EXHIBIT 1.1
MARATHON OIL CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
, 200__
[NAME OF UNDERWRITER(S)]
[ADDITIONAL UNDERWRITER]
As Representatives of the several Underwriters,
[ADDRESS(ES) OF UNDERWRITER(S)]
Ladies and Gentlemen:
From time to time Marathon Oil Corporation, a Delaware corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in Schedule II to
such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriter and the principal
2
amount of such Designated Securities to be purchased by each Underwriter and
shall set forth the date, time and manner of delivery of such Designated
Securities and payment therefor. The Pricing Agreement shall also specify (to
the extent not set forth in the Indenture and the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to the Representatives, have been
declared effective by the Commission in such form; no other document with
respect to such registration statement and no other document required to be
incorporated by reference therein has heretofore been filed or transmitted for
filing with the Commission (other than documents filed prior to the date hereof
and documents permitted to be filed pursuant to Section 5(a) hereof); and no
stop order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Securities Act of 1933, as amended (the
"Act"), being hereinafter called a "Preliminary Prospectus"); the various parts
of such registration statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became effective
but excluding the Forms T-1 included as exhibits thereto, each as amended at the
time such part of the registration statement became effective, being hereinafter
called the "Registration Statement"; if it is contemplated, at the time the
Pricing Agreement is executed, that a registration statement or a post-effective
amendment will be filed pursuant to Rule 462(b) or Rule 462(d) under the Act,
the term "Registration Statement" as used in this Agreement includes such
registration statement; the prospectus relating to the Securities, in the form
in which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter called
the "Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company filed with
the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
3
after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the form in
which it is first used to confirm sales of the Designated Securities and filed
with the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof (such Prospectus also called, the "Final Prospectus"),
including any documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the applicable requirements of the Act or
the Exchange Act, as applicable, and the applicable rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; PROVIDED, HOWEVER,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Final Prospectus relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the applicable requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the applicable rules and regulations of the Commission thereunder and
do not and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as to
the Final Prospectus, 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; PROVIDED, HOWEVER, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter of Designated Securities through the Representatives expressly
for use in the Final Prospectus relating to such Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Final Prospectus any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth in or
contemplated by the Final Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the Final
Prospectus, there has not been any material change in
4
the capital stock or long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development likely to result in a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set forth
in or contemplated by the Final Prospectus;
(e) 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 all
requisite corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Final Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities, such Designated Securities
will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has been duly
authorized by the Company and is duly qualified under the Trust Indenture Act
and, at the Time of Delivery (as defined in Section 4 hereof) for such
Designated Securities, the Indenture will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or transfer and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Indenture and the Designated Securities will conform to the descriptions
thereof contained in the Final Prospectus with respect to such Designated
Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the transactions
herein and therein contemplated (i) will not result in any violation of the
provisions of the Restated Certificate of Incorporation or By-laws of the
Company, (ii) will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, except for such conflicts,
breaches, violations or defaults which would not, individually or in the
aggregate, have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole and (iii) will not result in any violation of the
provisions of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties, except for such violations which would not, individually or in the
aggregate, have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries,
5
taken as a whole; and no consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Securities or the consummation
by the Company of the transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture, except such as have been, or will have been prior to
the Time of Delivery, obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters; and
(i) Other than as set forth in the Final Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any
of its subsidiaries, would have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened by governmental authorities or by
others.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Final Prospectus.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours prior
notice to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by electronic funds
transfer in the funds specified in such Pricing Agreement, all at the place and
time and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Final Prospectus in relation to the applicable
Designated Securities in a form approved by the Representatives and to file such
Final Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be required by
Rule 424(b); to make no further amendment or any supplement to the Registration
Statement or Final Prospectus after the date of the Pricing Agreement relating
to such Designated Securities and prior to the Time of Delivery for such
Designated Securities to which the Representatives for such Designated
Securities shall reasonably object promptly after reasonable notice thereof; to
advise the Representatives promptly of any such
6
amendment or supplement after such Time of Delivery and to furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14, or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Designated Securities, and during
such same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Designated Securities, of the suspension of the
qualification of such Designated Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Designated
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of such Designated Securities,
PROVIDED that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction or to subject itself to taxation in any
jurisdiction;
(c) To furnish the Underwriters with copies of the Final Prospectus in
such quantities as the Representatives may from time to time reasonably request,
and, if the delivery of a prospectus is required at any time in connection with
the offering or sale of the Designated Securities and if at such time any event
shall have occurred as a result of which the Final Prospectus would include an
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 when such Final Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same period to
amend or supplement the Final Prospectus or to file under the Exchange Act any
document incorporated by reference in the Final Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended Final
Prospectus or a supplement to the Final Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158 (c)), an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the
7
rules and regulations of the Commission thereunder (including at the option of
the Company Rule 158); and
(e) Except for debt securities which the Company has advised the
Representatives in writing prior to the date of the Pricing Agreement for such
Designated Securities, during the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to the Time of Delivery
for such Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company which mature more than
one year after such Time of Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Final Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of any Trustee and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities; and (viii) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as otherwise agreed by the Company and the Underwriters and except as
specifically provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Final Prospectus in relation to the applicable Designated
Securities shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time
8
period prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for such
Designated Securities, with respect to the incorporation of the Company, the
validity of the Indenture, the Designated Securities, the Registration
Statement, the Final Prospectus and other related matters as the Representatives
may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) The Company shall have requested and caused counsel for the
Company to furnish to the Representatives written opinions, dated the Time of
Delivery for such Designated Securities, in substantially the form attached
hereto as Annexes III and IV, which opinions must be in form and substance
reasonably satisfactory to the Representatives.
(d) At the Time of Delivery for such Designated Securities, the
independent accountants of the Company who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a letter, dated such date, to the effect set forth in Annex II
hereto and as to such other matters as the Representatives may reasonably
request and in form and substance reasonably satisfactory to the
Representatives;
(e) On or after the date and time that the Pricing Agreement relating
to the Designated Securities is executed by the parties thereto, there shall not
have been any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, taken as a
whole, except as set forth in or contemplated in the Final Prospectus the effect
of which is, in the judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or delivery
of the Designated Securities.
(f) On or after the date and time that the Pricing Agreement relating
to the Designated Securities is executed by the parties thereto (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(g) On or after the date and time that the Pricing Agreement relating
to the Designated Securities is executed by the parties thereto there shall not
have occurred any of the following: (i) trading in the Company's Common Stock
shall have been suspended by the Commission or The New York Stock Exchange, or
there shall have been a suspension or
9
material limitation in trading in securities generally on The New York Stock
Exchange or minimum prices shall have been established on such exchange; (ii) a
general moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities or a material disruption of
securities settlement or clearance services; or (iii) any outbreak or escalation
of major hostilities in which the United States is involved, any declaration of
war by Congress or any similar substantial national or international calamity or
emergency, if the effect of any such event specified in this clause in the
judgment of the Representatives makes it impractical or inadvisable to proceed
with the public offering or the delivery of the Designated Securities;
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company reasonably satisfactory
to the Representatives as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior
to such Time of Delivery, as to the matters set forth in subsections (a) and (e)
of this Section and as to such other matters as the Representatives may
reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, the
applicable Pricing Agreement and all obligations of the Underwriters thereunder
may be canceled at, or at any time prior to, the Time of Delivery by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be
delivered at the time and place specified in the Pricing Agreement relating to
the Designated Securities.
8. (a) The Company will indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Final Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any such document in reliance upon and in conformity with written
information furnished to the Company by any Underwriter
10
through the Representatives, if any, specifically for use therein; PROVIDED,
FURTHER, that the foregoing indemnification, to the extent it relates to any
actual or alleged untrue statement or omission made in or from any Preliminary
Prospectus but eliminated or remedied in the Final Prospectus, shall not inure
to the benefit of any Underwriter from whom the person asserting such untrue
statement or omission purchased offered Securities if a copy of the Final
Prospectus (excluding documents incorporated therein by reference) was not sent
or given to such person at or prior to the written confirmation of the sale of
such offered Securities to such person if the Company has previously furnished
copies thereof to such Underwriter.
(b) Each Underwriter will, severally and not jointly, indemnify and
hold harmless the Company and each of its directors, officers and each person,
if any, who controls the Company within the meaning of either Section 15 of the
Act or Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Final
Prospectus and any other prospectus relating to the Securities, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Final Prospectus and any other prospectus relating to the Securities, or any
such amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the failure to so notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party, and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. Notwithstanding the foregoing, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the
11
indemnified party would present such counsel with a conflict of interest or (ii)
the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. No indemnifying party shall,
in connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all indemnified
parties, which firm shall be designated in writing by the Representatives if the
indemnified parties under this Section 8 consist of any Underwriter or any of
their respective controlling persons, or by the Company, if the indemnified
parties under this Section 8 consist of the Company or any of the Company's
directors, officers or controlling persons. 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 (i) includes an unconditional release
of such indemnified party from all liability arising out of such action or claim
and (ii) does not include a statement as to or an admission of fault,
culpability or failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Underwriters
of the Designated Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by such Underwriters. The relative fault 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 on the one hand or such
Underwriters on the other 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 subsection (d) 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 subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be
12
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have; and the
obligations of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
reasonably satisfactory to the Company to purchase such Designated Securities on
the terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
reasonably satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Company shall have the right to postpone
the Time of Delivery for such Designated Securities for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Final Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Final Prospectus
which the majority in interest of the Underwriters (including the
Representatives) may reasonably determine are thereby necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-tenth of the aggregate principal amount of the
Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing
13
Agreement relating to such Designated Securities and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-tenth of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any nondefaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities. The provisions of
Sections 6 and 8 hereof shall survive the termination or cancellation of this
Agreement.
11. If the sale of the Designated Securities provided for by the
Pricing Agreement is not consummated for any reason (other than (1) a breach by
any Underwriter of its obligations hereunder, (2) a termination pursuant to
Section 9 hereof, or (3) a termination pursuant to the second clause of Section
7(g)(i), Section 7(g)(ii) or Section 7(g)(iii) hereof), the Company will
reimburse the Underwriters severally, through the Representatives, for all
out-of-pocket expenses approved in writing by the Representatives, including
reasonable fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of such
Designated Securities, but the Company shall then be under no further liability
to any Underwriter with respect to such Designated Securities, except that the
provisions of Sections 6 and 8 hereof shall survive. If the sale of the
Designated Securities provided for by the Pricing Agreement is not consummated
due to (1) a breach by any Underwriter of its obligations hereunder, (2) a
termination pursuant to Section 9 hereof or (3) a termination pursuant to the
second clause of Section 7(g)(i), Section 7(g)(ii) or Section 7(g)(iii) hereof,
the Underwriters will be responsible for all out-of-pocket expenses that shall
have been incurred by them in connection with the purchase and sale of the
Designated Securities, except that the provisions of Sections 6 and 8 hereof
shall survive.
14
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to it at 0000 Xxx Xxxxxx Xxxx, Xxxxxxx, Xxxxx
00000-0000, or by facsimile to (000) 000-0000: Attention: Corporate Secretary;
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
15
If the foregoing is in accordance with your understanding, please sign
and return to us [seven] counterparts hereof.
Very truly yours,
Marathon Oil Corporation
By:
--------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[UNDERWRITER]
By:
------------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the applicable Pricing
Agreement.
ANNEX I
PRICING AGREEMENT
, 200__
[Name(s) and Address(es)
of Representative(s)]
As Representatives of the several
Underwriters named in Schedule I
hereto,
Dear Sirs:
Marathon Oil Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated [ ] (the "Underwriting Agreement"), between the
Company on the one hand and [ ] and [ ], as representatives, on the other hand,
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Final Prospectus in Section 2 of the Underwriting Agreement shall be deemed to
be a representation or warranty as of the date of the Underwriting Agreement in
relation to the Final Prospectus (as therein defined), and also a representation
and warranty as of the date of this Pricing Agreement in relation to the Final
Prospectus as amended or supplemented relating to the Designated Securities
which are the subject of this Pricing Agreement. Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
The Representatives designated to act on behalf of the Representatives
and on behalf of each of the Underwriters of the Designated Securities pursuant
to Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
The documents required to be delivered by Section 7 of the
Underwriting Agreement shall be delivered at the office of [ ], counsel for the
Underwriters, at [ ], at the Time of Delivery.
I-2
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us [ ] counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement Among Underwriters, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
Very truly yours,
Marathon Oil Corporation
By:
-------------------------
Name:
Title:
I-3
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[ ]
[ ]
By: [ ]
By:
-----------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the applicable Pricing
Agreement.
SCHEDULE I
SCHEDULE II
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the Company shall
have requested and caused [PricewaterhouseCoopers LLP] to have furnished to the
Representatives, at the Time of Delivery, a letter, dated as of the Time of
Delivery, in form and substance satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable rules and regulations adopted by the
Commission thereunder [and that they have performed a review of the unaudited
interim financial information of the Company for the [ ]-month period ended
[ ], and as at [ ] in accordance with Statement on Auditing
Standards No. 71], and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by
reference in the Registration Statement and the Final Prospectus
and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Act
and the Exchange Act and the related rules and regulations
adopted by the Commission;
(ii) on the basis of: [a reading of the latest
unaudited financial statements made available by the Company and
its subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards No.
71, of the unaudited interim financial information for the
[ ]-month period ended [ ], and as at [ ]
incorporated by reference in the Registration Statement and the
Final Prospectus;] carrying out certain specified procedures (but
not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and executive, finance and audit
committees of the Company and the Subsidiaries; and inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to
[ ], nothing came to their attention which caused them to
believe that:
[(1) any unaudited financial statements included
or incorporated by reference in the Registration Statement
and the Final Prospectus do not comply as to form in all
material respects with applicable accounting requirements of
the Act and with the related rules and regulations adopted
by the Commission with respect to financial statements
included or incorporated by reference in quarterly reports
on Form 10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity
II-2
with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements included or incorporated by reference
in the Registration Statement and the Final Prospectus; ]
(2) with respect to the period subsequent to [
], there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
long-term debt of the Company and its subsidiaries or
capital stock of the Company or decreases in the
stockholders' equity of the Company as compared with the
amounts shown on the [ ] consolidated balance sheet
included or incorporated by reference in the Registration
Statement and the Final Prospectus, or for the period from
[ ] to such specified date there were any decreases,
as compared with the corresponding period in the preceding
year in net revenues or income before income taxes or in
total or per share amounts of net income of the Company and
its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is not
deemed necessary by the Representatives; or
(3) the information included or incorporated by
reference in the Registration Statement and Final Prospectus
in response to Regulation S-K, Item 301 (Selected Financial
Data), Item 302 (Supplementary Financial Information) and
Item 503(d) (Ratio of Earnings to Fixed Charges) is not in
conformity with the applicable disclosure requirements of
Regulation S-K; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of
an accounting, financial or statistical nature (which is limited
to accounting, financial or statistical information derived from
the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the
Final Prospectus [and in Exhibit 12.1 to the Registration
Statement], including the information set forth in the Final
Prospectus, the information included or incorporated by reference
in Items [1, 2, 6, 7 and 11] of the Company's most recently filed
Annual Report on Form 10-K, incorporated by reference in the
Registration Statement and the Final Prospectus; and the
accounting information included in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations"
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q, incorporated by reference in the
Registration Statement and the Final Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding
any questions of legal interpretation.
ANNEX III
FORM OF IN-HOUSE COUNSEL'S OPINION
[ ]
[ ], As Representatives of the several Underwriters
c/o [ ]
Ladies and Gentlemen:
I am the [ ] of Marathon Oil Corporation, a Delaware corporation (the
"Company"). I am furnishing this opinion under Section 7(c) of the Underwriting
Agreement dated [ ] (the "Underwriting Agreement") that is incorporated by
reference into the Pricing Agreement dated [ ] (the "Pricing Agreement") by and
between the Company and the several Underwriters named in Schedule I to the
Pricing Agreement (the "Underwriters"), relating to the issuance and sale by the
Company to the Underwriters of $[ ] aggregate principal amount of [ ]
(the "Securities"). The Company will issue the Securities under an Indenture
(the "Indenture") dated as of [ ] between it and JPMorgan Chase Bank, as
trustee.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333-[ ])
relating to the registration under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance therewith
and the rules and regulations of the Commission thereunder, of securities of the
Company, including the Securities. That registration statement, at the time that
it became effective, including all documents incorporated by reference therein,
is hereinafter referred to as the "Registration Statement," and the Company's
prospectus dated [ ], together with the Company's prospectus supplement dated
[ ],each as filed with the Commission in accordance with Rule 424(b) under the
1933 Act, including all documents incorporated by reference therein, are
hereinafter collectively referred to as the "Prospectus."
I have, or attorneys under my supervision have, examined the originals, or
copies certified or otherwise identified, of the restated certificate of
incorporation and by-laws, each as amended to date, of the Company, the
Registration Statement, the Prospectus, the Underwriting Agreement, the Pricing
Agreement, the Indenture, corporate records of the Company, including minute
books of the Company, certificates of public officials and of representatives of
the Company, oral representations of the Company's employees, statutes and other
instruments and documents, as a basis for the opinions I hereinafter express. In
giving these opinions, I have relied on certificates of representatives of the
Company and of public officials with respect to the accuracy of the factual
matters those certificates cover or contain, and I have assumed that all
signatures on documents I have examined are genuine, all documents submitted to
me as originals are authentic, all documents submitted to me as certified or
photostatic copies conform to the original copies of those documents and those
original copies are authentic.
III-2
On the basis of the foregoing and subject to the assumptions, limitations
and qualifications I set forth herein, I am of the following opinions:
1. The authorized capital stock of the Company is comprised of
550,000,000 shares of common stock, par value $1.00 per share ("Common Stock"),
and 26,000,000 shares of preferred stock, no par value ("Preferred Stock"). [No
shares of Preferred Stock have been issued.] All the issued and outstanding
shares of [Common Stock] [capital stock] have been duly and validly authorized
and issued and are fully paid and nonassessable.
2. Each subsidiary of the Company listed on Annex A hereto (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly incorporated
or formed and is validly existing as a corporation, limited liability company or
limited partnership in good standing under the laws of the jurisdiction of its
incorporation or formation, as the case may be, and each Subsidiary has full
corporate or other power and authority to own its properties and to conduct its
business as described in the Prospectus [as amended or supplemented]. All the
outstanding shares of capital stock or other equity ownership interests of each
of the Subsidiaries which the Prospectus indicates are owned by the Company,
directly or indirectly through one or more Subsidiaries, to my knowledge, after
due inquiry, free and clear of any perfected security interest and any other
material security interest, claim, lien or encumbrance (other than restrictions
on transfer contained in the Company's joint venture agreements).
3. I do not know of (a) any pending or threatened legal or governmental
proceedings involving the Company or any Subsidiary that are required to be
disclosed in the Prospectus, or any amendment or supplement thereto, which are
not disclosed in the Prospectus or (b) any franchise, contract or other document
of a character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required. The statements included or incorporated by reference in the
Prospectus under the headings "Description of [ ]" and "Description of
[ ]" insofar as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or proceedings.
4. The issuance and sale of the Securities, the consummation of any of
the other transactions contemplated by the Pricing Agreement and the compliance
by the Company with the terms of the Pricing Agreement will not conflict with,
or result in a breach or violation of or the imposition of any lien, charge or
encumbrance on any property or assets of the Company or any Subsidiary under,
(i) the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement or instrument to which the Company
or any Subsidiary is a party or bound or to which its or their property is
subject, except for any such conflicts, breaches, violations, liens, charges or
encumbrances as would not, individually or in the aggregate, have a material
adverse effect on the consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a whole or
(ii) to my knowledge, any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any Subsidiary of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or that Subsidiary or any of its
properties, except for such conflicts, breaches or violations which would not,
individually or in the aggregate, have a material adverse effect on the
consolidated financial
III-3
position, stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole.
5. The documents incorporated by reference in the Prospectus as amended
or supplemented (other than (a) the financial statements (including the notes
thereto and the auditor's reports thereon) included or incorporated by reference
therein or omitted therefrom and (b) the other accounting, financial, reserve
engineering and statistical information contained or incorporated by reference
therein or omitted therefrom, as to which I have not been asked to comment), as
of the respective dates on which they became effective or were filed with the
Commission, as the case may be, appear on their face to be appropriately
responsive in all material respects to the requirements of the 1933 Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder.
6. No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
I have participated in conferences with officers and other representatives
of the Company, representatives of the independent public accountants of the
Company and your representatives at which the contents of the Registration
Statement and the Prospectus and related matters were discussed. Although I have
not undertaken to determine independently, and do not assume any responsibility
for, the accuracy, completeness or fairness of the statements the Registration
Statement or the Prospectus contains, I advise you that, on the basis of the
foregoing, no facts have come to my attention that lead me to believe that the
Registration Statement (other than (a) the financial statements and schedules
(including the notes thereto and the auditor's reports thereon) included or
incorporated by reference therein or omitted therefrom and (b) the other
accounting, financial, reserve engineering and statistical information contained
or incorporated by reference therein or omitted therefrom, as to which I have
not been asked to comment, and it being understood that I am making no statement
as to the accuracy of any statement or representation in any exhibit to the
Registration Statement), as of its effective date, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus (other than (a) the financial statements (including the notes thereto
and the auditor's reports thereon) included or incorporated by reference therein
or omitted therefrom and (b) the other accounting, financial, reserve
engineering and statistical information contained or incorporated by reference
therein or omitted therefrom, as to which I have not been asked to comment), as
of its issue date or the date hereof, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In this letter, phrases such as "to my knowledge" and those with equivalent
wording refer to my conscious awareness without any independent investigation.
I am licensed to practice law in the State of Texas. The opinions set forth
above are limited in all respects to matters of the laws of the State of Texas,
the General Corporation Law of the State of Delaware and applicable federal law.
I am providing this opinion in my capacity as _______________ of the Company and
not in my individual capacity a lawyer.
III-4
I am furnishing this letter to you solely for your use in connection with
the transactions consummated on the date hereof under the Pricing Agreement and
may not be relied on by any other person or for any other purpose. This letter
speaks as of the date hereof, and I disclaim any obligation to update it.
Very truly yours,
ANNEX IV
FORM OF OUTSIDE COUNSEL'S OPINION
[ ]
[ ], As Representatives of the several Underwriters
c/o [ ]
Ladies and Gentlemen:
We are furnishing this opinion letter to you at the request of Marathon Oil
Corporation, a Delaware corporation (the "Company"), under Section 7(c) of the
Underwriting Agreement dated [ ] (the "Underwriting Agreement") that is
incorporated by reference into the Pricing Agreement dated [ ] (the "Pricing
Agreement") by and between the Company and the several Underwriters Schedule I
to the Pricing Agreement names (the "Underwriters"), relating to the sale by the
Company to the Underwriters of $[ ] aggregate principal amount of [
] (the "Securities"). The Company will issue the Securities under an Indenture
(the "Indenture") dated as of [ ] between it and JPMorgan Chase Bank, as
trustee.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333-[ ])
relating to the registration under the Securities Act of 1933 (the "1933 Act"),
and the offering thereof from time to time in accordance therewith, including
the Securities. That registration statement, at the time that it became
effective, including all documents filed as part thereof or incorporated by
reference therein, is hereinafter referred to as the "Registration Statement,"
and the Company's prospectus dated [ ], together with the Company's prospectus
supplement dated [ ], each as filed with the Commission in accordance with Rule
424(b) under the 1933 Act, including all documents incorporated by reference
therein, are hereinafter collectively referred to as the "Prospectus."
We have examined the originals, or copies certified or otherwise
identified, of the restated certificate of incorporation and by-laws, each as
amended to date, of the Company (the "Charter Documents"), the Registration
Statement, the Prospectus, the Underwriting Agreement, the Pricing Agreement,
the Indenture, the Establishment Action (as defined in the Indenture) relating
to the Securities, the form of the Securities, corporate records of the Company,
including minute books of the Company it has furnished to us, certificates of
public officials and of representatives of the Company, statutes and other
instruments and documents, as a basis for the opinions we hereinafter express.
In giving these opinions, we have relied on certificates of officers of the
Company and of public officials with respect to the accuracy of the factual
matters those certificates cover or contain, and we have assumed that all
signatures on documents we have examined are genuine, all documents submitted to
us as originals are authentic, all
IV-2
documents submitted to us as certified or photostatic copies conform to the
original copies of those documents and those original copies are authentic. In
giving the opinions set forth in paragraphs 4 and 8 below, we have relied on
oral advice of the staff of the Commission that the Commission has declared the
Registration Statement effective under the 1933 Act.
On the basis of the foregoing and subject to the assumptions, limitations
and qualifications we set forth herein, we are of the following opinions:
1. The Company is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Delaware, with corporate power and
authority to own its properties and to conduct the business of the Marathon
Group as described in the Prospectus [as amended or supplemented].
2. The Company has duly authorized, executed and delivered the
Underwriting Agreement and the Pricing Agreement.
3. The Company has duly authorized the issuance and sale of the
Securities. When executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters in accordance
with the Pricing Agreement, the Securities will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms and entitled to the benefits of the Indenture. The
Securities conform, as to legal matters, in all material respects to the
descriptions thereof the Prospectus [as amended or supplemented] contains.
4. [The Company has duly authorized, executed and delivered the
Indenture. The Indenture constitutes a valid and legally binding obligation of
the Company, enforceable against the Company in accordance with its terms and
has been duly qualified under the Trust Indenture Act of 1939 (the "Trust
Indenture Act").]
5. The issuance and sale of the Securities, the consummation of any of
the other transactions contemplated by the Pricing Agreement and the compliance
by the Company with the terms of the Pricing Agreement will not result in any
violation of (a) the Charter Documents, (b) the terms of any agreement or
instrument to which the Company or any Subsidiary is a party or bound or to
which its or their property is subject and listed on Schedule I hereto or (c)
the laws of the State of New York or Texas, the General Corporation Law of the
State of Delaware or the Federal laws of the United States.
6. No consent, approval, authorization or order of, or registration or
qualification with, any court or governmental agency or body having jurisdiction
over the Company or any of its properties is required on the part of the Company
under any applicable law for its issuance and sale of the Securities or its
consummation of the other transactions the Pricing Agreement contemplates,
except such as have been obtained under the 1933 Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or qualifications as
state securities or Blue Sky laws may require in connection with the purchase
and distribution of the Securities by the Underwriters.
7. The Registration Statement and the Prospectus and any amendments and
supplements thereto made by the Company prior to the date hereof, as of their
respective
IV-3
effective or issue dates, appear on their face to have been appropriately
responsive in all material respects to the requirements of the 1933 Act and the
Trust Indenture Act.
8. The Registration Statement has become effective under the 1933 Act
and, to our knowledge, no stop order suspending its effectiveness has been
issued and no proceedings for that purpose are pending before or threatened by
the Commission. Any filing of the Prospectus Rule 424(b) under the 1933 Act
requires has been timely made in accordance with that rule.
9. We do not know of any pending or threatened legal or governmental
proceedings with respect to the Company that are required to be disclosed in the
Prospectus [as amended or supplemented], or any amendment or supplement thereto,
which are not disclosed in the Prospectus [as amended or supplemented].
10. The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Prospectus as amended or supplemented, will not be an "investment
company" as the Investment Company Act of 1940 defines that term.
We have participated in conferences with officers and other representatives
of the Company, representatives of the independent public accountants of the
Company, your representatives and your counsel at which the contents of the
Registration Statement and the Prospectus and related matters were discussed.
Although we have not undertaken to determine independently, and do not assume
any responsibility for, the accuracy, completeness or fairness of the statements
the Registration Statement or the Prospectus contains (except to the extent set
forth in the last sentence of paragraph 3 above), we advise you that, on the
basis of the foregoing, no facts have come to our attention that lead us to
believe that the Registration Statement, as of its effective date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus, as of its issue date or the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. In paragraph 7
above and in this paragraph, references to the Registration Statement or the
Prospectus do not include references to any of the following, as to which we
have not been asked to comment, which the Registration Statement or the
Prospectus contains or incorporates by reference or omits: (a) the financial
statements, including the notes and schedules, if any thereto, or the auditor's
reports on the audited portions thereof, (b) the other accounting, financial,
reserve engineering and statistical information, (c) any statement or
representation in any exhibit to the Registration Statement or (d) the
information respecting the business of the U.S. Steel Group.
Our opinions above as to the enforceability of the Securities and the
Indenture are subject to the effect of (a) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and other laws relating to or
affecting creditors' rights generally, (b) general principles of equity
(regardless of whether that enforcement is considered in a proceeding in equity
or at law) and (c) any implied covenants of good faith and fair dealing.
IV-4
In this letter, references to federal statutes include all amendments
thereto and all rules and regulations of the Commission thereunder, in each as
in effect on the date hereof.
In this letter, phrases such as "to our knowledge," "known to us" and those
with equivalent wording refer to the conscious awareness of information by the
lawyers of this Firm who have prepared or signed this letter or been actively
involved in assisting and advising the Company in connection with the
preparation of the Registration Statement, the Prospectus and the execution and
delivery of the Pricing Agreement, without any independent investigation by any
lawyer of this Firm.
Except as we otherwise expressly state, we limit our opinions in this
letter in all respects to matters of the laws of the States of New York and
Texas and the General Corporation Law of the State of Delaware.
We are furnishing this letter to you solely for your use in connection with
the transactions consummated on the date hereof under the Pricing Agreement and
may not be relied on by any other person or for any other purpose. This letter
speaks as of the date hereof, and we disclaim any obligation to update it.
Very truly yours,
