TERMS AGREEMENT
Exhibit 1.1
September 26, 2008
Apache Corporation
One Post Oak Central
0000 Xxxx Xxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attention: Vice President and Treasurer
One Post Oak Central
0000 Xxxx Xxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attention: Vice President and Treasurer
Ladies and Gentlemen:
The undersigned underwriters (the “Underwriters”) understand that Apache Corporation (the
“Company”) proposes to issue and sell $400,000,000 aggregate principal amount of its 6.000% Notes
due 2013 (the “2013 Notes”) and $400,000,000 aggregate principal amount of its 6.900% Notes due
2018 the “2018 Notes” and, together with the 2013 Notes, the “Offered Securities”). Subject to the
terms and conditions set forth herein or incorporated by reference herein, the Underwriters offer
to purchase, severally and not jointly, the principal amount of Offered Securities set forth below
opposite their respective names at 98.876% of the principal amount of the 2013 Notes and 98.943% of
the principal amount of the 2018 Notes together with accrued interest thereon, respectively, from
October 1, 2008 to the Closing Time:
| Principal | Principal | |||||||
| Amount of | Amount of | |||||||
| Underwriter | 2013 Notes | 2018 Notes | ||||||
Xxxxxxx, Xxxxx & Co. |
$ | 120,000,000 | $ | 120,000,000 | ||||
X.X. Xxxxxx Securities Inc. |
120,000,000 | 120,000,000 | ||||||
Banc of America Securities LLC |
80,000,000 | 80,000,000 | ||||||
Citigroup Global Markets Inc. |
80,000,000 | 80,000,000 | ||||||
Total |
$ | 400,000,000 | $ | 400,000,000 | ||||
The Offered Securities shall have the following terms:
The 2013 Notes
Principal amount:
|
$400,000,000 | |
Form:
|
Registered book-entry form | |
Minimum denomination:
|
$2,000 and integral multiples of $1,000 in excess thereof | |
Interest Rate:
|
6.000% per annum | |
Interest Payment Dates:
|
Semi-annually on March 15 and September 15, commencing March 15, 2009 | |
CUSIP:
|
037411 AU9 | |
ISIN Number:
|
US037411AU90 | |
Issue Date:
|
October 1, 2008 | |
Maturity Date:
|
September 15, 2013 | |
Issue Price:
|
99.476% | |
Underwriters’ Discount or Commission:
|
0.600% | |
Proceeds to the Company:
|
$395,504,000 (98.876%) | |
Closing Time:
|
October 1, 2008 | |
Place of delivery and payment:
|
New York, New York | |
Company account for wire transfer of
payment:
|
Bank: Deutsche Bank Trust Company Americas | |
| City/State: New York, New York | ||
| ABA Number: 000000000 | ||
| SWIFT: XXXXXX00 | ||
| Account Number: 00000000 | ||
| Account Name: Apache Corporation | ||
Redemption provisions, if any:
|
As described in the Prospectus Supplement, dated the date hereof, relating to the Offered Securities | |
Lock-up pursuant to Section 3(i) of the
Basic Terms (as defined herein):
|
Yes | |
Letter from Xxxxx Xxxxx Company, L.P.
pursuant to Section 4(g) of the Basic
Terms:
|
No | |
Securities exchanges, if any, on which
application will be made to list the
Offered Securities:
|
None | |
Delayed Delivery Contracts:
|
Not Applicable | |
Applicable Time:
|
6:07 p.m. Eastern Daylight Time, September 26, 2008 |
2
Final Term Sheet:
|
As set forth in Schedule 1 | |
Other terms, if any:
|
None |
The 2018 Notes
Principal amount:
|
$400,000,000 | |
Form:
|
Registered book-entry form | |
Minimum denomination:
|
$2,000 and integral multiples of $1,000 in excess thereof | |
Interest Rate:
|
6.900% per annum | |
Interest Payment Dates:
|
Semi-annually on March 15 and September 15, commencing March 15, 2009 | |
CUSIP:
|
037411 AV7 | |
ISIN Number:
|
US037411AV73 | |
Issue Date:
|
October 1, 2008 | |
Maturity Date:
|
September 15, 2018 | |
Issue Price:
|
99.593% | |
Underwriters’ Discount or Commission:
|
0.650% | |
Proceeds to the Company:
|
$395,772,000 (98.943%) | |
Closing Time:
|
October 1, 2008 | |
Place of delivery and payment:
|
New York, New York | |
Company account for wire transfer of
payment:
|
Bank: Deutsche Bank Trust Company Americas | |
| City/State: New York, New York | ||
| ABA Number: 000000000 | ||
| SWIFT: XXXXXX00 | ||
| Account Number: 00000000 | ||
| Account Name: Apache Corporation | ||
Redemption provisions, if any:
|
As described in the Prospectus Supplement, dated the date hereof, relating to the Offered Securities | |
Lock-up pursuant to Section 3(i) of the
Basic Terms (as defined herein):
|
Yes | |
Letter from Xxxxx Xxxxx Company, L.P.
pursuant to Section 4(g) of the Basic
Terms:
|
No | |
Securities exchanges, if any, on which
application will be made to list the
Offered Securities:
|
None |
3
Delayed Delivery Contracts:
|
Not Applicable | |
Applicable Time:
|
6:07 p.m. Eastern Daylight Time, September 26, 2008 | |
Final Term Sheet:
|
As set forth in Schedule 1 | |
Other terms, if any:
|
None |
Each of the Underwriters represents and agrees that:
(a) In relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and
including the date on which the Prospectus Directive is implemented in that Relevant Member
State (the “Relevant Implementation Date”) it has not made and will not make an offer of
Offered Securities which are the subject of the offering contemplated by the prospectus
supplement to the public in that Relevant Member State prior to the publication of a
prospectus in relation to such Offered Securities which has been approved by the competent
authority in that Relevant Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, other than:
| (i) | to legal entities which are authorised or regulated to operate in the financial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities; | ||
| (ii) | to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000; and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; | ||
| (iii) | to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the lead manager; or | ||
| (iv) | in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive, |
provided that no such offer of Offered Securities shall require us or any underwriter to publish a
prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer of Offered Securities to the
public” in relation to any Offered Securities in any Relevant Member State means the communication
in any form and by any means of sufficient information on the terms of the offer and the Offered
Securities to be offered so as to enable an investor to decide to purchase or subscribe the Offered
Securities, as the same may be varied in that Member State by any
4
measure implementing the Prospectus Directive in that Member State and the expression “Prospectus
Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each
Relevant Member State.
| (b) | (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000 (“FSMA”)) received by it in connection with the issue or sale of the Offered Securities in circumstances in which Section 21(1) of the FSMA would not apply to the Company; and | ||
| (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Offered Securities in, from or otherwise involving the United Kingdom. |
All the provisions contained in “Apache Corporation — Debt Securities — Underwriting
Agreement Basic Terms” (the “Basic Terms”), to be filed as an exhibit to the Registration Statement
relating to the Offered Securities and attached hereto as Annex A, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined in such document are
used herein as therein defined.
5
Any notice by the Company to the Underwriters pursuant to this Terms Agreement shall be
sufficient if given in accordance with Section 11 of the Basic Terms and addressed to:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Registration Department
Fax: (000) 000-0000
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Registration Department
Fax: (000) 000-0000
and
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: High Grade Syndicate Desk
Fax: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: High Grade Syndicate Desk
Fax: (000) 000-0000
which shall, for all purposes of this Agreement, be the “Representatives”.
| Very truly yours, XXXXXXX, XXXXX & CO. |
||||
| By: | /s/ Xxxxxxx, Sachs & Co. | |||
| (Xxxxxxx, Xxxxx & Co.) | ||||
| X.X. XXXXXX SECURITIES INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Executive Director | |||
| Acting for themselves and as Representatives of the Underwriters listed in Annex B |
||||
Accepted:
APACHE CORPORATION
By: |
/s/ Xxxxxxx X. Xxxxxxx | |||
| Title: Vice President and Treasurer |
6
Apache Corporation
Debt Securities
UNDERWRITING AGREEMENT BASIC TERMS
Apache Corporation, a Delaware corporation (the “Company”), may issue and sell from time to
time its debt securities (the “Debt Securities”). The Debt Securities are issuable under an
indenture, dated as of February 15, 1996, as supplemented and amended pursuant to a First
Supplemental Indenture, dated as of November 5, 1996 (as so supplemented, the “Indenture”), between
the Company and The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New
York Trust Company, N.A. (as successor to XX Xxxxxx Xxxxx Bank, N.A., formerly known as Chemical
Bank)), as trustee (the “Trustee”). Each issue of Debt Securities may vary as to series, aggregate
principal amount, maturity, interest rate or rates and timing of payments thereof, redemption
provisions, if any, and any other variable terms as set forth in the Terms Agreement (as defined
below) relating thereto which the Indenture contemplates may be set forth in the Debt Securities as
issued from time to time.
Whenever the Company determines to make an offering of Debt Securities, the Company will enter
into an agreement (the “Terms Agreement”) providing for the sale of such securities (the “Offered
Securities”) to, and the purchase and offering thereof by, one or more underwriters specified in
the Terms Agreement (the “Underwriters”, which term shall include any Underwriters substituted
pursuant to Section 10 hereof). The Terms Agreement relating to the Offered Securities shall
specify the names of the Underwriters participating in such offering, the amount of Offered
Securities which each such Underwriter severally agrees to purchase, the price at which the Offered
Securities are to be purchased by the Underwriters from the Company, the initial public offering
price, the time and place of delivery and payment, such other information as is indicated in
Exhibit A hereto and such other terms as are agreed by the Company and the Underwriters. In
addition, each Terms Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Offered Securities to cover over-allotments, if any,
and the amount of Offered Securities subject to such option (the “Option Securities”). As used
herein, the term “Offered Securities” shall include the Option Securities, if any, and
“Representatives” shall mean the Underwriter or Underwriters so specified in the Terms Agreement
or, if no Underwriter is so specified, shall mean each Underwriter. The Terms Agreement may be in
the form of an exchange of any standard form of written telecommunication between the Underwriters
and the Company. The offering of the Offered Securities will be governed by the Terms Agreement,
as supplemented hereby (collectively, this “Agreement”), and this Agreement shall inure to the
benefit of and be binding upon each Underwriter participating in the offering of the Offered
Securities.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) an automatic shelf registration statement on Form S-3 (No. 333-141867) for the
registration of Debt Securities and other securities, including the Offered Securities, under the
Securities Act of 1933, as amended (the “1933 Act”), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under the 1933 Act (the
“1933 Act Regulations”), and has prepared and filed such amendments thereto as may have been
required to the date hereof. Such registration statement became effective upon filing under
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Rule 462(e) of the 1933 Act Regulations, and the Indenture has been qualified under the Trust
Indenture Act of 1939 (the “1939 Act”). As provided in Section 3(a), a prospectus supplement
reflecting the terms of the Offered Securities, the terms of the offering thereof and the other
matters set forth therein has been prepared and will be filed pursuant to Rule 424 of the 1933 Act
Regulations. Such prospectus supplement, in the form first filed after the date of the Terms
Agreement pursuant to such Rule 424, is herein referred to as the “Prospectus Supplement”. Such
registration statement, as amended at the date of the Terms Agreement, including the exhibits
thereto, the documents incorporated by reference therein and any information deemed to be a part
thereof or included therein by the 1933 Act Regulations, is herein called the “Registration
Statement”. The basic prospectus included in the Registration Statement relating to all offerings
of Debt Securities under the Registration Statement (the “Base Prospectus”), as supplemented by the
Prospectus Supplement, is herein called the “Prospectus”, except that, if the Base Prospectus is
amended or supplemented on or prior to the date of any applicable Terms Agreement, the term “Base
Prospectus” shall refer to the Base Prospectus as so amended or supplemented and the term
“Prospectus” shall mean such Base Prospectus as supplemented by the Prospectus Supplement from and
after the time it is first provided to the Underwriters for such use, in either case including the
documents filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934,
as amended (the “1934 Act”), that are incorporated by reference therein. Any preliminary
prospectus supplement to the Base Prospectus that describes the Offered Securities and the offering
thereof and is used prior to filing of the Prospectus pursuant to Rule 424 of the 1933 Act
Regulations is called, together with the Base Prospectus, a “Preliminary Prospectus”. The term
“Disclosure Package” shall mean (i) the Base Prospectus, including any preliminary prospectus
supplement, as amended or supplemented, (ii) the issuer free writing prospectuses as defined in
Rule 433 of the 1933 Act Regulations (each, an “Issuer Free Writing Prospectus”), if any,
identified in Schedule 1 to the applicable Terms Agreement, (iii) any other free writing prospectus
that the parties hereto shall hereafter expressly agree in writing to treat as part of the
Disclosure Package and (iv) the Final Term Sheet (as defined herein), which also shall be
identified in Schedule 1 to the applicable Terms Agreement.
SECTION 1. Representations and Warranties. The Company represents and warrants to
each Underwriter named in the Terms Agreement as of the date thereof, as of the Applicable Time
identified in such Terms Agreement and as of the Closing Time referred to in Section 2(c) hereof,
and as of each Date of Delivery (if any) referred to in Section 2(b) hereof (in each case, a
“Representation Date”), as follows:
(a) 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 corporate power and
authority to own, lease and operate its properties and to conduct its business as
described in the Disclosure Package and the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in the State of Texas and
in each other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except
where the failure to so qualify and be in good standing would not have a material
adverse effect on the condition,
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financial or otherwise, or the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise.
(b) Each “significant subsidiary” of the Company as defined in Rule 405 of
Regulation C of the 1933 Act Regulations (collectively, the “Significant
Subsidiaries”) has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and conduct
its business as described in the Disclosure Package and the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify and be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and, except as described in the Disclosure Package and
the Prospectus, all of the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, except for directors’ qualifying shares (if applicable), is
owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(c) (i) (A) At the time of filing the Registration Statement, (B) at the time of
the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of
prospectus), (C) at the time the Company or any person acting on its behalf (within
the meaning, for this clause only, of Rule 163(c) of the 1933 Act Regulations) made
any offer relating to the Offered Securities in reliance on the exemption from
Section 5(c) of the 1933 Act pursuant to such Rule 163 (“Rule 163”) and (D) at the
date of the applicable Terms Agreement, the Company was and is a “well-known
seasoned issuer”, as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”),
including not having been and not being an “ineligible issuer” as defined in Rule
405 (an “Ineligible Issuer”); (ii) the Registration Statement is an automatic shelf
registration statement as defined in Rule 405 (an “Automatic Shelf Registration
Statement”) and the Offered Securities, since their registration on the Registration
Statement, have been and remain eligible for registration by the Company on an
Automatic Shelf Registration Statement; and (iii) the Company has not received from
the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations
objecting to the use of the automatic shelf registration statement form.
(d) (i) The Registration Statement became effective upon filing under Rule 462(e)
of the 1933 Act Regulations (“Rule 462(e)”) on April 4, 2007, and any post-effective
amendment thereto also became effective upon filing under Rule 462(e). No stop
order suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have
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been instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the Commission for additional
information has been complied with. (ii) At the time the Registration Statement
became effective, at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and as of each
Representation Date, the Registration Statement complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act Regulations
and the 1939 Act and the rules and regulations of the Commission promulgated
thereunder; the Registration Statement, at the time it became effective, did not,
and at each time thereafter at which any amendment to the Registration Statement
becomes effective or any Annual Report on Form 10-K is filed by the Company with the
Commission, at each deemed effective date with respect to the Underwriters pursuant
to Rule 430B(f)(2) of the 1933 Act Regulations and as of each Representation Date,
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; the Prospectus, as of each Representation Date, does not and will not
include 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; and the Disclosure Package, as of the
Applicable Time, did not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the Registration
Statement, the Prospectus or the Disclosure Package made in reliance upon and in
conformity with information furnished to the Company in writing by the Underwriters
expressly for use in the Registration Statement, the Prospectus or the Disclosure
Package.
(e) The documents incorporated by reference in the Prospectus or the Disclosure
Package, at the time they were or hereafter are filed with the Commission, complied
or when so filed will comply, as the case may be, in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
promulgated thereunder (the “1934 Act Regulations”), and, when read together and
with the other information in the Disclosure Package and the Prospectus, did not and
will not include 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, in the light of the circumstances under which they were or are made, not
misleading.
(f) The accountants who certified the financial statements and any supporting
schedules thereto included or incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus are independent public
accountants with respect to the Company as required by the 1933 Act and the 1933 Act
Regulations.
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(g) The financial statements, and the related notes thereto, and any supporting
schedules of the Company and its subsidiaries included or incorporated by reference
in the Registration Statement, the Disclosure Package and the Prospectus present
fairly the consolidated financial position of the Company and its subsidiaries as of
the dates indicated and the consolidated results of their operations for the periods
specified; except as stated therein, said financial statements have been prepared in
conformity with U.S. generally accepted accounting principles applied on a
consistent basis; the supporting schedules included or incorporated by reference in
the Registration Statement, the Disclosure Package and the Prospectus present fairly
the information required to be stated therein; and the pro forma financial
statements and the related notes thereto, if any, included or incorporated by
reference in the Registration Statement, the Disclosure Package and the Prospectus
present fairly the information shown therein, have been prepared in accordance with
the Commission’s rules and guidelines with respect to pro forma financial statements
and have been properly compiled on the bases described therein, and the assumptions
used in the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein.
(h) The petroleum engineers who have consented to being named as having reviewed
certain reserve data included or incorporated by reference in the Disclosure Package
and the Prospectus are independent engineers with respect to the Company and its
subsidiaries.
(i) This Agreement and the applicable Delayed Delivery Contracts (as defined
below), if any, have been duly authorized, executed and delivered by the Company
and, upon execution and delivery by the Underwriters, will be valid and legally
binding agreements of the Company; 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 of the Company enforceable
in accordance with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws relating to or
affecting creditors’ rights generally and by general equity principles, and except
further as enforceability thereof may be limited by (1) requirements that a claim
with respect to any Debt Securities denominated other than in U.S. dollars (or a
foreign currency or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (2) governmental authority to limit, delay or prohibit
the making of payments outside the United States. The Offered Securities have been
duly and validly authorized for issuance, offer and sale pursuant to this Agreement
and each Delayed Delivery Contract, if any, and when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the Indenture against
payment of the consideration therefor, the Offered Securities will constitute valid
and legally binding obligations of the Company enforceable in accordance with their
terms, except as enforceability thereof may be limited by bankruptcy, insolvency,
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reorganization, moratorium and other laws relating to or affecting enforcement of
creditors’ rights generally and by general equity principles, and except further as
enforceability thereof may be limited by (1) requirements that a claim with respect
to any Offered Securities denominated other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate or exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay or prohibit the making
of payments outside the United States. The Offered Securities and the Indenture
will be substantially in the form heretofore delivered to the Underwriters and
conform in all material respects to all statements relating thereto contained in the
Disclosure Package and the Prospectus; and each Holder (as defined in the Indenture)
of Offered Securities will be entitled to the benefits of the Indenture.
(j) Since the respective dates as of which information is given in the Registration
Statement, the Disclosure Package and the Prospectus, except as may otherwise be
stated therein or contemplated thereby, (1) there has been no material adverse
change in the condition, financial or otherwise, or in the results of operations,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business and (2) there have been no material transactions entered into by the
Company or any of its subsidiaries other than those in the ordinary course of
business.
(k) Neither the Company nor any of its subsidiaries is in violation of its charter
or by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it is a party or
by which it or any of them or their properties may be bound, where the consequences
of such violation or default would have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise; and the
execution and delivery of this Agreement, each Delayed Delivery Contract, if any,
and the Indenture and the consummation of the transactions contemplated herein and
therein have been duly authorized by all necessary corporate action of the Company
and will not conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company or any subsidiary
thereof is subject, nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any law, administrative regulation or
administrative or court order or decree, where the consequences of such conflict,
breach, creation, imposition, violation or default would have a material adverse
effect on the condition, financial or otherwise, or the results of
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operations, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(l) No consent, approval, authorization, order, decree, registration or
qualification of or with any court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated by this Agreement
or in connection with the sale of Offered Securities hereunder, except such as have
been obtained or rendered, as the case may be, or as may be required under state
securities laws (“Blue Sky”).
(m) Except as may be included or incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency or body, domestic or
foreign, now pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries which might, in the opinion of the
Company, result in any material adverse change in the condition, financial or
otherwise, or in the results of operations, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise, or could
reasonably be expected to materially and adversely affect the properties or assets
thereof or could reasonably be expected to materially and adversely affect the
consummation of this Agreement or the Indenture or any transaction contemplated
hereby or thereby.
(n) There are no contracts or documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the Registration Statement by the 1933
Act or by the 1933 Act Regulations which have not been so filed.
(o) Neither the Company nor any of its subsidiaries is in violation of any law,
ordinance, governmental rule or regulation or court decree to which it may be
subject or has failed to obtain any license, permit, franchise or other governmental
authorization necessary to the ownership of its property or to the conduct of its
business, which violation or failure would materially adversely affect the
condition, financial or otherwise, or the results of operations, business affairs or
business prospects of the Company and its subsidiaries considered as one enterprise;
and the Company and its subsidiaries own or possess or have obtained all
governmental licenses, permits, consents, orders, approvals and other authorizations
and have properly filed with the appropriate authorities all notices, applications
and other documents necessary to lease or own their respective properties and to
carry on their respective businesses as presently conducted, except where the
failure to possess such licenses or authorizations or make such filings would not
materially adversely affect the condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(p) The Company and its subsidiaries own or possess, or can acquire on reasonable
terms, adequate trademarks, service marks and trade names necessary to conduct the
business now operated by them, except as set forth or incorporated
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by reference in the Registration Statement, the Disclosure Package and the
Prospectus, or except where the failure to own or possess the same would not
materially adversely affect the condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with asserted
rights of others with respect to any trademarks, service marks or trade names which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially adversely affect the condition, financial or otherwise, or
the results of operations, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(q) The Company and its subsidiaries have legal, valid and defensible title to all
of their interests in oil and gas properties and to all other real and personal
property owned by them and any other real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases, in each case free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances and defects of any kind,
except such as (1) are described in the Disclosure Package and the Prospectus,
(2) liens and encumbrances under operating agreements, unitization and pooling
agreements, production sales contracts, farm-out agreements and other oil and gas
exploration and production agreements, in each case that secure payment of amounts
not yet due and payable for the performance of other inchoate obligations and are of
a scope and nature customary in connection with similar drilling and producing
operations or (3) those that do not have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise.
(r) The information underlying the estimates of oil and gas reserves as described
in the Disclosure Package and the Prospectus is complete and accurate in all
material respects (or, with regard to any information underlying the estimates
prepared by any petroleum engineers retained by the seller of such oil and gas
reserves, is, to the best knowledge of the Company after reasonable investigation,
complete and accurate in all material respects); other than production of the
reserves in the ordinary course of business and intervening product price
fluctuations described in the Disclosure Package and the Prospectus, the Company is
not aware of any facts or circumstances that would result in a material adverse
change in the reserves or the present value of future net cash flows therefrom as
described in the Disclosure Package and the Prospectus. Estimates of such reserves
and present values comply in all material respects with the applicable requirements
of Regulation S-X and Industry Guide 2 under the 1933 Act.
(s) Neither the Company nor any of its subsidiaries is required to be registered
under the Investment Company Act of 1940, as amended (the “1940 Act”).
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(t) Except as described in the Registration Statement, the Prospectus and the
Disclosure Package, (1) neither the Company nor any of its subsidiaries is in
violation of any local or foreign laws or regulations relating to pollution or
protection of human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), except such violations as would not, singly or in the
aggregate, have a material adverse effect on the condition, financial or otherwise,
or the results of operations, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, and (2) to the best of the
Company’s knowledge, there are no events or circumstances that could reasonably be
expected to be the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to any Hazardous Materials
or the violation of any Environmental Laws, which, singly or in the aggregate, could
reasonably be expected to have a material adverse effect on the condition, financial
or otherwise, or the results of operations, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
(u) No relationship, direct or indirect, exists between or among the Company or any
of its subsidiaries on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company or any of its subsidiaries on the other hand,
which is required by the 1933 Act to be described in the Registration Statement, the
Prospectus and the Disclosure Package and which is not so described.
(v) At the earliest time after the filing of the Registration Statement relating to
the Offered Securities that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations), the
Company was not and is not an Ineligible Issuer.
(w) Neither any Issuer Free Writing Prospectus nor the Final Term Sheet, as of its
issue date and at all subsequent times through the completion of any offering of
Offered Securities or until any earlier date that the Company notified or notifies
the Representatives as described in the next sentence, did not, does not and will
not include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, including any document
incorporated by reference therein that has not been superseded or modified. If at
any time following issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the
Registration Statement, the Company has promptly notified or will promptly
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notify the Representatives and has promptly amended or supplemented or will promptly
amend or supplement, at its own expense, such Issuer Free Writing Prospectus to
eliminate or correct such conflict. The foregoing two sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any Underwriter
expressly for use therein.
(x) Any offer that is a written communication relating to the Offered Securities
made prior to the filing of the Registration Statement by the Company or any person
acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of
the 1933 Act Regulations) has been filed with the Commission in accordance with the
exemption provided by Rule 163 and otherwise complied with the requirements of Rule
163, including, without limitation, the legending requirement, to qualify such offer
for the exemption from Section 5(c) of the 1933 Act provided by Rule 163.
(y) The Registration Statement is not the subject of a pending proceeding or
examination under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the
subject of a pending proceeding under Section 8A of the 1933 Act in connection with
the offering of the Offered Securities.
(z) The Company has not distributed and will not distribute, prior to the later of
the Closing Time and the completion of the Underwriters’ distribution of the Offered
Securities, any offering material in connection with the offering and sale of any
Offered Securities other than a Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus reviewed and consented to by the Representatives and
included in Schedule 1 to the applicable Terms Agreement, or the Registration
Statement.
(aa) The Company maintains (i) effective internal control over financial reporting
as defined in Rule 13a-15 of the 1934 Act Regulations, and (ii) a system of internal
accounting controls sufficient to provide reasonable assurance that (A) transactions
are executed in accordance with management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (C) access to assets is permitted only in accordance
with management’s general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(bb) Except as disclosed in the Disclosure Package and the Prospectus, or in any
document incorporated by reference therein, since the end of the Company’s most
recent audited fiscal year, there has been (i) no material weakness in the Company’s
internal control over financial reporting (whether or not remediated) and (ii) no
change in the Company’s internal control over financial reporting that
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has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(cc) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any
of its subsidiaries, is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value
to any “foreign official” (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political office,
in contravention of the FCPA; and the Company, its subsidiaries and, to the
knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(dd) The operations of the Company and its subsidiaries are and have been conducted
at all times in compliance with applicable financial recordkeeping and reporting
requirements and the money laundering statutes and the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency, that, in each case, are
applicable to the business and operations of the Company (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries with respect to the Money Laundering Laws is pending or, to
the knowledge of the Company, threatened.
(ee) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any
of its subsidiaries, is currently subject to any sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by
OFAC.
Any certificate signed by any director or officer of the Company and delivered to the
Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by
the Company as to the matters covered thereby.
SECTION 2. Purchase and Sale.
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(a) The several commitments of the Underwriters to purchase the Offered Securities pursuant to
this 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 and therein set forth.
Offered Securities which are subject to Delayed Delivery Contracts are herein sometimes referred to
as “Delayed Delivery Offered Securities” and Offered Securities which are not subject to Delayed
Delivery Contracts are herein sometimes referred to as “Immediate Delivery Offered Securities”.
(b) In addition, on the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company may grant, if so provided in the
Terms Agreement, an option to the Underwriters named in the Terms Agreement, severally and not
jointly, to purchase up to the principal amount of Option Securities set forth therein at the same
price per security (plus, except as otherwise provided in the Terms Agreement, interest, if any,
accrued and unpaid from the Closing Time until the applicable Date of Delivery), as is applicable
to the Offered Securities. Such option, if granted, will expire 30 days after the date of the
Terms Agreement, and may be exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering and distribution of the
Offered Securities upon notice by the Representatives to the Company setting forth the principal
amount of Option Securities as to which the several Underwriters are then exercising the option and
the time and date of payment and delivery for such Option Securities. Any such time and date of
delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later
than seven full business days and not earlier than two full business days after the exercise of
said option, nor in any event prior to the Closing Time, as hereinafter defined, unless otherwise
agreed upon by the Representatives and the Company. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will
purchase the proportion of the total principal amount of Option Securities then being purchased
that the principal amount of Immediate Delivery Offered Securities each such Underwriter has agreed
to purchase, as set forth in the Terms Agreement, bears to the total principal amount of Immediate
Delivery Offered Securities, subject to such adjustments as the Representatives in their discretion
shall make to eliminate any sales or purchases in less than authorized denominations.
(c) Payment of the purchase price for, and delivery of, the Immediate Delivery Offered
Securities to be purchased by the Underwriters shall be made at the place set forth in the Terms
Agreement, or at such other place as shall be agreed upon by the Representatives and the Company,
on the third business day (unless postponed in accordance with the provisions of Section 10)
following the date of the Terms Agreement or such other time as shall be agreed upon by the
Underwriters and the Company (such time and date being referred to as the “Closing Time”). Except
as specified in the Terms Agreement, payment shall be made to the Company by wire transfer in same
day funds to the account of the Company specified in the Terms Agreement against delivery to the
Underwriters for the respective accounts of the Underwriters of the Immediate Delivery Offered
Securities to be purchased by them (unless the Offered Securities are issuable only in the form of
one or more global instruments registered in the name of a depository or a nominee of a depository,
in which event the Underwriters’ interest in such global instrument shall be noted in a manner
satisfactory to the Underwriters and their counsel). In addition, in the event that any or all of
the Option Securities are purchased by the Underwriters, payment of the purchase price for, and
delivery of certificates representing, such
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Option Securities shall be made at such place as shall be agreed upon by the Representatives
and the Company, on each Date of Delivery as agreed by the Representatives and the Company. The
Immediate Delivery Offered Securities shall be in such denominations and registered in such names
as the Underwriters may request in writing at least two business days prior to the Closing Time or
relevant Date of Delivery, as the case may be. The Immediate Delivery Offered Securities, which if
agreed by the Representatives may be in temporary form, will be made available for examination and
packaging by the Representatives on or before the first business day prior to the Closing Time or
relevant Date of Delivery, as the case may be.
(d) If authorized by the Terms Agreement, the Underwriters named therein may solicit offers to
purchase Offered Securities from the Company pursuant to delayed delivery contracts (“Delayed
Delivery Contracts”) substantially in the form of Exhibit B hereto, with such changes therein as
the Company may approve. As compensation for arranging Delayed Delivery Contracts, the Company
will pay to the Representatives at the Closing Time, for the account of the Underwriters, a fee
equal to that percentage of the aggregate principal amount of Delayed Delivery Offered Securities
for which Delayed Delivery Contracts are made at the Closing Time as is specified in the Terms
Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types set
forth in the Prospectus Supplement. At the Closing Time the Company will enter into Delayed
Delivery Contracts (for not less than the minimum principal amount of Delayed Delivery Offered
Securities per Delayed Delivery Contract specified in the Terms Agreement) with all purchasers
proposed by the Underwriters and previously approved by the Company as provided below, but not for
an aggregate principal amount of Offered Securities in excess of that specified in the Terms
Agreement. The Underwriters will not have any responsibility for the validity or performance of
Delayed Delivery Contracts.
(e) The Representatives are to submit to the Company, at least two business days prior to the
Closing Time, the names of any institutional investors with which it is proposed that the Company
will enter into Delayed Delivery Contracts and the principal amount of Delayed Delivery Offered
Securities to be purchased by each of them, and the names of the institutions with which the making
of Delayed Delivery Contracts is approved by the Company and the principal amount of Delayed
Delivery Offered Securities to be covered by each such Delayed Delivery Contract.
(f) The principal amount of Offered Securities agreed to be purchased by the respective
Underwriters pursuant to this Agreement shall be reduced by the principal amount of Delayed
Delivery Offered Securities covered by Delayed Delivery Contracts, as to each Underwriter as set
forth in a written notice delivered by the Underwriters to the Company; provided, however, that the
total principal amount of Immediate Delivery Offered Securities to be purchased by all Underwriters
shall be the total amount of the Offered Securities covered by this Agreement, less the total
principal amount of Delayed Delivery Offered Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as
follows:
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(a) Immediately following the execution of the Terms Agreement, the Company will
prepare a Prospectus Supplement in form approved by the Representatives setting
forth the principal amount of Offered Securities and their terms not otherwise
specified in the Indenture, if applicable, the names of the Underwriters and the
principal amount of the Offered Securities which each severally has agreed to
purchase, the names of the Underwriters, the price at which the Offered Securities
are to be purchased by the Underwriters from the Company, the initial public
offering price, the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as the Representatives and the Company deem
appropriate in connection with the offering of the Offered Securities. The Company
will promptly transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424 of the 1933 Act Regulations (without reliance on Rule
424(b)(8)), will take such steps as it deems necessary to ascertain promptly whether
such Prospectus Supplement was received for filing by the Commission and, in the
event that it was not, it will promptly file such Prospectus Supplement, and will
furnish to the Underwriters named therein as many copies of the Prospectus
(including the Prospectus Supplement) as the Representatives shall reasonably
request.
(b) If at any time when the Prospectus is required by the 1933 Act to be delivered
in connection with sales of the Offered Securities, including in circumstances where
such requirement may be satisfied pursuant to Rule 172 of the 1933 Act Regulations,
any event shall occur or condition exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters or counsel for the Company, to amend or
supplement the Disclosure Package or the Prospectus in order that Disclosure Package
or the Prospectus, as the case may be, will not include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at the
Applicable Time, in the case of the Disclosure Package, or at the time the
Prospectus is delivered to a purchaser, in the case of the Prospectus, or if it
shall be necessary, in the opinion of either such counsel, to amend or supplement
the Registration Statement, the Disclosure Package or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly amend the Registration Statement, the Disclosure Package or
the Prospectus, as the case may be, whether by filing documents pursuant to the 1934
Act or the 1933 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement, the Disclosure Package
or the Prospectus, as the case may be, comply with such requirements.
(c) The Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions of Rule 158 of
the 1933 Act Regulations) covering each twelve month period beginning, in each case,
not later than the first day of the Company’s fiscal quarter next following the
“effective date” (as defined in such Rule 158) of the Registration Statement with
respect to each sale of Offered Securities.
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(d) While the Prospectus is required by the 1933 Act to be delivered in connection
with sales of the Offered Securities, including in circumstances where such
requirement may be satisfied pursuant to Rule 172 of the 1933 Act Regulations, the
Company will give the Representatives notice of its intention to file any additional
registration statement with respect to the registration of additional Debt
Securities, any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or, after the Applicable Time, the Disclosure Package,
whether pursuant to the 1934 Act, the 1933 Act or otherwise; will furnish the
Underwriters with copies of any such amendment or supplement or other documents
proposed to be filed a reasonable time in advance of such proposed filing or use, as
the case may be; and will not file any such amendment or supplement or other
documents in a form to which the Representatives or counsel to the Underwriters
reasonably object.
(e) While the Prospectus is required by the 1933 Act to be delivered in connection
with sales of the Offered Securities, including in circumstances where such
requirement may be satisfied pursuant to Rule 172 of the 1933 Act Regulations, the
Company will notify the Representatives immediately, and promptly confirm the notice
in writing, of (i) the effectiveness of any amendment to the Registration Statement,
(ii) the transmittal to the Commission for filing of any supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act which will be
incorporated by reference into the Registration Statement, the Prospectus or any
Preliminary Prospectus, (iii) the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus, any Preliminary Prospectus or
the Prospectus Supplement, (iv) any request by the Commission for any amendment to
the Registration Statement, or any amendment or supplement to the Prospectus or any
Preliminary Prospectus or for additional information, (v) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, or any notice
objecting to its use pursuant to Rule 401(g)(2) of the 1933 Act Regulations, (vi)
the Company becoming the subject of a proceeding under Section 8A of the 1933 Act in
connection with the offering of the Offered Securities and (vii) any change in the
rating assigned by any nationally recognized statistical rating organization to any
debt securities of the Company or the public announcement by any nationally
recognized statistical rating organization that it has under surveillance or review,
with possible negative implications, its rating of any debt securities of the
Company. The Company will make every reasonable effort to prevent the issuance of
any stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(f) The Company will deliver to each Underwriter one conformed copy 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) and will also deliver to the
Representatives as many conformed copies of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) as the Representatives may
reasonably request. While the Prospectus is required by the
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1933 Act to be delivered in connection with sales of the Offered Securities,
including in circumstances where such requirement may be satisfied pursuant to Rule
172 of the 1933 Act Regulations, the Company will furnish to the Representatives as
many copies of the Prospectus (including the Prospectus Supplement) as the
Representatives reasonably request. The Company shall pay the required Commission
filing fees relating to the Offered Securities within the time required by Rule
456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and
otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations
(including, if applicable, by updating the “Calculation of Registration Fee” table
in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the
Registration Statement or on the cover page of a prospectus filed pursuant to Rule
424(b)).
(g) The Company will endeavor, in cooperation with the Underwriters, to qualify the
Offered Securities for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as the Underwriters may
designate, and will maintain such qualifications in effect for as long as may be
required for the distribution of the Offered Securities; provided,
however, that the Company shall not be obligated to file any general consent
to service of process or to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified. The Company will file such statements and reports as
may be required by the laws of each jurisdiction in which the Offered Securities
have been qualified as above provided. The Company will promptly advise the
Representatives of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Offered Securities for sale in any such
state or jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(h) The Company, during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the Offered
Securities, including in circumstances where such requirement may be satisfied
pursuant to Rule 172 of the 1933 Act Regulations, will file all documents required
to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act
within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(i) If specified in the Terms Agreement, between the date of the Terms Agreement
and the completion of the distribution of the Offered Securities or the Closing
Time, whichever is later, or such other time as is specified in the Terms Agreement,
the Company will not, without the prior written consent of the Representatives,
offer or sell, grant any option for the sale of, or enter into any agreement to
sell, any debt securities of the Company substantially similar to the Offered
Securities (other than the Offered Securities that are to be sold pursuant to such
agreement or commercial paper in the ordinary course of business).
(j) The Company will prepare a final term sheet containing only a description of
the Offered Securities, in a form approved by the Representatives, and will file
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such final term sheet pursuant to Rule 433(d) of the 1933 Act Regulations within the
time required by such rule (such term sheet, the “Final Term Sheet”).
(k) The Company represents that it has not made, and agrees that, unless it obtains
the prior written consent of the Representatives, it will not make, any offer
relating to the Offered Securities that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free writing prospectus” (as
defined in Rule 405 of the 1933 Act Regulations) required to be filed by the Company
with the Commission or retained by the Company under Rule 433 of the 1933 Act
Regulations; provided that the prior written consent of the Representatives hereto
shall be deemed to have been given in respect of the Free Writing Prospectuses
included in Schedule 1 to the applicable Terms Agreement. Any such free writing
prospectus consented to by the Representatives is hereinafter referred to as a
“Permitted Free Writing Prospectus”. The Company agrees that (i) it has treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer
Free Writing Prospectus, and (ii) has complied and will comply, as the case may be,
with the requirements of Rules 164 and 433 of the 1933 Act Regulations applicable to
any Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping. The Company consents to the use by
any Underwriter of a free writing prospectus that (a) is not an “issuer free writing
prospectus” as defined in Rule 433 of the 1933 Act Regulations, and (b) contains
only (i) information describing the preliminary terms of the Offered Securities or
their offering, (ii) information permitted by Rule 134 of the 1933 Act Regulations
or (iii) information that describes the final terms of the Offered Securities or
their offering and that is included in the Final Term Sheet of the Company
contemplated in Section 3(j) of this Agreement.
(l) If immediately prior to the third anniversary (the “Renewal Deadline”) of
April 4, 2007, any of the Offered Securities remain unsold by the Underwriters, the
Company will prior to the Renewal Deadline file, if it has not already done so and
is eligible to do so, a new shelf registration statement relating to the Offered
Securities, in a form satisfactory to the Representatives, and will use its best
efforts to cause such registration statement to be declared effective within 60 days
after the Renewal Deadline. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Offered Securities to
continue as contemplated in the expired registration statement relating to the
Offered Securities. References herein to the Registration Statement shall include
such new shelf registration statement.
SECTION 4. Conditions of Underwriters’ Obligations. The obligations of the
Underwriters to purchase Offered Securities pursuant to this Agreement are subject to the accuracy
of the representations and warranties on the part of the Company herein contained, to the accuracy
of the statements which the Company’s officers made in any certificate furnished pursuant to the
provisions hereof, to the performance by the Company of all of its covenants and other obligations
hereunder and under the Terms Agreement, and to the following further conditions:
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(a) At the Closing Time, 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.
(b) At the Closing Time, the Representatives shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxxxx Xxxxx LLP, counsel
to the Company, to the effect that:
(i) The Company is validly existing as a corporation in good standing under the laws of
the State of Delaware. The Company has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Disclosure Package
and the Prospectus and to enter into and perform its obligations under this Agreement and
the Delayed Delivery Contracts, if any. To the best knowledge and information of such
counsel, the Company is qualified as a foreign corporation to transact business and is in
good standing in the State of Texas and in each other U.S. jurisdiction listed in such
opinion.
(ii) Each Significant Subsidiary is validly existing as a corporation or other business
organization in good standing under the laws of the jurisdiction of its formation or
organization, has the corporate or other entity power and authority to own, lease and
operate its properties and conduct its business as described in the Disclosure Package and
the Prospectus and, to the best of such counsel’s knowledge and information, is qualified as
a foreign corporation to transact business and is in good standing in each U.S. jurisdiction
listed in such opinion; and all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable, and to our knowledge is owned of record by the Company, directly or
indirectly, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity
(except as described in the Disclosure Package and the Prospectus); provided, however, that
in respect of Apache North Sea Limited (“Apache NS”), as to its good standing in any
jurisdiction, we opine only that no action is currently being taken by Registrar of
Companies of England and Wales for striking Apache NS off the register and dissolving it as
defunct, and as far as such Registrar is aware Apache NS is not in liquidation or subject to
administrative order and no receiver or manager of Apache NS’s property has been appointed;
and as to the Company’s ownership of shares of Apache NS, that all ordinary shares of Apache
NS are owned by Apache North Sea Investment (“ANSI”) and no charges or mortgages have been
registered in Apache NS’s or ANSI’s register of charges at Companies’ House.
(iii) This Agreement has been duly authorized, executed and delivered by the Company.
(iv) The Indenture has been duly authorized, executed and delivered by the Company and
(assuming the Indenture has been duly authorized, executed and delivered by the Trustee)
constitutes a valid and legally binding agreement of the Company, enforceable in accordance
with its terms under applicable laws of the State of New York.
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(v) The Offered Securities, in the form(s) certified by the Company as of the Closing
Time, have been duly and validly authorized for issuance, offer and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant to the provisions of this
Agreement, any Delayed Delivery Contract and the Indenture against payment of the
consideration therefor, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms under applicable laws of the State of
New York; and each holder of Offered Securities will be entitled to the benefits of the
Indenture.
(vi) The Offered Securities and the Indenture conform in all material respects to the
statements relating thereto in the Disclosure Package and the Prospectus; and the statements
in the Disclosure Package and the Prospectus under the captions “Description of Notes” and
“Description of Debt Securities”, insofar as they purport to summarize certain provisions of
documents specifically referred to therein, fairly summarize the matters referred to therein
in all material respects.
(vii) The Indenture has been duly qualified under the 1939 Act.
(viii) The Registration Statement became effective upon filing under Rule 462(e) and,
to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the
Registration Statement or any has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(ix) The Registration Statement and the Prospectus (except for financial statements and
engineering reports and other financial or engineering data, and except for those parts of
the Registration Statement that constitute the Form T-1, as to which such counsel need not
express any opinion), as of their respective effective or issue dates (including, without
limitation, each deemed effective date with respect to the Underwriters pursuant to Rule
430B(f)(2) of the 1933 Act Regulations), appeared on their face to be in all material
respects appropriately responsive to the requirements of the 1933 Act and the 1933 Act
Regulations.
(x) The statements contained in the Disclosure Package and the Prospectus under the
heading “Material United States Federal Income Tax Considerations”, or similar heading, to
the extent that they constitute matters of U.S. federal income tax law or legal conclusions
with respect thereto, are correct in all material respects.
(xi) Neither the Company nor any Significant Subsidiary is required to be registered
under the 1940 Act.
(xii) No consent, approval, authorization, order, decree, registration or qualification
of or with any court or governmental authority or agency under applicable laws is required
in connection with the consummation by the Company of the transactions contemplated by this
Agreement, any Delayed Delivery Contract or the Indenture, except such as have been obtained
or rendered, as the case may be, or as may be required under the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the 1934 Act
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Regulations or state securities laws; and to the best knowledge and information of such
counsel, the execution and delivery of this Agreement, the Delayed Delivery Contract, if
applicable, and the Indenture and the performance by the Company of its obligations set
forth herein and therein will not in any material respect conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant
to, any specified contract listed in such opinion; nor will such action result, in any
material respect, in a violation of the provisions of the charter or bylaws of the Company
or any applicable law or regulation, or, to the best knowledge and information of such
counsel, any administrative or order or decree specified or described in such opinion.
(xiii) To the best of such counsel’s knowledge and information, other than in respect
of matters disclosed in the Registration Statement, the Prospectus or the Disclosure
Package, there is no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or overtly threatened against or
affecting, the Company or any of its subsidiaries, which would be reasonably expected to
result in any material adverse change in the condition, financial or otherwise, or in the
results of operations or business affairs of the Company and its subsidiaries considered as
one enterprise, or would materially and adversely affect the properties or assets thereof or
would materially and adversely affect the consummation of this Agreement, the Delayed
Delivery Contracts, if applicable, or the Indenture or any transaction contemplated hereby
or thereby.
(xiv) Each document filed pursuant to the 1934 Act and incorporated by reference in the
Disclosure Package or the Prospectus (except for exhibits, financial statements, supporting
schedules or other financial or statistical information as to which no opinion need be
rendered) appeared on its face to be appropriately responsive as to form when so filed to
the requirements of the 1934 Act and the 1934 Act Regulations.
In rendering such opinion, counsel for the Company may rely as to matters of fact upon the
representations of officers of the Company contained in any certificate delivered to such counsel
and certificates of public officials, which certificates shall be attached to or delivered with
such opinion. Such opinion shall be limited to the General Corporation Law of the State of
Delaware, the laws of the State of New York, the laws of the State of Texas and the laws of the
United States of America, and shall be further limited to applicable laws and regulations of such
jurisdictions that, in the experience of such counsel, are normally applicable to transactions of
the type contemplated by this Agreement, the Indenture and the Offered Securities. With respect to
the opinions set forth in Section 4(b)(1)(ii) above, such counsel may rely upon, and assume the
accuracy of, matters set forth in the opinions of counsel licensed in the jurisdiction in which
each such Significant Subsidiary is organized, and the language of such opinion may be conformed to
the language of such other opinions of local counsel. The opinion regarding enforceability
referred to in Sections 4(b)(1)(iv) and 4(b)(1)(v) above will be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting enforcement of creditors’ rights
generally and by general principles of equity, whether enforcement is sought at law or in equity.
Such opinion of counsel shall further be subject to customary assumptions, qualifications and
exceptions.
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(2) The favorable opinion, dated as of the Closing Time, of Sidley Austin LLP, counsel
for the Underwriters, with respect to the matters set forth in clauses (i) to (viii),
inclusive, of subsection (b)(1) of this Section.
(3) In giving their opinions required by subsection (b)(1) and (b)(2), respectively,
of this Section 4, Xxxxxxx Xxxxx LLP and Sidley Austin LLP shall each additionally state
that in the course of the preparation of the Registration Statement, the Disclosure Package
and the Prospectus such counsel has considered the information set forth therein in light of
the matters required to be set forth therein, and has participated in conferences with
officers and representatives of the Company including its independent public accountants,
during the course of which the contents of the Registration Statement, the Disclosure
Package and the Prospectus and related matters were discussed. Such counsel need not
independently check the accuracy or completeness of, or otherwise verify, and accordingly
need not pass upon, and accordingly need not assume responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration Statement, the
Disclosure Package or the Prospectus and such counsel may, in good faith, rely as to facts
necessary to the determination of materiality upon the judgment of officers and
representatives of the Company. Such counsel shall additionally state that, however, as a
result of such consideration and participation, nothing has come to such counsel’s attention
which causes such counsel to believe that (i) the Registration Statement, at the time it
became effective (or, if an amendment to the Registration Statement or an Annual Report on
Form 10-K has been filed by the Company with the Commission subsequent to the effectiveness
of the Registration Statement, then at the time such amendment became effective or at the
time of such filing, as the case may be), or as of the “new effective date” with respect to
the Underwriters pursuant to, and within the meaning of, Rule 430B(f)(2) of the 1933 Act
Regulations, contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements therein not
misleading; (ii) the Prospectus or any amendment or supplement thereto, at the time the
Prospectus was issued at the time any such amendment or supplement was issued or, at the
Closing Time 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; or (iii) the Disclosure
Package, as of the Applicable Time, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements therein, in the
light of circumstances under which they were made, not misleading (it being understood that
such counsel need not make any statement with respect to the financial statements and
engineering reports and other financial or engineering data contained in the Registration
Statement (including the Prospectus) or those parts of the Registration Statement which
constitute the Form T-1, or the Disclosure Package).
(c) At the Closing Time, there shall not have been, since the date of the Terms
Agreement or since the respective dates as of which information is given in the Registration
Statement and the Prospectus, or in the Disclosure Package, any material adverse change in
the condition, financial or otherwise, or in the results of operations, business affairs or
business prospects of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, and the
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Representatives shall have received a certificate of the Chief Executive Officer,
President or Vice President and the Treasurer, the Assistant Treasurer, the principal
financial officer or principal accounting officer of the Company, dated as of the Closing
Time, to the effect that (i) there has been no such material adverse change with respect to
the Company and its subsidiaries, (ii) the representations and warranties of the Company
contained in Section 1 are true and correct as of the Closing Time, (iii) the Company has
performed or complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the Commission. As used
in this Section 4(c), the term “Prospectus” means the Prospectus in the form first provided
to the applicable Underwriter or Underwriters for use in confirming sales of the Offered
Securities.
(d) At the Closing Time, the Underwriters shall have received a letter from Ernst &
Young LLP, dated as of the Closing Time and in form and substance satisfactory to the
Underwriters, to the effect that:
(i) As of the date of the Terms Agreement and the Closing Time, they were and are
independent accountants with respect to the Company and its subsidiaries within the meaning
of the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations.
(ii) As of the date of the Terms Agreement and the Closing Time, it was and is their
opinion that the consolidated financial statements and supporting schedule(s) included or
incorporated by reference in the Registration Statement and the Prospectus and audited by
them and covered by their opinions therein comply in form in all material respects with the
applicable accounting requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations.
(iii) In addition to the audit referred to in their opinion, they have performed
specified procedures, not constituting an audit, up to a date specified in the letter that
shall be not more than three days prior to the Closing Time, including a reading of the
latest available interim financial statements of the Company and its indicated subsidiaries,
a reading of the minute books of the Company and such subsidiaries since the end of the most
recent fiscal year with respect to which an audit report has been issued, inquiries of and
discussions with certain officials of the Company and such subsidiaries responsible for
financial and accounting matters with respect to the latest available interim unaudited
financial statements of the Company and its subsidiaries, and such other inquiries and
procedures as may be specified in such letter and setting forth the results of such
inquiries and procedures.
(e) At the Closing Time, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may reasonably require for the purpose of enabling them
to pass upon the issuance and sale of the Offered Securities as herein contemplated and
related proceedings or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
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conditions, herein contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Offered Securities as herein and in the Terms Agreement
contemplated shall be satisfactory in form and substance to the Representatives.
(f) The Final Term Sheet, and any other material required to be filed by the Company
pursuant to Rule 433(d) of the 1933 Act Regulations, shall have been filed with the
Commission within the applicable time periods prescribed for such filings under such Rule
433.
(g) If specified in the applicable Terms Agreement, at the time of execution of such
Terms Agreement, the Underwriters shall have received a signed letter, dated the date of
such Terms Agreement, in form and substance satisfactory to the Underwriters, from Xxxxx
Xxxxx Company, L.P.
(h) In the event that the Terms Agreement provides for Option Securities and the
Underwriters exercise their option pursuant to Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by the Company hereunder
shall be true and correct as of each Date of Delivery, and the Underwriters shall have
received:
(1) Unless the Date of Delivery is the Closing Time, a certificate, dated such Date
of Delivery, of the Chief Executive Officer, President or Vice President and the Treasurer,
the Assistant Treasurer, the principal financial officer or principal accounting officer of
the Company, in their capacities as such, confirming that the certificate delivered at the
Closing Time pursuant to Section 4(c) hereof remains true and correct as of such Date of
Delivery.
(2) The favorable opinion of Xxxxxxx Xxxxx LLP, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise substantially to the same effect as the
opinions required by subsection (1) of Section 4(b) hereof.
(3) The favorable opinion of Sidley Austin LLP, counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Securities and otherwise to the same effect
as the opinion required by subsection (2) of Section 4(b) hereof.
(4) Unless the Date of Delivery is the Closing Time, a letter from Ernst & Young LLP,
in form and substance satisfactory to the Underwriters and dated such Date of Delivery, a
substantially the same in scope and substance as the letter furnished to the Underwriters
at the Closing Time pursuant to Section 4(d)(2) hereof, except that the “specified date” in
the letter shall be a date not more than three days prior to such Date of Delivery.
If any condition specified in this Section shall not have been fulfilled when and as required
to be fulfilled, this Agreement may be terminated by the Representatives by notice to
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the Company at any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) the preparation and filing of the Registration Statement and all amendments
thereto, the Prospectus and any amendments or supplements thereto, any Preliminary
Prospectus and any Permitted Free Writing Prospectus;
(b) the preparation, filing and reproduction of this Agreement and the Delayed
Delivery Contract(s), if applicable;
(c) the preparation, printing, issuance and delivery of the Offered Securities,
including any fees and expenses relating to the eligibility and issuance of Offered
Securities in book-entry form;
(d) the fees and disbursements of the Company’s accountants and counsel, of the
Trustee and its counsel, and of any calculation agent or exchange rate agent;
(e) except as otherwise provided in the Terms Agreement, the reasonable fees and
disbursements of counsel to the Underwriters;
(f) the qualification of the Offered Securities under state securities laws in
accordance with the provisions of Section 3(k) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky Survey;
(g) 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, and the delivery by the
Underwriters of the Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the Offered Securities;
(h) the preparation, reproducing and delivery to the Underwriters of copies of the
Indenture and all amendments, supplements and modifications thereto;
(i) any fees charged by nationally recognized statistical rating organizations for
the rating of the Offered Securities;
(j) the fees and expenses incurred in connection with any listing of Offered
Securities on a securities exchange;
(k) the fees and expenses incurred with respect to any filing with the National
Association of Securities Dealers, Inc.;
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(l) any out-of-pocket expenses of the Underwriters incurred with the approval of
the Company; and
(m) the cost of providing any CUSIP or other identification numbers for the Offered
Securities.
If this Agreement is terminated by the Underwriters in accordance with the provisions of
Section 9, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and hold harmless
each Underwriter, its directors, officers and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), including information deemed to be
part of the Registration Statement pursuant to Rule 430B of the 1933 Act Regulations, or the
omission or alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in the Base Prospectus,
any preliminary prospectus supplement, any Issuer Free Writing Prospectus, the information
contained in the Final Term Sheet, or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading, unless such untrue statement or omission or such alleged untrue
statement or omission was made in reliance upon and in conformity with written information
furnished to the Company by an Underwriter expressly for use in the Registration Statement
(or any amendment thereto), the Base Prospectus, such preliminary prospectus supplement,
such Issuer Free Writing Prospectus, such Final Term Sheet or the Prospectus (or any
amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that such settlement is effected with the written consent of
the Company, which consent shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred (including the fees and expenses
of counsel chosen by such Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above.
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(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15 of the 1933
Act against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), the Base Prospectus, any preliminary prospectus
supplement, any Issuer Free Writing Prospectus, the information contained in the Final Term
Sheet, or the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter expressly
for use in the Registration Statement (or any amendment thereto), the Base Prospectus, such
preliminary prospectus supplement, such Issuer Free Writing Prospectus, such Final Term
Sheet or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify an indemnifying party shall not relieve it
from any liability which it may have otherwise than on account of this indemnity agreement.
If any such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this Section for any
legal or other expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation; provided, however, that
each Underwriter shall have the right to employ counsel to represent jointly the
Underwriters and their respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the Underwriters
against the Company under this Section if, in the judgment of any of the Underwriters, it is
advisable for such Underwriter or Underwriters and controlling persons to be jointly
represented by separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties (which shall not unreasonably be withheld),
settle or compromise or consent to the entry of any judgment with respect to any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all liability
arising out of such litigation,
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investigation, proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) For purposes of this Section 6, all references to the Registration Statement, the
Base Prospectus, any preliminary prospectus supplement, Issuer Free Writing Prospectus,
Final Term Sheet or the Prospectus, or any amendment or supplement to any of the foregoing,
shall be deemed to include, without limitation, any electronically transmitted copies
thereof, including, without limitation, any copies filed with the Commission pursuant to
XXXXX.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (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 Offered Securities pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, 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 Offered Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Offered Securities
pursuant to this Agreement (before deducting expenses) received by the Company and the total
commission or underwriting discount received by each Underwriter, in each case as set forth on the
cover of the Prospectus Supplement, bear to the aggregate initial public offering price of the
Offered Securities sold to or through such Underwriter as set forth on such cover. 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 Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this Section 7 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 in this Section 7. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered Securities sold to
or through such Underwriter were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise
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been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each director, officer and each
person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Offered Securities sold to or through each Underwriter and
not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company submitted pursuant hereto or thereto shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any Underwriter or
controlling person of an Underwriter, or by or on behalf of the Company, and shall survive each
delivery of and payment for any Offered Securities.
SECTION 9. Termination.
(a) The Representatives may terminate this Agreement immediately upon notice to the Company,
at any time at or prior to the Closing Time if (i) there has been, since the date of the Terms
Agreement or since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or otherwise, or in the results
of operations, business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business, or
(ii) there shall have occurred any material adverse change in the financial markets in the United
States or any outbreak or escalation of hostilities or other national or international calamity or
crisis the effect of which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Offered Securities or enforce contracts for the sale of
the Offered Securities, or (iii) trading in any securities of the Company has been suspended by the
Commission or a national securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have 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 said exchanges or by order of the Commission or any other governmental authority, or if a
banking moratorium shall have been declared by either Federal, New York or Texas authorities or if
a banking moratorium shall have been declared by the relevant authorities in the country or
countries of origin of any foreign currency or currencies in which the Offered Securities are
denominated or payable, or (iv) the rating assigned by any nationally recognized statistical rating
organization to any debt securities of the Company as of the date of the Terms Agreement shall have
been lowered since that date or if any such rating organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its rating of any debt
securities of the Company, or (v) there has been a material disruption in securities settlement,
payment or clearance services in the United States, or (vi) there shall have come to the attention
of the Representatives any facts
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that would cause them to reasonably believe that (x) the Disclosure Package, at the Applicable
Time, or (y) the Prospectus, at the time it was required to be delivered to a purchaser of the
Offered Securities, including in circumstances where such requirement may be satisfied pursuant to
Rule 172 of the 1933 Act Regulations, included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances existing at the time of such delivery, not misleading. As used in this Section 9,
the term “Prospectus” means the Prospectus in the form first provided to the applicable Underwriter
or Underwriters for use in confirming sales of the related Offered Securities.
(b) If this Agreement is terminated pursuant to this Section, such termination shall be
without liability of any party to any other party, except to the extent provided in Section 5.
Notwithstanding any such termination, (i) the covenants set forth in Section 3(b), (d), and (e)
with respect to any offering of Offered Securities shall remain in effect so long as any
Underwriter owns any such Offered Securities purchased from the Company pursuant to this Agreement
and during the period when the Prospectus is required to be delivered in connection with sales of
the Offered Securities and (ii) the covenants set forth in Section 3(c), (g), (h) and, if
applicable, (i), the provisions of Section 5, the indemnity agreement set forth in Section 6, the
contribution provisions set forth in Section 7 and the provisions of Sections 8, 11, 12 and 13
shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters shall fail at the Closing
Time or a Date of Delivery to purchase the Immediate Delivery Offered Securities which it or they
are obligated to purchase under the applicable Terms Agreement (the “Defaulted Securities”), then
the Representatives shall have the right, within 24 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 24 hours the Representatives shall not have completed
such arrangements for the purchase of all of the Defaulted Securities, then:
(a) if the amount of Defaulted Securities does not exceed 10% of the amount of
Immediate Delivery Offered Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the amount of Defaulted Securities exceeds 10% of the number of Immediate
Delivery Offered Securities to be purchased on such date, the applicable Terms
Agreement or, with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the Underwriters to purchase and of the Company to sell the
Option Securities to be purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting Underwriter from
liability in respect of its default.
A-29
In the event of any such default which does not result in a termination of the applicable
Terms Agreement or, in the case of a Date of Delivery which is after the Closing Time, which does
not result in a termination of the obligation of the Underwriters to purchase and the Company to
sell the relevant Option Securities, as the case may be, either the Representatives or the Company
shall have the right to postpone the Closing Time or the relevant Date of Delivery, as the case may
be, for a period not exceeding seven days in order to effect any required changes in the
Registration Statement or the Prospectus or in any other documents or arrangements. As used
herein, the term “Underwriter” includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall be in
writing, either delivered by hand, by mail or by telex, telecopier or telegram, and any such notice
shall be effective when received at the address specified in this Section 11. Notices to the
Underwriters shall be directed as provided in the applicable Terms Agreement. Notices to the
Company shall be directed to Apache Corporation, 0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000-0000, Attention: Vice President and Treasurer, with a copy to: Xxxxxxx Xxxxx LLP, 000
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxxxxxxxx, Esq. Any party to this
Agreement may from time to time designate another address to receive notice pursuant to this
Agreement by notice duly given in accordance with the terms of this Section 11.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be binding upon
the Underwriters and the Company and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling persons and officers
and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal
or equitable right, remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended to be for the sole
and exclusive benefit of the parties hereto and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives, and for the benefit
of no other person, firm or corporation. No purchaser of Offered Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law. This Agreement and all the rights and obligations of the
parties hereto shall be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State.
SECTION 14. No Advisory or Fiduciary Responsibility. The Company acknowledges and
agrees that: (i) the purchase and sale of the Offered Securities pursuant to this Agreement,
including the determination of the public offering price of the Offered Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other hand, and the Company is capable of evaluating
and understanding and understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement; (ii) in connection with each transaction contemplated by this
Agreement and the process leading to such transaction each Underwriter is and has been acting
solely as a principal and is not the financial advisor, agent or fiduciary of the Company or its
affiliates, stockholders, creditors or employees or any other party; (iii) no
A-30
Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in
favor of the Company with respect to any of the transactions contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or is currently advising the
Company on other matters) and no Underwriter has any obligation to the Company with respect to the
offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the
several Underwriters and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company and that the several
Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency
or fiduciary relationship; and (v) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and the Company has
consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
The Company hereby waives and releases, to the fullest extent permitted by law, any claims
that the Company may have against the several Underwriters with respect to any breach or alleged
breach of agency or fiduciary duty.
SECTION 15. Patriot Act. The Company acknowledges and agrees that in accordance with
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)), the Underwriters are required to obtain, verify and record information that identifies
their respective clients, including the Company, which information may include the name and address
of their respective clients, as well as other information that will allow the Underwriters to
properly identify their respective clients
SECTION 16. Counterparts. Any Terms Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed counterparts thereof shall
constitute a single instrument.
A-31
EXHIBIT A
FORM OF TERMS AGREEMENT
, 20
Apache Corporation
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attention: [Title]
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attention: [Title]
Ladies and Gentlemen:
The undersigned underwriters (the “Underwriters”) understand that Apache Corporation (the
“Company”) proposes to issue and sell $ aggregate principal amount of its debt securities
(the “Offered Securities”). Subject to the terms and conditions set forth herein or incorporated
by reference herein, the Underwriters offer to purchase, severally and not jointly, the principal
amount of Offered Securities set forth below opposite their respective names at ___% of the
principal amount thereof together with accrued interest thereon from , 20___ to the
Closing Time:
| Principal | ||||||||
| Amount of | ||||||||
| Underwriter | Debt Securities | |||||||
| Total | $ | |||||||
The Offered Securities shall have the following terms:
Principal amount:
Form and denomination:
Date of maturity:
Interest rate, rates or formula
(or method of calculation
of interest accrual):
Date from which interest accrues:
Interest payment dates, if any:
Initial price to public:
Closing Time:
Applicable Time:
Place of delivery and payment:
Company account for wire transfer of payment:
Redemption provisions, if any:
Lock-up pursuant to Section 3(i) of the
Form and denomination:
Date of maturity:
Interest rate, rates or formula
(or method of calculation
of interest accrual):
Date from which interest accrues:
Interest payment dates, if any:
Initial price to public:
Closing Time:
Applicable Time:
Place of delivery and payment:
Company account for wire transfer of payment:
Redemption provisions, if any:
Lock-up pursuant to Section 3(i) of the
A-32
Underwriting Agreement Basic Terms: [yes] [no]
Securities exchanges, if any, on which application will be made to list the Offered Securities:
Delayed Delivery Contracts: [authorized] [not authorized]
Delivery date:
Expiration date:
Compensation to Underwriters:
Minimum contract:
Maximum aggregate principal amount:
Expiration date:
Compensation to Underwriters:
Minimum contract:
Maximum aggregate principal amount:
Final Term Sheet:
Other terms, if any:
Other terms, if any:
All the provisions contained in “Apache Corporation-Debt Securities—Underwriting Agreement
Basic Terms” (the “Basic Terms”), filed as an exhibit to the Registration Statement relating to the
Offered Securities and attached hereto as Annex A, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. Terms defined in such document are used herein as
therein defined.
Any notice by the Company to the Underwriters pursuant to this Terms Agreement shall be
sufficient if given in accordance with Section 11 of the Basic Terms addressed to: [insert name and
address of the lead manager or managers or, if only one underwriter is a party hereto, of such
firm] which shall, for all purposes of this Agreement, be the “Representatives”.
| Very truly yours, | ||||
| REPRESENTATIVE[S] | ||||
| By: | ||||
| [Acting for themselves and as Representative[s] of | ||||
| the Underwriters] | ||||
| Accepted: | ||||
| APACHE CORPORATION | ||||
By: |
||||
A-33
ANNEX A
[Apache Corporation—Debt Securities—
Underwriting Agreement Basic Terms]
[Apache Corporation—Debt Securities—
Underwriting Agreement Basic Terms]
A-34
SCHEDULE 1
Final Term Sheet relating to the Offered Securities (attached as Exhibit A-1 to this Terms
Agreement).
X-00
XXXXXXX X-0
[Final Term Sheet]
[Final Term Sheet]
A-36
EXHIBIT B
APACHE CORPORATION
[Title of Offered Securities]
DELAYED DELIVERY CONTRACT
[Title of Offered Securities]
DELAYED DELIVERY CONTRACT
Apache Corporation
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attention:
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Apache Corporation (the “Company”), and the
Company agrees to sell to the undersigned on , 20___(the “Delivery Date”),
$ principal amount of the Company’s ___% Offered Securities due ___, 20___
(the “Offered Securities”), offered by the Company’s Prospectus dated ___, 20___, as
supplemented by its Prospectus Supplement dated ___, 20___, receipt of which is hereby
acknowledged, at a purchase price of ___% of the principal amount thereof, plus accrued interest
from , , to the Delivery Date, and on the further terms and conditions set forth in
this contract.
Payment for the securities which the undersigned has agreed to purchase on the Delivery Date
shall be made to the Company or its order by wire transfer in immediately available funds on the
Delivery Date, upon delivery to the undersigned of the Offered Securities to be purchased by the
undersigned in definitive or global form and in such denominations and registered in such names as
the undersigned may designate by written or telegraphic communication addressed to the Company not
less than three full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for Offered Securities
on the Delivery Date shall be subject only to the conditions that (1) the purchase of Offered
Securities to be made by the undersigned shall not on the Delivery Date be prohibited under the
laws of the jurisdiction to which the undersigned is subject and (2) the Company, on or before
, ___, shall have sold to the Underwriters of the Offered Securities (the
“Underwriters”) such principal amount of the Offered Securities as is to be sold to them pursuant
to the Terms Agreement dated , ___between the Company and the Underwriters. The
obligation of the undersigned to take delivery of and make payment for Offered Securities shall not
be affected by the failure of any purchaser to take delivery of and make payment for Offered
Securities pursuant to other contracts similar to this contract. The undersigned represents and
warrants to the Underwriters that its investment in the Offered Securities is not, as of the date
hereof, prohibited under the laws of any jurisdiction to which the undersigned is subject and which
govern such investment.
Promptly after completion of the sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection therewith.
A-37
By the execution hereof, the undersigned represents and warrants to the Company that all
necessary corporate action for the due execution and delivery of this contract and the payment
for and purchase of the Offered Securities has been taken by it and no further authorization
or approval of any governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and binding agreement
of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the parties hereto and their
respective successors, but will not be assignable by either party hereto without the written
consent of the other.
It is understood that the Company will not accept Delayed Delivery Contracts for an aggregate
principal amount of Offered Securities in excess of $ and that the acceptance of any
Delayed Delivery Contract is in the Company’s sole discretion and, without limiting the foregoing,
need not be on a first come first-served basis. If this contract is acceptable to the Company, it
is requested that the Company sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such copy is so mailed or delivered.
A-38
This Agreement shall be governed by the laws of the State New York applicable to agreements
made and performed in said State.
| Yours very truly, | ||||
| (Name of Purchaser) | ||||
| By | ||||
| (Title) | ||||
| (Address) | ||||
Accepted as of the date
first above written.
first above written.
Apache Corporation
By:
PURCHASER — PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with whom details of
delivery on the Delivery Date shall be discussed is as follows: (Please print.)
| Telephone No. | ||
| Name | (Including Area Code) | |
X-00
XXXXX X
XXXXXXX, XXXXX & XX.
X.X. XXXXXX SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
X.X. XXXXXX SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
B-1
SCHEDULE 1
Final Term Sheet for the Offered Securities (attached as Exhibit A to this Terms Agreement)
S-1
EXHIBIT A
PRICING TERM SHEET
September 26, 2008
Apache Corporation
6.000% Notes due 2013
6.900% Notes due 2018
6.000% Notes due 2013
6.900% Notes due 2018
Pricing Term Sheet
| Issuer: | Apache Corporation | |||
| Anticipated Ratings | A3 / A- / A (Stable / Stable / Negative) | |||
(Xxxxx’x / S&P / Fitch): |
||||
| Settlement: | October 1, 2008; T+3 | |||
| Trade Date: | September 26, 2008 | |||
| Registration: | Registration Statement | |||
| No. 333 -141867 | ||||
| Interest Payment Dates: | Semi-annually on March 15 and September 15, commencing March 15, 2009 | |||
Security Description: |
6.000% Notes due 2013 | 6.900% Notes due 2018 | ||
Principal Amount: |
$400,000,000 | $400,000,000 | ||
Maturity: |
September 15, 2013 | September 15, 2018 | ||
Coupon: |
6.000% | 6.900% | ||
Benchmark Treasury: |
3.125% due 8/31/2013 | 4.000% due 8/15/2018 | ||
Benchmark Treasury Yield: |
3.025% | 3.858% | ||
Spread to Benchmark Treasury: |
+310 bps | +310 bps | ||
Yield to Maturity: |
6.125% | 6.958% | ||
Initial Price to Public: |
99.476% per Note | 99.593% per Note | ||
EXHIBIT A-1-1
Redemption Provisions:
|
The notes will be
redeemable, at the
option of Apache
Corporation, at any
time, in whole or
in part, at a
redemption price
equal to the
greater of (i) 100% of the principal amount and (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted, on a semi-annual basis, at the treasury yield plus 50 basis points, plus accrued interest to the date of redemption. |
The notes will be redeemable,
at the option of Apache
Corporation, at any time, in
whole or in part, at a
redemption price equal to the
greater of (i) 100% of the principal amount and (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted, on a semi-annual basis, at the treasury yield plus 50 basis points, plus accrued interest to the date of redemption. |
||
Denominations:
|
$2,000 or any integral multiple of $1,000 in excess thereof | $2,000 or any integral multiple of $1,000 in excess thereof | ||
CUSIP:
|
037411 AU9 | 037411 AV7 | ||
Joint Book-Running
Managers:
|
Xxxxxxx, Xxxxx & Co. X.X. Xxxxxx Securities Inc. |
|||
Co-Managers:
|
Banc of America Securities LLC Citigroup Global Markets Inc. |
Each security rating agency has its own methodology for assigning ratings. Security ratings are
not recommendations to buy, sell or hold securities and may be subject to revision or withdrawal at
any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or
any dealer participating in the offering will arrange to send you the prospectus if you request it
by calling Xxxxxxx, Xxxxx & Co. toll free at (000) 000-0000 or X.X. Xxxxxx Securities Inc. collect
at (000) 000-0000.
EXHIBIT A-1-1
