed.
(viii) (A) Such counsel is of the opinion
that the Registration Statement and the Prospectus
and any supplements or amendments thereto (except for
financial statements or other financial natural
resource reserve, or statistical data contained
therein as to which such counsel need not express any
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opinion) comply as to form in all material respects
with the 1933 Act and the 1933 Act Regulations and
the documents incorporated by reference therein
complied as to form in all material respects when
filed with the 1934 Act and the 1934 Act Regulations;
and (B) nothing which has come to the attention of
such counsel in the course of his representation of
the Company has caused him to believe that any part
of the Registration Statement at the time of the
applicable Terms Agreement (except for financial
statements or other financial natural resource
reserve, or statistical data contained therein as to
which such counsel need not express any belief and
except for that part of the Registration Statement
that constitutes the Form T-1 hereinafter referred
to) 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 and the Prospectus, as amended
or supplemented, if applicable, does not contain any
untrue statement of a material fact or omit to state
a material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading.
With respect to subparagraph (viii) above, such counsel may state that
he does not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement and Prospectus except
for those made under the captions "Description of Capital Stock, Rights
Agreement and Restated Certificate of Incorporation," "Description of Debt
Securities" and "Description of Offered Debt Securities" (or similar caption)
insofar as they relate to provisions of documents therein described.
In rendering the foregoing opinion or opinions, such counsel shall
opine only as to matters governed by the Federal laws of the United States, the
laws of the State of Texas and the General Corporation Law of the State of
Delaware. Such counsel may also state that he has relied as to certain matters
on information obtained from public officials, officers of the Company and other
sources believed by him to be responsible.
(3) The opinion or opinions, dated as of the
applicable Closing Time, of counsel for the Underwriters
specified in the Prospectus, with respect to the validity of
the Securities, the Registration Statement, the Prospectus and
other related matters as you reasonably may request. In
rendering the foregoing opinion, such counsel may rely, to the
extent recited therein, as to matters involving the laws of
any jurisdiction other than the States of Delaware and New
York, upon opinions of local counsel. Such counsel may also
state that they have relied as to certain matters on
information obtained from public officials, officers of the
Company and other sources believed by them to be responsible.
(c) At the applicable Closing Time, there shall not have
occurred, since the date of the applicable Terms Agreement,
any material adverse change or any development likely to result in a
prospective material adverse change in the financial condition, or in
the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus
and you shall have received a certificate of the Chairman of the Board,
President or a Vice President of the Company, dated as of such Closing
Time, that to the best of his knowledge after reasonable investigation,
there has been no such material adverse change or development involving
such a prospective material adverse change, the representations and
warranties of the Company contained in Section 1 are true and correct
in all material respects with the same force and effect as though
expressly made at and as of such Closing Time, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened by the
Commission.
(d) At the applicable Closing Time, you shall have received
from KPMG Peat Marwick LLP a letter, dated such date, in form and
substance satisfactory to you, containing statements and information of
the type ordinarily included in accountants "comfort letters" to
underwriters with respect to the financial statements and certain
financial information relating to the Company and its subsidiaries
contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(e) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such documents as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of
any
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of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to you and
counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the applicable
Terms Agreement may be terminated by you by notice to the Company at any time at
or prior to the applicable Closing Time, and such termination shall be without
liability of any party to any other party except as otherwise provided in
Sections 5 and 6.
The obligations of the Underwriters to purchase Additional Securities
pursuant to any Terms Agreement are subject to the delivery to you at the Option
Closing Time of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional Securities and other matters related to the issuance of the
Additional Securities.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Securities to the Underwriters, (iii) the fees and disbursements of the
Company's counsel and accountants, (iv) the qualification of the Securities
under Blue Sky or securities laws in accordance with the provisions of Section
3(g), including filing fees and the fees and disbursements of counsel in
connection therewith and in connection with the preparation of any Blue Sky
Survey and Legal Investment Survey, (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus and any amendments
or supplements thereto, (vi) the fees of rating agencies, (vii) all fees and
disbursements of the Trustee and counsel to the Trustee and (viii) the fees and
expenses, if any, incurred in connection with the listing of the Securities on
the New York Stock Exchange.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 4, the Company shall reimburse the Underwriters named in
such Terms Agreement for all of their reasonable out-of-pocket expenses,
including the fees and disbursements of counsel for the Underwriters, incurred
in connection with such Terms Agreement and the proposed offering, purchase and
sale of the related Securities. Except as otherwise provided in this Section 5,
the Company shall not be required to pay your expenses or those of other
Underwriters.
SECTION 6. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the 1933 Act or Section 20
of the 1934 Act from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused
by 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, except insofar as such losses, claims, damages
or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
The foregoing indemnity with respect to any untrue statement contained
in or omission from any preliminary prospectuses shall not inure to the
benefit of any Underwriter (or any person controlling any Underwriter)
from whom the person asserting any such loss, liability, claim or
damages purchased any of the Securities which are the subject thereof
if the untrue statement contained in or omission from any preliminary
prospectuses or any preliminary prospectus supplement was corrected in
a Prospectus (or any amendment or supplement thereto) but such person
did not receive a copy of such Prospectus (or any amendment or
supplement thereto) at or prior to confirmation of the sale of such
Securities to such person in any case where such delivery is required
by the 1933 Act, unless such failure to receive
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a copy of such amendment or supplement resulted from non-compliance by
the Company with Sections 3(a) or (b) hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in
the Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 6(a) or 6(b), such
person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by you, in the case of parties indemnified
pursuant to Section 6(a), and by the Company, in the case of parties
indemnified pursuant to Section 6(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second and third sentences
of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30
business days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities of the nature contemplated by
Section 6(a) or 6(b) (i) 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 hand from the offering of the
Securities or (ii) if the allocation provided by clause 6(d)(i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause 6(d)(i) above but also the relative fault of the Company on the
one hand and of the Underwriters on the other hand in connection with
the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand in connection with the
offering of the Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Securities
(before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the
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Underwriters, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate Public Offering Price of the
Securities. In the case of an offering without an initial public
offering price or a fixed amount of underwriting discounts and
commissions, the "underwriting discounts and commissions" shall be
equal to the difference between the total price at which the
Underwriters sell the Securities to the public and the total price that
the Underwriters pay to purchase the Securities from the Company. The
relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this
Section 6 are several in proportion to the respective number of
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 6 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 that does not take account of the equitable considerations
referred to in Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 6 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of
the Securities.
SECTION 7. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of any Securities to the Underwriters.
SECTION 8. Termination. This Agreement may be terminated for any reason
at any time by either the Company or a majority of you upon the giving of 30
days' written notice of such termination to the other parties hereto. Such of
you as may be named in any Terms Agreement may also terminate such Terms
Agreement, immediately upon notice to the Company, at any time at or prior to
the applicable Closing Time (i) if there has occurred since the later of the
date of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any new outbreak of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of such of you as are
named in such Terms Agreement, impracticable to market the Securities or enforce
contracts for the sale of the Securities or (ii) if since the later of the date
of such Terms Agreement or since the respective dates as of which information is
given in the Prospectus, trading generally on either the American Stock Exchange
or the New York Stock Exchange has been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by either of such exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium has been declared by
either Federal or New York authorities. In the event of any such termination,
the provisions of Sections 5, 6, 7 and 12 shall remain in effect.
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SECTION 9. Default. If one or more of the Underwriters participating in
an offering of Securities shall fail at the applicable Closing Time or Option
Closing Time, as the case may be, to purchase the Securities which it or they
are obligated to purchase at such time hereunder and under the applicable Terms
Agreement (the "Defaulted Securities"), then such of you as are named therein
shall have the right, within 36 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth. If, however, during
such 36 hours you shall not have completed such arrangements for the purchase of
all of the Defaulted Securities, and if the Company shall not have completed
arrangements for the purchase of all, but not less than all, of the Defaulted
Securities by other underwriters satisfactory to such of you as are named in the
applicable Terms Agreement, then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Firm
Securities to be purchased pursuant to such Terms Agreement, the
nondefaulting Underwriters shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting
obligations under the applicable Terms Agreement bear to the
underwriting obligations of all such non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Firm Securities to
be purchased pursuant to such Terms Agreement, the applicable Terms
Agreement shall terminate, without any liability on the part of any
non-defaulting Underwriter or the Company, except, in each case, as
provided in Sections 5 and 6.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability to the Company or any nondefaulting Underwriter for
damages in respect of any default of such Underwriter under this Agreement and
the applicable Terms Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section which does not result in a termination of the applicable
Terms Agreement, either you or the Company shall have the right to postpone the
applicable Closing Time or Option Closing Time, as the case may be, for a period
of not exceeding seven days in order that any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements
may be effected.
SECTION 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed, or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you, at the address indicated in the
applicable Terms Agreement; and notices to the Company shall be directed to it
at 00000 Xxxxxxxxxx Xx., Xxxxxxx, Xxxxx 00000, attention of Vice President and
Treasurer, or to such other address or person as may be designated in any such
notice.
SECTION 11. Parties. This Agreement shall inure to the benefit of and
be binding upon you and the Company, and any Terms Agreement shall inure to the
benefit of and be binding upon the Company and any Underwriter who becomes a
party to a Terms Agreement and their respective successors. Nothing expressed or
mentioned in this Agreement or a Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
or thereto and their respective successors and the controlling persons and
officers and directors referred to in Section 6 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and such controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of any
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 12. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 13. Counterparts. This Agreement may be signed by the parties
in counterparts which together shall constitute one and the same agreement among
the parties and shall become effective at such time as each of the parties shall
have signed such counterparts and shall have notified the other parties thereof.
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EXHIBIT A
ANADARKO PETROLEUM CORPORATION
DEBT SECURITIES
TERMS AGREEMENT
Dated: _____________
To: Anadarko Petroleum Corporation 00000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx
00000 Attention: Vice President and Treasurer
Re: Underwriting Agreement (Standard Provisions) Debt Securities 2001
Title of Securities:
Indenture:
Principal amount to be issued: $
Current ratings:
Interest rate: Payable:
Date of maturity:
Public offering price:
Purchase price:
Specified funds for payment of purchase price:
Closing date and location:
Lock-up Period:
Additional co-managers, if any:
Subject to the terms and provisions of the above referenced Underwriting
Agreement, which is incorporated herein in its entirety and made a part hereof
to the same extent as if such terms and provisions had been set forth in full
herein, the Company agrees to sell and each Underwriter severally agrees to
purchase the principal amount of Firm Securities set forth opposite its name.
NAME PRINCIPAL AMOUNT
---- ----------------
$
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Initial conversion price:
Initial conversion date:
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Final conversion date:
Delivery date:
Minimum Contract:
Maximum aggregate principal amount:
Fee: %.
Other terms:
We represent that as representatives of the several Underwriters we are
entitled to execute this Terms Agreement on behalf of the several Underwriters
and otherwise to act as representatives on their behalf. The Company shall be
entitled to act and rely upon any request, consent, notice or agreement given by
us as representatives of the several Underwriters.
[UNDERWRITER NAME]
By
------------------------------------
By
------------------------------------
By
------------------------------------
Acting on behalf of themselves and
the other named Underwriters.
Address for Notices:
Accepted:
ANADARKO PETROLEUM CORPORATION
By
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