EXHIBIT 1.1
DEVON ENERGY CORPORATION
$1,000,000,000
7.950% Debentures
due April 15, 2032
UNDERWRITING AGREEMENT
March 20, 2002
UNDERWRITING AGREEMENT
March 20, 0000
XXXX XX XXXXXXX SECURITIES LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
UBS WARBURG LLC
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxxx 00000
as Representatives of the several Underwriters named
in Schedule A
Ladies and Gentlemen:
Devon Energy Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell to the Underwriters named in Schedule A
annexed hereto (the "Underwriters") $1,000,000,000 aggregate principal amount of
its 7.950% Debentures due April 15, 2032 (the "Debentures"). The Debentures are
described in the Prospectus which is referred to below.
The Debentures are to be issued pursuant to an indenture (the
"Base Indenture") to be dated as of March 1, 2002, as amended and supplemented
by the First Supplemental Indenture to be dated as of March 25, 2002 (the
"Supplemental Indenture" and together with the Base Indenture, the "Indenture"),
between the Company and The Bank of New York, as trustee (the "Trustee"). Copies
of the Indenture, in substantially final form, have been delivered to each of
the Underwriters.
The Company has filed, in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-83156)
including a prospectus relating to the Debentures which incorporates by
reference documents which the Company has filed or will file in accordance with
the provisions of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder (collectively, the "Exchange Act"). The Company has
prepared a prospectus supplement (the "Prospectus Supplement") to the prospectus
included in the registration statement referred to above setting forth the terms
of the offering, sale and plan of distribution of the Debentures and additional
information concerning the Company and its business. The Company has furnished
to you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses, containing the prospectus included in the registra-
tion statement, as supplemented by a preliminary Prospectus Supplement, and the
documents incorporated by reference therein (each such preliminary prospectus
being referred to herein as a "Preliminary Prospectus"), relating to the
Debentures. Except where the context otherwise requires, the registration
statement referred to above, as amended when it became effective, including all
documents filed as a part thereof or incorporated by reference therein, and
including any information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424(b) under the Act and deemed to be part of the
registration statement at the time of its effectiveness and also including any
registration statement filed pursuant to Rule 462(b) under the Act, is referred
to herein as the "Registration Statement", and the prospectus included in the
Registration Statement, including all documents incorporated therein by
reference, as supplemented by the final Prospectus Supplement, in the form filed
by the Company with the Commission pursuant to Rule 424(b) under the Act on or
before the second business day after the date hereof (or such earlier time as
may be required under the Act), is herein called the "Prospectus". Any reference
herein to the Registration Statement, the Prospectus, any Preliminary Prospectus
or any amendment or supplement thereto shall be deemed to refer to and include
the documents incorporated by reference therein, and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Prospectus or any Preliminary Prospectus shall be deemed to refer
to and include the filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein.
This Agreement, the Debentures and the Indenture are
hereinafter sometimes referred to collectively as the "Operative Documents."
The Company and the Underwriters agree as follows:
1. Sale and Purchase: Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Company agrees to sell to the respective Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company,
the aggregate principal amount of Debentures set forth opposite the name of such
Underwriter in Schedule A attached hereto in each case at a purchase price of
98.606% of the principal amount thereof, plus accrued interest, if any, from
March 25, 2002 to the time of purchase (as hereinafter defined). The Company is
advised by you that the Underwriters intend (i) to make a public offering of
their respective portions of the Debentures as soon after the effective date of
this Agreement as in your judgment is advisable and (ii) initially to offer the
Debentures upon the terms set forth in the Prospectus. You may from time to time
increase or decrease the public offering price after the initial public offering
to such extent as you may determine.
2. Payment and Delivery: Payment of the purchase price for the
Debentures shall be made to the Company by federal funds wire transfer, against
delivery of the certificates for the Debentures to you through the facilities of
The Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on March 25, 2002 (unless another time not later
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than March 25, 2002 shall be agreed to by you and the Company or unless
postponed in accordance with the provisions of Section 8 hereof). The time at
which such payment and delivery are actually made is hereinafter sometimes
called the "time of purchase". Certificates for the Debentures shall be
delivered to you in global form registered in such names and in such
denominations as you shall specify. For the purpose of expediting the checking
of the certificates for the Debentures by you, the Company agrees to make such
certificates available to you for such purpose at least one full business day
preceding the time of purchase. As used herein "business day" shall mean a day
on which the New York Stock Exchange is open for trading.
3. Representations and Warranties of the Company: The Company
represents and warrants to each of the Underwriters that:
(a) The Company and the transactions contemplated by this
Agreement meet the requirements and conditions for using a registration
statement on Form S-3 under the Act. The Registration Statement has
been filed with the Commission and has been declared effective under
the Act. The Registration Statement meets the requirements set forth in
Rule 415(a)(1)(x) under the Act and complies in all material respects
with such Rule. The Company has not received, and has no notice of, any
order of the Commission preventing or suspending the use of the
Registration Statement, or threatening or instituting proceedings for
that purpose.
(b) A Preliminary Prospectus, including a preliminary
Prospectus Supplement, has been prepared and filed pursuant to Rule
424(b) of the Act.
(c) The Prospectus, including a final Prospectus Supplement,
has been or will be prepared and will be filed pursuant to Rule 424(b)
of the Act on or before the second business day following the date of
this Agreement (or such earlier time as may be required under the Act).
Each part of the Registration Statement, when such part became or
becomes effective or was or is filed with the Commission, and the
Prospectus and any amendment or supplement thereto, on the date of
filing thereof with the Commission, and the Registration Statement, the
Prospectus and the Indenture at the time of purchase complied or will
comply in all material respects with the requirements of the Act and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). Each part of the Registration Statement, when such part became
or becomes effective or was or is filed with the Commission, did not or
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 and any
amendment or supplement thereto, on the date of filing thereof with the
Commission pursuant to Rule 424(b) and at the time of purchase, did not
or 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, except that the foregoing shall not apply to statements
in, or omissions from, any such document in reliance upon, and in
conformity with,
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written information concerning the Underwriters that was furnished in
writing to the Company by Banc of America Securities LLC or UBS Warburg
LLC, on behalf of the several Underwriters, specifically for use in the
preparation thereof.
(d) The documents incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Prospectus
or any amendment or supplement thereto, when they became or become
effective under the Act or were or are filed with the Commission under
the Act or the Exchange Act, as the case may be, complied or will
comply as to form in all material respects with the requirements of the
Act and Exchange Act, as applicable, and none of such documents
contained or contain an untrue statement of a material fact or omit or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(e) Copies of the Registration Statement, any Preliminary
Prospectus and the Prospectus, any such amendments or supplements and
all documents incorporated by reference therein that were filed with
the Commission on or prior to the date of this Agreement (including one
fully executed copy of the Registration Statement and of each amendment
thereto for the Underwriters) have been delivered to the Underwriters
and their counsel. The Company has not distributed any offering
material in connection with the offering or sale of the Debentures
other than the Registration Statement, the Preliminary Prospectus
referred to in paragraph (b) above, the Prospectus or any other
materials, if any, permitted by the Act.
(f) Attached as Schedule B is a true and complete list of all
Restricted Subsidiaries (as defined in the Indenture (assuming the
acquisition of Xxxxxxxx Energy & Development Corp. had occurred as of
December 31, 2001)) of the Company, their jurisdictions of
incorporation or formation, type of entity and equity ownership. Other
than Devon Energy Corporation (Oklahoma) (which shall be deemed a
"Restricted Subsidiary" for purposes of this Agreement), no subsidiary
of the Company other than the Restricted Subsidiaries constitutes a
"significant" subsidiary of the Company within the meaning of
Regulation S-X under the Act. All of the issued and outstanding shares
of capital stock or other equity interests of each Restricted
Subsidiary have been duly authorized and validly issued and are fully
paid and nonassessable, except as such nonassessability may be affected
by certain provisions of any applicable jurisdiction's statutes. All
shares of capital stock or other equity interests of the Restricted
Subsidiaries that are owned of record directly by the Company or
indirectly by a wholly owned subsidiary of the Company are owned free
and clear of any lien, security interest, pledge, charge, encumbrance,
equity or claim; none of the outstanding shares of capital stock or
other equity interests of each such Restricted Subsidiary was issued in
violation of any preemptive or similar rights or the charter or bylaws
or other organizational documents of the Company or such Restricted
Subsidiary or any agreement to which the Company or such Restricted
Subsidiary is a party. Except as set forth in the Registration
Statement and Prospectus, there will not be any outstanding
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rights, warrants or options to acquire, or instruments convertible into
or exchangeable for, any shares of capital stock or other equity
interest of the Restricted Subsidiaries.
(g) The Company and each Restricted Subsidiary has been duly
incorporated, organized or formed as a corporation, partnership or
other entity in good standing under the laws of its respective
jurisdiction of incorporation, organization or formation and has all
requisite power and authority to carry on its business as it is
currently being conducted and as described in the Registration
Statement and Prospectus and to own, lease, license and operate its
respective properties in accordance with its business as currently
conducted. The Company and each Restricted Subsidiary is duly qualified
and in good standing as a foreign corporation, partnership or other
entity authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would
not, either individually or in the aggregate, result in a Material
Adverse Effect. A "Material Adverse Effect" means any material adverse
effect on the business, condition (financial or other), properties,
results of operations or prospects of the Company and its subsidiaries,
taken as a whole.
(h) The Company has all requisite power and authority to
execute, deliver and perform all of its obligations under the Operative
Documents and to consummate the transactions contemplated by the
Operative Documents to be consummated on its part and, without
limitation, the Company has all requisite power and authority to issue,
sell and deliver the Debentures.
(i) This Agreement has been duly and validly authorized,
executed and delivered by the Company.
(j) The Indenture has been duly and validly authorized by the
Company and, when duly executed and delivered by the Company (assuming
the due authorization, execution and delivery thereof by the Trustee),
will constitute a legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before which any
proceedings therefor may be brought. The Indenture, when executed and
delivered, will conform in all material respects to the description
thereof in the Registration Statement and Prospectus.
(k) The Debentures have been duly and validly authorized for
issuance and sale to the Underwriters by the Company and, when issued,
authenticated and delivered by the Company against payment by the
Underwriters in accordance with the terms of this Agreement and the
Indenture, the Debentures will be legal, valid and binding obligations
of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except
as enforcement
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thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity and the discretion of the court before which any proceedings
therefor may be brought. The Debentures, when issued, authenticated and
delivered, will conform in all material respects to the description
thereof in the Registration Statement and Prospectus.
(l) All taxes, fees and other governmental charges that are
due and payable on or prior to the time of purchase in connection with
the execution, delivery and performance of the Operative Documents and
the execution, delivery and sale of the Debentures shall have been paid
by or on behalf of the Company at or prior to the time of purchase,
except for those failures which would not reasonably be expected,
either individually or in the aggregate, to interfere with or adversely
affect the issuance of the Debentures in any jurisdiction or adversely
affect the consummation of the transactions contemplated by any of the
Operative Documents.
(m) None of the Company or any Restricted Subsidiary is (A) in
violation of its charter, bylaws or other constitutive documents, (B)
in default (or, with notice or lapse of time or both, would be in
default) in the performance or observance of any obligation, agreement,
covenant or condition contained in any bond, debenture, note,
indenture, mortgage, deed of trust, loan or credit agreement, lease,
license, franchise agreement, authorization, permit, certificate or
other agreement or instrument to which any of them is a party or by
which any of them is bound or to which any of their assets or
properties is subject (collectively, "Agreements and Instruments"), or
(C) in violation of any law, statute, rule, regulation, judgment, order
or decree of any domestic or foreign court with jurisdiction over any
of them or any of their assets or properties or other governmental or
regulatory authority, agency or other body, that, in the case of
clauses (B) and (C) herein, would reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.
There exists no condition that, with notice, the passage of time or
otherwise, would constitute a default by the Company or any Restricted
Subsidiary under any such document or instrument or result in the
imposition of any penalty or the acceleration of any indebtedness,
other than penalties, defaults or conditions that would not have a
Material Adverse Effect.
(n) The execution, delivery and performance by the Company of
the Operative Documents, including the consummation of the offer and
sale of the Debentures, does not or will not violate, conflict with or
constitute a breach of any of the terms or provisions of, or a default
under (or an event that with notice or the lapse of time, or both,
would constitute a default), or require consent under, or result in the
creation or imposition of a lien, charge or encumbrance on any property
or assets of the Company or any Restricted Subsidiary or an
acceleration of any indebtedness of the Company or any Restricted
Subsidiary pursuant to, (i) the charter, bylaws or other constitutive
documents of the Company or any Restricted Subsidiary, (ii) assuming
the consummation of the transactions contemplated thereby, any
Agreements and Instruments,
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(iii) any law, statute, rule or regulation applicable to the Company or
any of its subsidiaries or their respective assets or properties or
(iv) any judgment, order or decree of any domestic or foreign court or
governmental agency or authority having jurisdiction over the Company
or any Restricted Subsidiary or its respective assets or properties
that, in the case of clauses (ii) through (iv), would reasonably be
expected, either individually or in the aggregate, (1) to have a
Material Adverse Effect or (2) to interfere with or adversely affect
the issuance of the Debentures in any jurisdiction or adversely affect
the consummation of the transactions contemplated by any of the
Operative Documents. No consent, approval, authorization or order of,
or filing, registration, qualification, license or permit of or with,
any court or governmental agency, body or administrative agency,
domestic or foreign, is required to be obtained or made by the Company
for the execution, delivery and performance by the Company of the
Operative Documents, including the consummation of any of the
transactions contemplated thereby, except (x) such as have been or will
be obtained or made on or prior to the time of purchase, including
qualification of the Indenture under the Trust Indenture Act, in
connection with the issuance of the Debentures, (y) such as may be
required by the NASD, or (z) those for which the failure to obtain
would not reasonably be expected, either individually or in the
aggregate, (1) to have a Material Adverse Effect or (2) to interfere
with or adversely affect the issuance of the Debentures in any
jurisdiction or adversely affect the consummation of the transactions
contemplated by any of the Operative Documents. No consents or waivers
from any other person or entity are required for the execution,
delivery and performance of this Agreement or any of the other
Operative Documents or the consummation of any of the transactions
contemplated thereby, other than such consents and waivers as have been
obtained or will be obtained prior to the time of purchase, except for
those consents or waivers, the failure of which to obtain would not,
either individually or in the aggregate, (1) have a Material Adverse
Effect or (2) interfere with or adversely affect the issuance of the
Debentures in any jurisdiction or adversely affect the consummation of
the transactions contemplated by any of the Operative Documents.
(o) Except as set forth in the Registration Statement and
Prospectus, there is (A) no action, suit or proceeding before or by any
court, arbitrator or governmental agency, body or official, domestic or
foreign, now pending or, to the knowledge of the Company, threatened or
contemplated to which the Company or any of its subsidiaries is a party
or to which the business, assets or property of such person is subject,
(B) no statute, rule, regulation or order that has been enacted,
adopted or issued or, to the knowledge of the Company, that has been
proposed by any governmental body or agency, domestic or foreign, (C)
no injunction, restraining order or order of any nature by a federal or
state court or foreign court of competent jurisdiction to which the
Company or any of its subsidiaries is subject that (x) in the case of
clause (A) above, if determined adversely to the Company or such
subsidiary, would reasonably be expected, either individually or in the
aggregate, (1) to have a Material Adverse Effect or (2) to interfere
with or adversely affect the issuance of the Debentures in any
jurisdiction or adversely affect the consummation of the transactions
contemplated by any of
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the Operative Documents and (y) in the case of clauses (B) and (C)
above, would reasonably be expected, either individually or in the
aggregate, (1) to have a Material Adverse Effect or (2) to interfere
with or adversely affect the issuance of the Debentures in any
jurisdiction or adversely affect the consummation of the transactions
contemplated by any of the Operative Documents. Every request of any
securities authority or agency of any jurisdiction for additional
information with respect to the Debentures that has been received by
the Company or their counsel prior to the date hereof has been, or will
prior to the time of purchase be, complied with in all material
respects.
(p) Except as set forth in the Registration Statement and
Prospectus, the Company and each Restricted Subsidiary (A) is in
compliance with, or not subject to costs or liabilities under, all
local, state, provincial, federal and foreign laws, regulations, rules
of common law, orders and decrees, as in effect as of the date hereof,
and any present judgments and injunctions issued or promulgated
thereunder relating to pollution or protection of public and employee
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants applicable to it or its business or
operations or ownership or use of its property ("Environmental Laws"),
other than noncompliance or such costs or liabilities that would not
reasonably be expected to have a Material Adverse Effect, and (B)
possesses all permits, licenses or other approvals required under
applicable Environmental Laws, except where the failure to possess any
such permit, license or other approval would not reasonably be expected
to have a Material Adverse Effect.
(q) There are no defects in title to, or encumbrances upon the
leasehold interests in, the oil and gas producing properties of the
Company and its Restricted Subsidiaries or the assets or facilities
used by the Company and its Restricted Subsidiaries in the production
and marketing of oil and gas which would reasonably be expected, either
individually or in the aggregate, to have a Material Adverse Effect.
(r) None of the Company or any of its subsidiaries is an
"investment company" or a company "controlled" by an "investment
company" incorporated in the United States within the meaning of the
Investment Company Act.
(s) The Company maintains 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 its financial statements in conformity with
United States generally accepted accounting principles and to maintain
accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D)
the recorded accountability for its assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
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(t) As of December 31, 2001, neither the Company nor any of
its subsidiaries had any liabilities or obligations, direct or
contingent, which either individually or in the aggregate were material
to the business, condition (financial or otherwise), properties,
results of operations or prospects of the Company and its subsidiaries,
taken as a whole, that were not set forth in the Company's consolidated
balance sheet as of such date or in the notes thereto incorporated by
reference in the Prospectus. Since December 31, 2001, except as set
forth or contemplated by reference in the Prospectus, (a) none of the
Company or any of its subsidiaries has (1) incurred any liabilities or
obligations, direct or contingent, that would reasonably be expected to
have a Material Adverse Effect, or (2) entered into any material
transaction not in the ordinary course of business, (b) there has not
been any event or development in respect of the business or condition
(financial or other) of the Company and its subsidiaries that, either
individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect and (c) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock except in a manner consistent with past
practices.
(u) None of the Company or any of its subsidiaries (or any
agent thereof acting on their behalf other than the Underwriters, as to
whom the Company makes no representation) has taken, and none of them
will take (other than the Underwriters, as to whom the Company makes no
representation), any action that would reasonably be expected to cause
this Agreement or the issuance or sale of the Debentures to violate
Regulations T, U or X of the Board of Governors of the Federal Reserve
System or analogous foreign laws and regulations, in each case as in
effect, or as the same may hereafter be in effect, at the time of
purchase.
(v) Each firm of accountants that has certified or shall
certify the financial statements included or to be included as part of
or incorporated by reference in the Registration Statement and
Prospectus is an independent accountant within the meaning of the Act.
The historical financial statements and the notes thereto included in
or incorporated by reference in the Registration Statement and
Prospectus present fairly in all material respects the consolidated
financial position and results of operations of the Company and its
subsidiaries at the respective dates and for the respective periods
indicated. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles applied on
a consistent basis throughout the periods presented (except as
disclosed in the Registration Statement and Prospectus). The pro forma
financial statements included in or incorporated by reference in the
Registration Statement and Prospectus have been prepared on a basis
consistent with such historical statements, except for the pro forma
adjustments specified therein, and give effect to assumptions made on a
reasonable basis and present fairly in all material respects the
transactions disclosed in the Registration Statement and Prospectus.
The other financial and statistical information and data included in or
incorporated by reference in the Registration Statement and Prospectus
are accurately pre-
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sented in all material respects and prepared on a basis consistent with
the financial statements and the books and records of the Company and
its subsidiaries.
(w) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company or any
subsidiaries and any other person other than the Underwriters that
would give rise to a valid claim against the Company, any of its
subsidiaries or the Underwriters for a brokerage commission, finder's
fee or like payment in connection with the issuance, purchase and sale
of the Debentures.
(x) The statistical and market-related data and
forward-looking statements (within the meaning of Section 27A of the
Act and Section 21E of the Exchange Act) included in the Registration
Statement and Prospectus are based on or derived from sources that the
Company believes to be reliable and accurate in all material respects
and represent their good faith estimates that are made on the basis of
data derived from such sources.
(y) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters pursuant
to, or in connection with, this Agreement shall be deemed to be a
representation and warranty by the Company to the Underwriters as to
the matters covered by such certificate.
(z) The Debentures constitute unsecured and unsubordinated
obligations of the Company and rank pari passu without any preference
among themselves; the Debentures rank pari passu with all other
unsecured and unsubordinated debt obligations of the Company.
4. Certain Covenants of the Company: The Company hereby
agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Debentures for offering and
sale under the securities or blue sky laws of such states as you may
designate and to maintain such qualification in effect as long as
required for the distribution of the Debentures, provided that the
Company shall not be required to qualify as a foreign corporation or to
consent to the service of process under the laws of any such state
(except service of process with respect to the offering and sale of the
Debentures); and to promptly advise you of the receipt by the Company
of any notification with respect to the suspension of the qualification
of the Debentures for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(b) to prepare the Prospectus in substantially the form of the
Preliminary Prospectus with such changes as are reasonably approved by
the Underwriters and file such Prospectus with the Commission pursuant
to Rule 424(b) under the Act, on or before the second business day
following the date of this Agreement (or such earlier time as may be
required by the Act), and to make available to the Underwriters in New
York City, as soon as practicable and from time to time to furnish to
the Underwriters,
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as many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement relating to the Debentures) as the Underwriters may
reasonably request for the purposes contemplated by the Act; in case
any Underwriter is required to deliver a prospectus within the
nine-month period referred to in Section 10(a)(3) of the Act in
connection with the sale of the Debentures, the Company will prepare
promptly upon request, but at the expense of such Underwriter, such
amendment or amendments to the Registration Statement and such
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to
confirm such advice in writing when any post-effective amendment
thereto becomes effective;
(d) for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Debentures, to advise you
promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement
or Prospectus or for additional information with respect thereto, or of
notice of institution of proceedings for or the entry of a stop order
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of
the Registration Statement, to make every reasonable effort to obtain
the lifting or removal of such order as soon as possible; for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Debentures, to advise you promptly of any
proposal to amend or supplement the Registration Statement or
Prospectus including by filing any documents that would be incorporated
therein by reference, to furnish you a draft of such proposed amendment
in advance of such filing and to file no such amendment or supplement
to which you shall reasonably object in writing unless the Company is
required by law to make such filing;
(e) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Debentures,
and to promptly notify you of such filing;
(f) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act;
(g) to advise the Underwriters promptly of the happening of
any event known to the Company within the time during which a
prospectus relating to the Debentures is required to be delivered under
the Act which, in the judgment of the Company, would require the making
of any change in the Prospectus then being used, or in the information
incorporated therein by reference, so that the Prospectus would not
-11-
include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading, and, during
such time, to prepare and furnish, at the Company's expense, to the
Underwriters promptly such amendments or supplements to such Prospectus
as may be necessary to reflect any such change and to furnish to you a
copy of such proposed amendment or supplement before filing any such
amendment or supplement with the Commission;
(h) to make generally available to its security holders (as
provided in Rule 158(b) under the Act) an earnings statement of the
Company (which will satisfy the provisions of Section 11(a) of the Act)
covering a period of twelve months beginning after the effective date
of the Registration Statement (as defined in Rule 158(c) under Act) as
soon as is reasonably practicable after the termination of such
twelve-month period but not later than fifteen months after the end of
the Company's current fiscal quarter;
(i) to apply the net proceeds from the sale of the Debentures
in the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
(j) to pay all costs, expenses, fees and taxes (other than any
transfer taxes and fees and disbursements of counsel for the
Underwriters except as set forth under Section 5 hereof and (iii)
below) incident to and in connection with (i) the preparation and
filing of the Registration Statement, each Preliminary Prospectus, the
Prospectus, and any amendments or supplements thereto, and the printing
and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the
preparation, issuance, execution, authentication and delivery of the
Debentures, (iii) the qualification of the Debentures for offering and
sale under state laws (including the reasonable legal fees and filing
fees and other disbursements of counsel for the Underwriters) and the
printing and furnishing of copies of any blue sky surveys to the
Underwriters and to dealers, (iv) any fees payable to investment rating
agencies with respect to the Debentures, (v) the approval of the
Debentures by DTC for "book entry" transfer, (vi) the fees and expenses
of the Trustee and its counsel in accordance with the Indenture and
(vii) the performance of the Company's other obligations hereunder
including, but not limited to, the fees, disbursements and expenses of
the Company's counsel and accountants; and
(k) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement and
during the period referred to in paragraph (d) above, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of
the Exchange Act.
5. Reimbursement of Underwriters' Expenses: If the Debentures
are not delivered for any reason other than the termination of this Agreement
pursuant to clause (iii), (iv) or (v) of Section 7 or the first two paragraphs
of Section 8 hereof or the default by one or
-12-
more of the Underwriters in its or their respective obligations hereunder, the
Company shall, in addition to paying the amounts described in Section 4(j)
hereof, reimburse the Underwriters for all of their reasonable out-of-pocket
expenses, including the fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations: The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company on the date hereof and
at the time of purchase as set forth below, the performance by the Company of
its obligations hereunder and to the following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase
an opinion of (i) Mayer, Brown, Xxxx & Maw, counsel for the Company
substantially in the form of Exhibit A hereto, addressed to the
Underwriters and dated the time of purchase, with reproduced copies
thereof for each of the other Underwriters.
(b) You shall have received from each of KPMG LLP and Xxxxxx
Xxxxxxxx LLP letters dated, respectively, as of the date of this
Agreement and the time of purchase and addressed to the Underwriters
(with reproduced copies for each of the other Underwriters) in the
forms heretofore approved by Banc of America Securities LLC and UBS
Warburg LLC and counsel to the Underwriters.
(c) You shall have received at the time of purchase the
favorable opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Underwriters, dated the time of purchase, covering such matters as are
customarily covered in such opinions.
(d) All filings with the Commission required by Rule 424 under
the Act to have been filed by the time of purchase shall have been made
within the applicable time period prescribed for such filing by Rule
424.
(e) Prior to the time of purchase, (i) no stop order with
respect to the effectiveness of the Registration Statement shall have
been issued under the Act or proceedings initiated under Section 8(d)
or 8(e) of the Act; (ii) the Registration Statement and all amendments
thereto filed after the date hereof, if any, shall not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and (iii) the Prospectus and all amendments or
supplements thereto filed after the date hereof, if any, shall not
contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
are made, not misleading.
(f) Between the time of execution of this Agreement and the
time of purchase no material and unfavorable change, financial or
otherwise (other than as referred to in the Registration Statement and
Prospectus), in the business, condition or prospects of the Company and
its subsidiaries taken as a whole shall occur or become known.
-13-
(g) The Company will, at the time of purchase, deliver to you
a certificate of two of its authorized officers to the effect that the
representations and warranties of the Company contained in this
Agreement shall be true and correct, or true and correct in all
material respects where such representations and warranties are not
qualified by materiality or Material Adverse Effect, on the date of
this Agreement and, in each case after giving effect to the
transactions contemplated hereby, at the time of purchase, except that
if a representation and warranty is made as of a specific date, and
such date is expressly referred to therein, such representation and
warranty shall be true and correct (or true and correct in all material
respects, as applicable) as of such date, and that the Company shall
have performed such of its obligations under this Agreement as are to
be performed at or before the time of purchase and the conditions set
forth in paragraph (e) of this Section 6 have been met.
(h) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
time of purchase as you may reasonably request.
(i) The Debentures shall have initially been assigned ratings
of "BBB" and "Baa2" (with negative watch) by Standard & Poor's Rating
Services and Xxxxx'x Investors Service, Inc., respectively, and no such
rating (or other debt rating of the Company) shall have been downgraded
or placed on any "watch list" for possible downgrading as of or prior
to the time of purchase.
(j) All agreements set forth in the representation letter to
the Company to DTC relating to the approval of the Debentures by DTC
for "book-entry" transfer shall have been complied with.
7. Effective Date of Agreement; Termination: This Agreement
shall become effective when the parties hereto have executed and delivered this
Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination by you at any time prior to the time of purchase, if
prior to such time (i) the Company shall have failed, refused or been unable to
perform in any material respect any agreement on its part to be performed under
this Agreement when and as required, (ii) any other condition to the obligations
of the Underwriters under this Agreement to be fulfilled by the Company pursuant
to Section 6 is not fulfilled when and as required in any material respect,
(iii) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended
or limitations or minimum prices shall have been established on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq National Market, (iv)
a general banking moratorium shall have been declared either by the United
States or New York State authorities, or if there has been a material disruption
in securities settlement or clearance services in the United States, or (v) the
United States shall have declared war in accordance with its constitutional
processes or there
-14-
shall have occurred any material outbreak or escalation of hostilities or other
national or international calamity or crisis of such magnitude in its effect on
the financial markets of the United States as, in your judgment, to make it
impracticable to market the Debentures.
If you elect to terminate this Agreement as provided in this
Section 7, the Company and each other Underwriter shall be notified promptly by
letter or telegram.
If the sale to the Underwriters of the Debentures, as
contemplated by this Agreement, is not carried out by the Underwriters for any
reason permitted under this Agreement or if such sale is not carried out because
the Company shall be unable to comply with any of the terms of this Agreement,
the Company shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 4(j), 5 and 9 hereof), and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. Increase in Underwriters' Commitments: Subject to Sections
6 and 7, if any Underwriter shall default in its obligation to take up and pay
for the Debentures to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the aggregate principal amount of Debentures which all
Underwriters so defaulting shall have agreed but failed to take up and pay for
does not exceed 10% of the total aggregate principal amount of Debentures, the
non-defaulting Underwriters shall take up and pay for (in addition to the
aggregate number of Debentures they are obligated to purchase pursuant to
Section 1 hereof) the aggregate principal amount of Debentures agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such
Debentures shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amount or amounts as you may designate with the consent of
each Underwriter so designated, or in the event no such designation is made,
such Debentures shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate principal amount of
Debentures set opposite the names of such non-defaulting Underwriters in
Schedule A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Debentures hereunder unless all of the Debentures are
purchased by the Underwriters (or by substituted Underwriters selected by you
with the approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
-15-
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 8 with like effect as
if such substituted Underwriter had originally been named in Schedule A.
If the aggregate principal amount of Debentures which the
defaulting Underwriter or Underwriters agreed to purchase exceeds 10% of the
total principal amount of Debentures which all Underwriters agreed to purchase
hereunder, and if neither the non-defaulting Underwriters nor the Company shall
make arrangements within the five business day period stated above for the
purchase of all the Debentures which the defaulting Underwriter or Underwriters
agreed to purchase hereunder, this Agreement shall be terminated without further
act or deed and without any liability on the part of the Company to any
non-defaulting Underwriter and without any liability on the part of any
non-defaulting Underwriter to the Company. Nothing in this paragraph, and no
action taken hereunder, shall relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
9. Indemnity and Contribution: (a) The Company agrees to
indemnify and hold harmless each Underwriter, its partners, directors and
officers, and any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all the foregoing persons from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, any such Underwriter or person may incur under the Act,
the Exchange Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or in a Prospectus (the term "Prospectus" for
the purpose of this Section 9 being deemed to include any Preliminary
Prospectus, the Prospectus and the Prospectus as amended or supplemented by the
Company), or arises out of or is based upon any omission or alleged omission to
state a material fact required to be stated in either such Registration
Statement or Prospectus or necessary to make the statements made therein not
misleading, except insofar as any such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in and in conformity with information furnished in
writing by or on behalf of any Underwriter through you to the Company expressly
for use with reference to such Underwriter in such Registration Statement or
such Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information required
to be stated in such Registration Statement or Prospectus or necessary to make
such information not misleading.
If any action, suit or proceeding (together, a "Proceeding")
is brought against an Underwriter or any such person in respect of which
indemnity may be sought against the Company pursuant to the foregoing paragraph,
such Underwriter or such person shall promptly notify the Company in writing of
the institution of such Proceeding and the Company shall assume the defense of
such Proceeding, including the employment of counsel
-16-
reasonably satisfactory to such indemnified party and payment of all fees and
expenses, provided, however, that the omission to so notify the Company shall
not relieve the Company from any liability which the Company may have to any
Underwriter or any such person or otherwise, except to the extent that it has
been prejudiced in any material respect by such omission to so notify. Such
Underwriter or controlling person shall have the right to employ its or their
own counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of such Underwriter or such controlling person unless (i) the
employment of such counsel shall have been authorized in writing by the Company
in connection with the defense of such Proceeding or (ii) the Company shall not
have, within a reasonable period of time after notice of the Proceeding,
employed counsel to have charge of the defense of such Proceeding or (iii) the
named parties to such Proceeding include both the Company and such Underwriter
or controlling person and such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to the
Company (in which case the Company shall not have the right to direct nor any
obligation to assume the defense of such Proceeding on behalf of the indemnified
party or parties, but the Company may employ counsel and participate in the
defense thereof but the fees and expenses of such counsel shall be at the
expense of the Company), in any of which events such fees and expenses shall be
borne by the Company and paid as and to the extent reasonably incurred (it being
understood, however, that the Company shall not be liable for the expenses of
more than one separate counsel (in addition to any appropriate local counsel) in
any one Proceeding or series of similar or related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to such
Proceeding). Anything in this paragraph to the contrary notwithstanding, the
Company shall not be liable for any settlement of any such Proceeding effected
without its written consent but if settled with the written consent of the
Company, the Company agrees to indemnify and hold harmless any Underwriter and
any such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, its directors and officers and any
person who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the
-17-
successors and assigns of all the foregoing persons from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person may
incur under the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
and in conformity with information furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use with reference to such
Underwriter in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or in a
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such information required to be
stated in such Registration Statement or such Prospectus or necessary to make
such information not misleading.
If any Proceeding is brought against the Company or any such
person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Company or such person shall promptly
notify such Underwriter in writing of the institution of such Proceeding and
such Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or any such person or otherwise,
except to the extent that it has been prejudiced in any material respect by such
omission to so notify. The Company or such person shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Company or such person unless (i) the
employment of such counsel shall have been authorized in writing by such
Underwriter in connection with the defense of such Proceeding or (ii) such
Underwriter shall not have, within a reasonable period of time after notice of
the Proceeding, employed counsel to have charge of the defense of such
Proceeding or (iii) the named parties to such Proceeding include both the
Company and such Underwriter or controlling person and such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to or in conflict with those
available to such Underwriter (in which case such Underwriter shall not have the
right to direct nor the obligation to assume the defense of such Proceeding on
behalf of the indemnified party or parties, but such Underwriter may employ
counsel and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), in any of which events
such fees and expenses shall be borne by such Underwriter and paid as and to the
extent reasonably incurred (it being understood, however, that such Underwriter
shall not be liable for the expenses of more than one separate counsel in
addition to any appropriate local counsel in any one Proceeding or series of
similar or related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). Anything in this
paragraph to the contrary notwithstanding, no Underwriter shall be liable for
any settlement of any such Proceeding effected without the written consent of
such Underwriter but if settled with the written consent of such Underwriter,
such Underwriter agrees to indemnify and hold harmless the Company and any such
person from and against any loss or liability by reason of
-18-
such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding.
(c) If the indemnification provided for in this Section 9 is
held to be unavailable to an indemnified party under subsections (a) and (b) of
this Section 9 in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (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 Debentures or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities or
claims, 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 shall be deemed to be in the same respective proportion as the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the underwriting
discounts and commissions received by the Underwriters. The relative fault of
the Company on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
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 amount paid or payable by a
party as a result of the losses, claims, damages and liabilities referred to in
this subsection shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(d) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of
-19-
allocation that does not take account of the equitable considerations referred
to in subsection (c) above. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Debentures underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damage which such Underwriter has otherwise been required to pay
by reason of such untrue statement or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriter's obligations to contribute pursuant to this Section 9 are several
in proportion to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any Underwriter, its partners,
directors and officers or any person (including each partner, officer or
director of such person) who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf of
the Company, its directors and officers or any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and shall survive the issuance and delivery of the Debentures. In addition, the
agreements contained in Sections 4(j), 5, 9, 10 and 12 shall survive the
termination of this Agreement, including pursuant to Section 7. The Company and
each Underwriter agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Company, against any of the
Company's officers or directors, in connection with the issuance and sale of the
Debentures, or in connection with the Registration Statement or Prospectus.
10. Underwriters' Information. The Company and the
Underwriters severally acknowledge that the statements with respect to the offer
and sale of the Debentures set forth in the fourth and fifth paragraphs and
ninth paragraph (as it applies to First Union Securities, Inc.(it being
understood that First Union Securities, Inc. shall be solely responsible for
such information)) under the caption "Underwriting" in the Preliminary
Prospectus and the Prospectus (to the extent such statements relate to the
Underwriters) constitute the only information furnished in writing by the
Underwriters expressly for use in the Preliminary Prospectus and Prospectus.
11. Notices: Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing and, if to the
Underwriters, shall be mailed, delivered, or telexed, telegraphed or telecopied
and confirmed in writing to Banc of America Securities LLC, Bank of America
Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention:
Transaction Management, and UBS Warburg LLC, 000 Xxxxxxxxxx Xxxx., Xxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Syndicate Department and, if to the Company, shall
be mailed, delivered, or telexed, telegraphed or telecopied to the Company and
confirmed in writing at the offices of the Company at 00 Xxxxx Xxxxxxxx, Xxxxx
0000, Xxxxxxxx Xxxx,
-20-
Oklahoma 73102-9260, Attention: General Counsel (telephone: (000) 000-0000,
telecopy: (000) 000-0000.
12. Construction: This Agreement shall be construed in
accordance with the laws of the State of New York and each of the parties hereto
consents to the jurisdiction of the courts of the State of New York. Each of the
parties hereto agrees to submit to the jurisdiction of the courts of the State
of New York and the U.S. federal courts sitting in The City of New York for the
purposes of any suit, action or proceeding arising out of or relating to this
Agreement. Nothing herein shall affect the right to serve process in any other
manner permitted by law or shall limit the right of the Underwriters to bring
proceedings against the Company in the courts of any other jurisdiction.
13. Parties at Interest: The Agreement herein set forth has
been and is made solely for the benefit of the Underwriters and the Company and,
to the extent provided in Section 9 hereof, the controlling persons, directors
and officers referred to in such section, and their respective successors,
assigns, executors and administrators. No other person, partnership, heirs,
personal representatives, association or corporation (including a purchaser, as
such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
14. Counterparts: This Agreement may be signed by the parties
in one or more counterparts which together shall constitute one and the same
agreement.
15. Successors and Assigns: This Agreement shall be binding
upon the Underwriters and the Company and their successors and assigns and any
successor or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
-21-
If the foregoing correctly sets forth the understanding
between the Company and the Underwriters, please so indicate in the space
provided below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement between the Company and the Underwriters,
severally.
Very truly yours,
DEVON ENERGY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President - Finance
Accepted and agreed to as of the date first above written, on behalf of
themselves and the other several Underwriters named in Schedule A
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Principal
By: UBS WARBURG LLC
By: /s/ Xxxxxxxxxxx Xxxxxxxx
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Executive Director Capital Markets
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Director
-22-
SCHEDULE A
Principal Amount
Underwriter of Debentures
----------- ----------------
Banc of America Securities LLC.................................. $ 327,500,000
UBS Warburg LLC................................................. 327,500,000
ABN AMRO Incorporated........................................... 37,500,000
BMO Xxxxxxx Xxxxx Corp.......................................... 37,500,000
Credit Suisse First Boston Corporation.......................... 37,500,000
Deutsche Banc Alex. Xxxxx Inc................................... 37,500,000
X.X. Xxxxxx Securities Inc...................................... 37,500,000
RBC Dominion Securities Corporation............................. 37,500,000
Xxxxxxx Xxxxx Xxxxxx Inc........................................ 37,500,000
First Union Securities, Inc..................................... 37,500,000
BNY Capital Markets, Inc........................................ 15,000,000
Credit Lyonnais Securities (USA) Inc............................ 15,000,000
Tokyo-Mitsubishi International plc.............................. 15,000,000
--------------
Total.......................................... $1,000,000,000
SCHEDULE B
Restricted Subsidiary Jurisdiction of Incorporation or Organization
--------------------- ---------------------------------------------
Devon Energy Corporation (Oklahoma) Oklahoma
Devon Energy Production Company L.P. Oklahoma
Devon Financing Corporation, U.L.C. Nova Scotia
Devon SFS Operating Inc. Delaware
Devon Energy Operating Company, L.P. Delaware
(formerly Xxxxxxxx Energy Company L.P.)
MND Exploration & Production, Inc. Delaware
Northstar Energy Corporation Alberta
Devon Canada Alberta
(formerly Northstar Energy partnership)
Numac Energy Inc. Alberta
Devon ARL Corporation Alberta
(formerly Xxxxxxxx Resources Ltd.)
EXHIBIT A
FORM OF OPINION OF COUNSEL TO THE COMPANY
The opinion of Mayer, Brown, Xxxx & Maw, counsel for the
Company (capitalized terms not otherwise defined herein shall have the meanings
provided in the
Underwriting Agreement, to which this is an Exhibit), to be
delivered pursuant to Section 6(a) of the
Underwriting Agreement shall be to the
effect that:
(i) Each of the Company and Devon Energy Production Company
L.P., Devon SFS Operating Inc. and Devon Energy Corporation (Oklahoma)
(collectively, the "U.S. Restricted Subsidiaries"): (a) is a
corporation, partnership or other entity duly incorporated or formed,
as the case may be, and validly existing and in good standing under the
laws of the jurisdiction of its incorporation, organization or
formation; (b) to such counsel's knowledge, has all requisite corporate
or other power and authority necessary to carry on its business as it
is currently being conducted and as described in the Registration
Statement and the Prospectus and to own, lease, license and operate its
respective properties in accordance with its business as currently
conducted; and (c) is qualified to do business and is in good standing
in all other jurisdictions identified by such counsel on a schedule
attached to its opinion and based solely on certificates of good
standing from such identified jurisdictions.
(ii) The Company has all requisite corporate power and
authority to execute, deliver and perform all of its obligations under
the Operative Documents and to consummate the transactions contemplated
by the Operative Documents to be consummated on its part.
(iii) The
Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company.
(iv) The Indenture has been duly and validly authorized,
executed and delivered by the Company and (assuming the due
authorization, execution and delivery thereof by the Trustee)
constitutes a legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
(v) The Debentures, when issued, authenticated and delivered
by the Company in accordance with the terms of the
Underwriting
Agreement and Indenture, will constitute legal, valid and binding
obligations of the Company, entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws affecting the
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enforcement of creditors' rights generally and by general principles of
equity and the discretion of the court before which any proceeding
therefor may be brought.
(vi) the Registration Statement and the Prospectus (except as
to the financial statements and schedules and other financial data
contained or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture Act.
(vii) the Registration Statement has become effective under
the Act and the Indenture has been qualified under the Trust Indenture
Act and, to the best of such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened under the
Act; and any required filing of the Prospectus and any supplement
thereto pursuant to Rule 424 under the Act has been made in the manner
and within the time period required by such Rule 424;
(viii) The execution, delivery and performance by the Company
of the Operative Documents, including the consummation of the offer and
sale of the Debentures, does not or will not violate, conflict with or
constitute a breach of any of the terms or provisions of, or a default
under (or an event that with notice or the lapse of time, or both,
would constitute a default), or require consent under, or result in the
creation or imposition of a lien, charge or encumbrance on any property
or assets of the Company or any Restricted Subsidiary or an
acceleration of any indebtedness of the Company or any Restricted
Subsidiary pursuant to, (i) the charter, bylaws or other constitutive
documents of the Company or any U.S. Restricted Subsidiary, (ii) to the
knowledge of such counsel, any Agreements and Instruments filed as an
exhibit to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001, together with any amendments to such
Agreements or Instruments, (iii) to the knowledge of such counsel, any
law, statute, rule or regulation applicable to the Company or any
Restricted Subsidiary or its respective assets or properties typical,
in such counsel's experience, for transactions contemplated by the
Operative Documents and assuming the accuracy of the representations
and warranties of the Company and the Underwriters in the
Underwriting
Agreement and the due performance by the Company and the Underwriters
thereof or (iv) to the knowledge of such counsel, any judgment, order
or decree of any domestic or foreign court or governmental agency or
authority having jurisdiction over the Company or any U.S. Restricted
Subsidiary or their respective assets or properties.
(ix) No consent, approval, authorization or order of, or
filing, registration, qualification, license or permit of or with, any
United States court or governmental agency, body or administrative
agency is required to be obtained or made by the Company in connection
with the issue or sale of the Debentures by the Company as contemplated
by the
Underwriting Agreement, except (x) such as have been obtained or
made on or prior to the date hereof, (y) such as may be required under
state securities and blue sky laws, or (z) that would not reasonably be
expected, either individually or
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in the aggregate (1) to have a Material Adverse Effect or (2) to
interfere with or adversely affect the issuance of the Debentures in
any jurisdiction or adversely affect the consummation of the
transactions contemplated by any of the Operative Documents.
(x) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(xi) Each of the Debentures and the Indenture conforms as to
legal matters in all material respects to the description thereof
contained in the Prospectus.
(xii) Each document filed under the Exchange Act and
incorporated by reference in the Registration Statement (other than the
financial statements and related schedules included therein, as to
which such counsel need not comment), when they were filed with the
Commission, appeared on their face to comply as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations promulgated thereunder.
In addition, such counsel shall state that they have
participated in discussions with your representatives, representatives of the
Company and their counsel and independent public accountants concerning the
preparation of the Registration Statement and Prospectus. Such counsel shall
state that, although they are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of any of the
statements in the Registration Statement and Prospectus (except to the extent
specified elsewhere in such letter or with reference to such counsel), no facts
have come to their attention that lead such counsel to believe that, at the time
the Registration Statement became effective, the Registration Statement (other
than the financial statements and related schedules and other financial data
contained or incorporated therein as to which such counsel need express no
belief) contained any untrue statement of material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus (other than the financial
statements and related schedules and other financial data contained or
incorporated therein as to which such counsel need express no belief), as of its
date or as of the time of purchase, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
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