EXHIBIT 1.1
Execution Copy
APACHE CORPORATION
(A DELAWARE CORPORATION)
8,200,000 SHARES OF COMMON STOCK
(PAR VALUE $1.25 PER SHARE)
PURCHASE AGREEMENT
January 16, 2003
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
RBC Xxxx Xxxxxxxx Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx Xxxxxxx & Co., Inc.
Xxxxxxx Xxxxx & Associates, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Apache Corporation, a Delaware corporation (the "Company"), confirms
its agreement with Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") and each
of the other Underwriters named in Schedule A hereto (collectively, the
"Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxx Xxxxxxx is acting as
representative (in such capacity, the "Representative"), with respect to the
issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of common stock,
par value $1.25 per share, of the Company (the "Common Stock") and related
preferred stock purchase rights (the "Rights") set forth in said Schedule A, and
with respect to the grant by the Company to the Underwriters, acting severally
and not jointly, of the option described in Section 2(b) hereof to purchase all
or any part of 1,230,000 additional shares of Common Stock and related Rights to
cover over-allotments, if any. The aforesaid 8,200,000 shares of Common Stock
and related Rights (the "Initial Securities") to be purchased by the
Underwriters and all or any part of the 1,230,000 shares of Common Stock and
related Rights subject to the option described in Section 2(b) hereof (the
"Option Securities") are hereinafter called, collectively, the "Securities".
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems advisable after
this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-75633) for the
registration under the Securities Act of 1933, as amended (the "1933 Act"), of
the Common Stock and the Rights and other securities, including the Securities,
and the offering thereof from time to time in accordance with Rule 415 of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), which was declared effective by the Commission on April 9, 1999.
The Company has also filed with the Commission a registration statement on Form
S-3 (No. 333-32580) for the registration of the Company's preferred stock,
depositary shares, debt securities, common stock purchase contracts, common
stock purchase units, the Common Stock and the Rights, including the Securities,
under the 1933 Act, and the offering thereof from time to time in accordance
with Rule 415 of the 1933 Act Regulations, which was declared effective by the
Commission on March 30, 2000. As provided in Section 3(a), a prospectus
supplement to the Prospectus (as defined below) reflecting the terms of the
Securities, the terms of the offering thereof and the other matters set forth
therein has been prepared and will be filed pursuant to Rule 424 of the 1933 Act
Regulations ("Rule 424"). Such prospectus supplement, in the form first filed
after the date of this Agreement pursuant to Rule 424, is herein referred to as
the "Prospectus Supplement". Registration Statement No. 333-75633, as amended at
the date of this Agreement, including the exhibits thereto and the documents
incorporated by reference therein, is herein called the "First Registration
Statement". Registration Statement No. 333-32580, as amended at the date of this
Agreement, including the exhibits thereto and the documents incorporated by
reference therein, is herein called the "Second Registration Statement" and,
together with the First Registration Statement, the "Registration Statements"
and each a "Registration Statement". Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations as a post-effective amendment to
either Registration Statement is herein referred to as a "Rule 462(b)
Registration Statement," and after such filing the term "First Registration
Statement" or "Second Registration Statement", as the case may be, shall include
the Rule 462(b) Registration Statement. The basic prospectus included in the
First Registration Statement and the basic prospectus included in the Second
Registration Statement, each relating to all offerings of Securities and other
securities registered under such Registration Statement, as supplemented by the
Prospectus Supplement, are herein referred to together as the "Prospectuses",
and each a "Prospectus", except that, if a basic prospectus is amended or
supplemented on or prior to the date on which the Prospectus Supplement is first
filed pursuant to Rule 424, the term "Prospectus" shall refer to such basic
prospectus as so amended or supplemented and as supplemented by the Prospectus
Supplement or, if any revised prospectus shall be provided to the Underwriters
by the Company for their use in connection with the offering of the Securities
which differs from such basic prospectus and Prospectus Supplement (whether or
not required to be filed by the Company pursuant to Rule 424), the term
"Prospectus" shall refer to such revised prospectus (including any prospectus
supplement) from and after the time it is first provided to the Underwriters for
such use, in either case including the documents filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), that are incorporated by reference therein. A "preliminary
prospectus" shall be deemed to refer to any prospectus and prospectus supplement
that omitted information to be included upon pricing in a form of prospectus
filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations
and was used after effectiveness of the Registration Statements and prior to the
initial delivery of the Prospectuses to the Underwriters by the Company. For
purposes of this Agreement, all references to the
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Registration Statements, any preliminary prospectus, the Prospectuses or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information that is "contained," "described", "included" or "stated"
in either Registration Statement, the Registration Statements, any preliminary
prospectus, either Prospectus or the Prospectuses (or other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information that is incorporated by reference in the
Registration Statements, any preliminary prospectus or the Prospectuses, as the
case may be; and all references in this Agreement to amendments or supplements
to either Registration Statement, the Registration Statements, any preliminary
prospectus, either Prospectus or the Prospectuses shall be deemed to mean and
include the filing of any document under the Securities Exchange Act of 1934
(the "1934 Act") that is incorporated by reference in the Registration
Statements, such preliminary prospectus or the Prospectuses, as the case may be.
All of the Initial Securities are registered on the Second Registration
Statement. Of the Option Securities, 800,000 shares to be issued pursuant to
Section 2(b) will be registered on the Second Registration Statement and the
remaining 430,000 shares to be issued pursuant to Section 2(b) will be
registered on the First Registration Statement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof and agrees with each Underwriter, as
follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statements and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of either Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times each Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), each Registration Statement,
any Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission promulgated thereunder; each Registration
Statement and any Rule 462(b) Registration Statement, each at the time
it became effective, did not, and at each time thereafter at which any
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amendment to such Registration Statement becomes effective or any
Annual Report on Form 10-K is filed by the Company with the Commission
and at the Closing Time (and, if any Option Securities are purchased,
at the Date of Delivery), 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.
Neither Prospectus nor any amendments or supplements thereto, at the
time such Prospectus or any amendments or supplements thereto were
issued and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
The representations and warranties in this subsection shall not apply
to statements in or omissions from either Registration Statement or
either Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
through the Representative expressly for use in either Registration
Statement or either Prospectus.
Each preliminary prospectus and the prospectus filed as part
of each Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering
were identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statements
and the Prospectuses, at the time they were or hereafter are filed with
the Commission, complied or when so filed will comply, as the case may
be, in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder ("the 1934 Act
Regulations"), and, when read together with the other information in
each Prospectus, at the time each Registration Statement became
effective, at the time each Prospectus was issued and at the Closing
Time (and, if any Option Securities are purchased, at the Date of
Delivery), did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were or are made, not misleading.
(iii) Independent Accountants. (a) The accountants who
certified the financial statements and supporting schedules included in
the Registration Statements and the Prospectuses were independent
public accountants with respect to the Company as required by the 1933
Act and the 1933 Act Regulations. (b) The accountants who have
performed specified procedures with respect to the latest available
interim financial statements of the Company and its indicated
subsidiaries are independent public accountants with respect to the
Company as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements, and the
related notes thereto, and any supporting schedules of the Company and
its subsidiaries included in the
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Registration Statements and the Prospectuses present fairly the
consolidated financial position of the Company and its subsidiaries as
of the dates indicated and the consolidated results of their operations
for the periods specified; except as stated therein, said financial
statements have been prepared in conformity with U.S. generally
accepted accounting principles applied on a consistent basis. The
supporting schedules included in the Registration Statements and the
Prospectuses present fairly the information required to be stated
therein. The pro forma financial statements and the related notes
thereto, if any, included in the Registration Statements and the
Prospectuses present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in each Registration
Statement, any Rule 462(b) Registration Statement and each Prospectus,
except as may otherwise be stated therein or contemplated thereby, (1)
there has been no material adverse change, or any development involving
a prospective material adverse change, in the condition, financial or
otherwise, or in the results of operations or business affairs of the
Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, (2) there have been no
material transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, and
(3) except for dividends on the Common Stock described in the
Prospectuses and dividends on the Company's preferred stock, there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware with corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in each Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in the State of Texas and in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify and be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the results
of operations, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company as defined in Rule 405 of Regulation C of
the 1933 Act Regulations (collectively, the "Significant Subsidiaries")
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and conduct its business as described in each Prospectus and
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the
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conduct of business, except where the failure so to qualify and be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and, except as described in
each Prospectus, all of the issued and outstanding capital stock of
each Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, except for directors'
qualifying shares (if applicable), is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in each Prospectus (except
for issuances, if any, described in such Prospectus, pursuant to this
Agreement, pursuant to reservations, agreements or employee benefit
plans referred to in such Prospectus or pursuant to the exercise of
convertible securities or options referred to in such Prospectus). The
shares of issued and outstanding capital stock of the Company set forth
therein have been duly authorized and validly issued and are fully paid
and non-assessable; none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(ix) Authorization of Agreements. This Agreement has been duly
authorized, executed and delivered by the Company and, upon execution
and delivery by the Underwriters, will be a valid and legally binding
agreement of the Company.
(x) Authorization and Description of Securities. The
Securities to be purchased by the Underwriters from the Company have
been duly and validly authorized for issuance, offer and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued, fully paid and
non-assessable; the Securities conform in all material respects to all
statements relating thereto contained in each Prospectus and such
description conforms to the rights set forth in the instruments
defining the same; and the issuance of the Securities will not be
subject to any preemptive or similar rights. The Rights have been duly
and validly authorized for issuance by the Company in accordance with
the Rights Agreement, dated as of January 31, 1996, between the Company
and Norwest Bank Minnesota, N.A.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or any of them or their properties
may be bound, where the consequences of such violation or default would
have a material adverse effect on the condition, financial or
otherwise, or the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated in this
Agreement and in the Registration Statements (including the issuance
and sale of the Securities and the use of the proceeds from the
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sale of the Securities as described in each Prospectus under the
caption "Use of Proceeds") have been duly authorized by all necessary
corporate action of the Company and do not and will not conflict with
or constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound or to which any of the
property or assets of the Company or any subsidiary thereof is subject,
nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries or any
law, administrative regulation or administrative or court order or
decree, where the consequences of such conflict, breach, creation,
imposition, violation or default would have a material adverse effect
on the condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xii) Absence of Proceedings. Except as may be described in
the Registration Statements and the Prospectuses, there is no action,
suit, proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or affecting
the Company or any of its subsidiaries, that might, in the opinion of
the Company, result in any material adverse change in the condition,
financial or otherwise, or in the results of operations, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, or could reasonably be expected to
materially and adversely affect the properties or assets thereof or
could reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder.
(xiii) Accuracy of Exhibits. There are no contracts or
documents that are required to be filed as exhibits to either
Registration Statement by the 1933 Act or by the 1933 Act Regulations
that have not been so filed.
(xiv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate trademarks, service marks and trade names necessary to conduct
the business now operated by them, except as described in the
Registration Statements or except where the failure to own or possess
the same would not materially adversely affect the condition, financial
or otherwise, or the results of operations, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise, and neither the Company nor any of its subsidiaries has
received any notice of any infringement of or conflict with asserted
rights of others with respect to any trademarks, service marks or trade
names that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially adversely
affect the condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
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(xv) Absence of Further Requirements. No consent, approval,
authorization, order, decree, registration or qualification of or with
any court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement or in connection with the sale of Securities hereunder,
except such as have been obtained or rendered, as the case may be, or
as may be required under state securities or blue sky laws.
(xvi) Possession of Licenses and Permits. Neither the Company
nor any of its subsidiaries is in violation of any law, ordinance,
governmental rule or regulation or court decree to which it may be
subject or has failed to obtain any license, permit, franchise or other
governmental authorization necessary to the ownership of its property
or to the conduct of its business, which violation or failure would
materially adversely affect the condition, financial or otherwise, or
the results of operations, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise; and the
Company and its subsidiaries own or possess or have obtained all
governmental licenses, permits, consents, orders, approvals and other
authorizations and have properly filed with the appropriate authorities
all notices, applications and other documents necessary to lease or own
their respective properties and to carry on their respective businesses
as presently conducted, except where the failure to possess such
licenses or authorizations or make such filings would not materially
adversely affect the condition, financial or otherwise, or the results
of operations, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(xvii) Title to Property. The Company and its subsidiaries
have legal, valid and defensible title to all of their interests in oil
and gas properties and to all other real and personal property owned by
them and any other real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases, in each case free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or
encumbrances and defects of any kind, except such as (1) are described
in each Prospectus, (2) liens and encumbrances under operating
agreements, unitization and pooling agreements, production sales
contracts, farm-out agreements and other oil and gas exploration and
production agreements, in each case that secure payment of amounts not
yet due and payable for the performance of other inchoate obligations
and are of a scope and nature customary in connection with similar
drilling and producing operations, or (3) those that do not have a
material adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise.
(xviii) Investment Company Act. Neither the Company nor any of
its subsidiaries is required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
(xix) Environmental Laws. Except as described in the
Registration Statements, (1) neither the Company nor any of its
subsidiaries is in violation of any local or foreign laws or
regulations relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating
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to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), except such violations as would not, singly or
in the aggregate, have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, and (2) to the best of the Company's knowledge, there
are no events or circumstances that could reasonably be expected to be
the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating to
any Hazardous Materials or the violation of any Environmental Laws,
that, singly or in the aggregate, could reasonably be expected to have
a material adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise.
(xx) Independent Petroleum Engineers. The petroleum engineers
who have consented to being named as having reviewed certain reserve
data included in the Prospectuses are independent engineers with
respect to the Company and its subsidiaries.
(xxi) Oil and Gas Reserve Estimates. The information
underlying the estimates of oil and gas reserves as described in each
Prospectus is complete and accurate in all material respects (or, with
regard to any information underlying the estimates prepared by any
petroleum engineers retained by the seller of such oil and gas
reserves, is, to the best knowledge of the Company after reasonable
investigation, complete and accurate in all material respects); other
than production of the reserves in the ordinary course of business and
intervening product price fluctuations described in each Prospectus,
the Company is not aware of any facts or circumstances that would
result in a material adverse change in the reserves or the present
value of future net cash flows therefrom as described in each
Prospectus. Estimates of such reserves and present values comply in all
material respects with the applicable requirements of Regulation S-X
and Industry Guide 2 under the 1933 Act.
(xxii) Registration Rights. There are no contracts, agreements
or understandings between the Company or any of its subsidiaries, on
the one hand, and any person, on the other hand, granting such person
the right to require the Company or any of its subsidiaries to file a
registration statement under the 1933 Act with respect to any
securities (other than contractual obligations by the Company to file
registration statements on Form S-8 covering issuances of Common Stock
pursuant to its employee or director stock, bonus or compensation
plans) or to require the Company or any of its subsidiaries to include
such securities in any registration statement filed by the Company
under the 1933 Act or in any public offering of securities.
(xxiii) Disclosure of Relationships. No relationship, direct
or indirect, exists between or among the Company or any of its
subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its
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subsidiaries on the other hand, which is required by the 1933 Act to be
described in each Registration Statement and each Prospectus and which
is not so described.
(b) Officer's Certificates. Any certificate signed by any director or
officer of the Company and delivered to the Representative or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional 1,230,000 shares of Common
Stock and related Rights at the price per share set forth in Schedule B, less an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
The option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments that may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Representative to the
Company setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery for the
Option Securities (a "Date of Delivery") shall be determined by the
Representative, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting severally and not jointly,
will purchase that proportion of the total number of Option Securities then
being purchased which the number of Initial Securities set forth in Schedule A
opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as the Representative in
its discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of the
Company at 0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, or at such
other place as shall be agreed upon by the Representative and the Company, at
9:00 A.M. (Eastern time) on the third business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery being
herein called "Closing Time").
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In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representative
and the Company, on each Date of Delivery as specified in the notice from the
Representative to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, that it has agreed to
purchase. Xxxxxx Xxxxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representative may request in writing at least
one full business day before the Closing Time or the relevant Date of Delivery,
as the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representative in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Prospectus Supplement Filing. Immediately following the execution
of this Agreement, the Company will prepare a Prospectus Supplement in form
approved by the Representative setting forth the amount of Securities, the names
of the Underwriters and the amount of the Securities that each severally has
agreed to purchase, the price at which the Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, the selling
concession and reallowance, if any, and such other information as the
Representative and the Company deem appropriate in connection with the offering
of the Securities. The Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 of the 1933 Act
Regulations and will furnish to the Underwriters named therein as many copies of
the Prospectuses (including the Prospectus Supplement) as the Representative
shall reasonably request.
(b) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(c), will notify the Representative immediately,
and confirm the notice in writing, (i) when any post-effective amendment to
either Registration Statement shall become effective, or any supplement to
either Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to either Registration Statement or any amendment
or
11
supplement to either Prospectus or for additional information, (iv) of the
issuance by the Commission, during the period when either Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, of any stop order suspending
the effectiveness of either Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes, and
(v) of any change in the rating assigned by any nationally recognized
statistical rating organization to any debt securities or preferred stock of the
Company or the public announcement by any nationally recognized statistical
rating organization that it has under surveillance or review, with possible
negative implications, its rating of any debt securities or preferred stock of
the Company. The Company will promptly effect the filings necessary pursuant to
Rule 424(b) and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectuses transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectuses. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(c) Filing of Amendments. The Company will give the Representative
notice of its intention to file or prepare any amendment to either Registration
Statement (including any filing under Rule 462(b)), any amendment, supplement or
revision to either the basic prospectus included in either Registration
Statement at the time it became effective or to either Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representative with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representative or counsel for the
Underwriters shall object.
(d) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, signed copies of each Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representative, without charge, a
conformed copy of each Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
each Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when each
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectuses (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectuses and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
12
(f) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectuses. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend either Registration Statement or amend or supplement either
Prospectus in order that neither Prospectus will include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend either Registration Statement
or amend or supplement either Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make each
Registration Statement or each Prospectus, as the case may be, comply with such
requirements, and the Company will furnish to the Underwriters such number of
copies of such amendment or supplement as the Representative may reasonably
request.
(g) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic or
foreign) as the Representative may designate and to maintain such qualifications
in effect for as long as may be required for the distribution of the Securities;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for as long as may be required for the distribution of
the Securities.
(h) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(i) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in each Prospectus
under "Use of Proceeds".
(j) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
(k) Restriction on Sale of Securities. During a period of 90 days from
the date of the Prospectus Supplement, the Company and each of the officers and
directors of the Company listed on Schedule C hereto will not, without the prior
written consent of the Representative, (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend or
13
otherwise transfer or dispose of any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Securities to be sold hereunder, (B) any shares of Common Stock
issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in
either Prospectus, (C) any shares of Common Stock issued or options to purchase
Common Stock granted pursuant to existing employee benefit plans of the Company
referred to in either Prospectus, (D) any shares of Common Stock issued pursuant
to any non-employee director stock plan or dividend reinvestment plan, (E) the
exercise of options for less than 9,000 shares of Common Stock held by any one
of the officers of the Company, which options will expire within 90 days of the
date hereof, (F) any shares of Common Stock issued pursuant to the Company's
existing dividend reinvestment program, or (G) any shares of Common Stock
issuable in connection with any asset purchase or other transaction described in
either Prospectus.
(l) Reporting Requirements. The Company, during the period when either
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses. (a) The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including:
(i) the preparation and filing of each Registration Statement,
including any Rule 462(b) Registration Statement, and all amendments
thereto and the Prospectuses and any amendments or supplements thereto;
(ii) the preparation, filing, reproduction and delivery to the
Underwriters of this Agreement; and such other documents as may be
required in connection with the offering, purchase, sale, issuance or
delivery of the Securities;
(iii) the preparation, printing, issuance and delivery of the
Securities, including any stock or other transfer taxes and any stamp
or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters;
(iv) the fees and disbursements of the Company's accountants,
counsel and other advisors;
(v) the qualification of the Securities under state and
foreign securities laws in accordance with the provisions of Section
3(g) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any Blue Sky or Legal
Investment Survey;
14
(vi) the printing and delivery to the Underwriters of copies
of each Registration Statement and any amendments thereto, and of each
preliminary prospectus, each Prospectus and any amendments or
supplements thereto, and the delivery by the Underwriters of the
Prospectuses and any amendments or supplements thereto;
(vii) all fees and disbursements of any transfer and paying
agent;
(viii) all fees and disbursements of the independent petroleum
engineers who have reviewed certain reserve data of the Company
included or incorporated by reference in the Prospectuses;
(ix) the fees and expenses incurred in connection the listing
of the Securities on the New York Stock Exchange;
(x) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Securities, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of
the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and, with the prior
approval of the Company, the cost of any aircraft chartered in
connection with the road show;
(xi) any out-of-pocket expenses, excluding any legal expenses
(other than as set forth in subparagraph 4(a)(v) above), of the
Underwriters incurred with the approval of the Company; and
(xii) the cost of providing any CUSIP or other identification
numbers for the Securities.
(b) If this Agreement is terminated by the Representative in accordance
with the provisions of Section 5, Section 9(a) or Section 10 hereof, the Company
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statements; Filing of Prospectus
Supplement. Each Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and at Closing Time no stop order suspending the
effectiveness of such Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A
15
Prospectus Supplement shall have been filed with the Commission in accordance
with Rule 424 and pursuant to Section 3(a) hereof.
(b) Opinions of Counsel for Company. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of each of (1) Chamberlain, Hrdlicka, White, Xxxxxxxx & Xxxxxx, counsel
for the Company, and (2) either Xxxx X. Xxxxx, Vice President and Associate
General Counsel of the Company, or Xxxxxxx X. Xxxx, Attorney and Assistant
Secretary of the Company, each in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such letters for
each of the other Underwriters to the effect set forth in Exhibit A-1 and
Exhibit A-2, respectively.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the matters set forth in clauses (i), (ii), (iii)
(solely as to preemptive or similar rights arising by operation of law or under
the charter or by-laws of the Company), (iv) (except with respect to the
information set forth under the caption "Material U.S. Federal Tax Consequences
to Non-U.S. Holders of Common Stock"), (v) and (vii) (excluding the documents
incorporated by reference in the Registration Statements and the Prospectuses)
and the penultimate paragraph of Exhibit A-1 hereto. In giving such opinion,
such counsel may rely, as to all matters governed by the laws of the State of
Texas, upon the opinions referred to in Section 5(b) hereof and as to matters
governed by jurisdictions other than the federal law of the United States, the
laws of the State of New York and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representative. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in either Prospectus, any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the results of operations or business affairs of the Company
and its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representative shall have received a
certificate of the Chief Executive Officer, President or a Vice President of the
Company and of the Treasurer, the Assistant Treasurer, the principal financial
officer or the principal accounting officer of the Company, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has performed or complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to Closing Time, (iv) at the Closing Time, there shall not have occurred a
downgrading in the rating accorded to any debt securities or preferred stock of
the Company by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
1933 Act, or such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
debt securities or preferred stock of the Company, and (v) no stop order
suspending the effectiveness of either Registration Statement has been issued
and no
16
proceedings for that purpose have been instituted or are pending or have been
threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from Ernst & Young LLP a
letter dated such date, in form and substance satisfactory to the
Representative, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statements and the Prospectuses.
(f) Bring-down Comfort Letter. At Closing Time, the Representative
shall have received from Ernst & Young LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(g) Engineers' Letters. At the time of execution of this Agreement, the
Representative shall have received a signed letter, dated the date of this
Agreement, in form and substance satisfactory to the Representative, together
with signed or reproduced copies of such letter for each of the other
Underwriters, from Xxxxx Xxxxx Company Petroleum Engineers.
(h) Approval of Listing. At Closing Time, the Securities shall have
been duly listed on the New York Stock Exchange, subject only to official notice
of issuance.
(i) Lock-up Agreements. At the date of this Agreement, the
Representative shall have received an agreement substantially in the form of
Exhibit B hereto signed by each of the persons listed on Schedule C hereto.
(j) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company contained herein and the statements in any certificates furnished
by the Company or any subsidiary of the Company hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery, the
Representative shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the Chief Executive Officer, President or a Vice President
of the Company and of the Treasurer, Assistant Treasurer, principal
financial officer or principal accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(d) hereof remains true and correct as of such Date of
Delivery.
(ii) Opinions of Counsel for Company. The favorable opinion of
Chamberlain, Hrdlicka, White, Xxxxxxxx & Xxxxxx, counsel for the
Company, together with the favorable opinion of either Xxxx X. Xxxxx,
Vice President and Associate General Counsel for the Company, or
Xxxxxxx X. Xxxx, Attorney and Assistant Secretary of the Company, each
in form and substance satisfactory to counsel for the Underwriters,
dated
17
such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The favorable
opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from Ernst & Young
LLP, in form and substance satisfactory to the Representative and dated
such Date of Delivery, substantially in the same form and substance as
the letter furnished to the Representative pursuant to Section 5(f)
hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than three days
prior to such Date of Delivery.
(k) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on a Date of Delivery which is after the Closing Time, the obligations of the
several Underwriters to purchase the relevant Option Securities, may be
terminated by the Representative by notice to the Company at any time at or
prior to Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in either
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or either
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to
make the
18
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxx
Xxxxxxx), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use in the Registration
Statements (or any amendment thereto), or any preliminary prospectus or the
Prospectuses (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed either Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
either Registration Statement (or any amendment thereto), or any preliminary
prospectus or either Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representative expressly for use in such
Registration Statement (or any amendment thereto) or such preliminary prospectus
or such Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action (including any governmental investigation) commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by Xxxxxx Xxxxxxx, and, in the case of
19
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may participate
at its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions that resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the
20
cover of the Prospectus Supplement bear to the aggregate initial public offering
price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the 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 any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed either
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
21
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectuses, any
material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak or escalation of hostilities or other calamity
or crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions, in each
case the effect of which, singly or together with any other event specified in
this clause (ii), is such as to make it, in the judgment of the Representative,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or a national
securities exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or the Chicago Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by either of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or if a banking moratorium shall have been declared by
Federal, New York or Texas authorities, or (iv) a downgrading shall have
occurred in the rating accorded to any debt securities or preferred stock of the
Company as of the date of this Agreement by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act or such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any debt securities or preferred stock of
the Company, or (v) there has been a material disruption in securities
settlement, payment or clearance services in the United States, or (vi) there
shall have come to the attention of the Representative any facts that would
cause them to reasonably believe that either Prospectus, at the time it was
required to be delivered to a purchaser of the Securities, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing at
the time of such delivery, not misleading. As used in this Section 9, the term
"Prospectus" means the applicable Prospectus in the form first provided to the
Underwriters for use in confirming sales of the related Securities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities that it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for one or
22
more of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the
Representative shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Company to sell the Option Securities to be
purchased and sold on such Date of Delivery shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representative or the Company shall have the
right to postpone Closing Time or the relevant Date of Delivery, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statements or Prospectuses or in any other documents
or arrangements. As used herein, the term "Underwriter" includes any person
substituted for a Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Equity Capital Markets
Syndicate; and notices to the Company shall be directed to it at 0000 Xxxx Xxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, attention of Vice President and
Treasurer, with a copy to Xxxxx X. Xxxxxx, Xx., Esq., Chamberlain, Hrdlicka,
White, Xxxxxxxx & Xxxxxx, 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their
23
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
APACHE CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX BARNEY INC.
RBC XXXX XXXXXXXX INC.
XXXXXX X. XXXXX & CO. INCORPORATED
X.X. XXXXXXX & SONS, INC.
XXXXXX XXXXXXX & CO., INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ XXXXX XXX
---------------------------------
Authorized Signatory
For themselves and as Representative of the
other Underwriters named in Schedule A hereto.
SCHEDULE A
Number of Initial
Name of Underwriter Securities
------------------- -----------------
Xxxxxx Xxxxxxx & Co. Incorporated...................................................... 1,886,000
Xxxxxxx Xxxxx Barney Inc. ............................................................. 1,886,000
RBC Xxxx Xxxxxxxx Inc. ................................................................ 1,886,000
Xxxxxx X. Xxxxx & Co. Incorporated..................................................... 635,500
X.X. Xxxxxxx & Sons, Inc. ............................................................. 635,500
Xxxxxx Xxxxxxx & Co., Inc. ............................................................ 635,500
Xxxxxxx Xxxxx & Associates, Inc. ...................................................... 635,500
---------
Total ................................................................................. 8,200,000
=========
Sch A-1
SCHEDULE B
APACHE CORPORATION
8,200,000 Shares of Common Stock
(Par Value $1.25 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $61.00.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $58.7125, being an amount equal to the initial
public offering price set forth above less $2.2875 per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
Sch B-1
SCHEDULE C
List of persons subject to lock-up
Xxxxxxx Xxxxx
G. Xxxxxx Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxx
Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxx X. Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxx X. Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
A.D. Xxxxxxx, Jr.
Xxxxxxxx Xxxxxxx Xxxxxx
Xxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx Xx.
X.X. "Xxxx" Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. XxXxxxx
Sch C-1
EXHIBIT A-1
FORM OF OPINION OF CHAMBERLAIN,
HRDLICKA, WHITE, XXXXXXXX & XXXXXX,
COUNSEL TO THE COMPANY,
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(1)
[Capitalized terms used but not defined herein have the meanings assigned to
such terms in the Purchase Agreement.]
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(iii) The Securities to be purchased by the Underwriters from the
Company have been duly and validly authorized for issuance, offer and sale to
the Underwriters pursuant to the Purchase Agreement and, when issued and
delivered by the Company pursuant to the Purchase Agreement against payment of
the consideration therefor set forth in the Purchase Agreement will be validly
issued, fully paid and non-assessable. The issuance of the Securities will not
be subject to any preemptive or similar rights. The Rights have been duly and
validly authorized for issuance by the Company in accordance with the Rights
Agreement, dated as of January 31, 1996, between the Company and Norwest Bank
Minnesota, N.A.
(iv) The Securities conform in all material respects to the statements
relating thereto in each Prospectus; and the information in such Prospectus
under the captions "Description of Capital Stock -- Common Stock," "Description
of Capital Stock -- Stockholder Rights Plan" and "Material U.S. Federal Tax
Consequences to Non-U.S. Holders of Common Stock" to the extent that it
constitutes matters of law, summaries of legal matters, legal conclusions or
summaries of certain provisions of instruments specifically referred to therein,
has been reviewed by such counsel and is correct in all material respects.
(v) Each Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective by the Commission under the 1933 Act and,
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of such Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission.
(vi) The execution and delivery of the Purchase Agreement, the issuance
of the Securities, the incurrence of the obligations set forth in the Purchase
Agreement and the consummation of the transactions contemplated in the Purchase
Agreement do not and will not conflict with or constitute a breach of, or
default under, the Company's certificate of incorporation or by-laws.
(vii) Each Registration Statement, including any Rule 462(b)
Registration Statement, each Prospectus, and each amendment or supplement to
each Registration Statement and each
A-1-1
Prospectus, as of their respective effective or issue dates (except for
financial statements and supporting schedules and engineering reports and other
financial or engineering data, included therein or omitted therefrom, as to
which such counsel need express no opinion) appeared on their face to be
appropriately responsive to the requirements of the 1933 Act and the 1933 Act
Regulations.
In giving their opinion, Chamberlain, Hrdlicka, White, Xxxxxxxx &
Xxxxxx shall additionally state that, in the course of the preparation of each
Registration Statement and each Prospectus, such counsel has considered the
information set forth therein in light of the matters required to be set forth
therein, and has participated in conferences with officers and representatives
of the Company, including its independent public accountants, during the course
of which the contents of each Registration Statement and each Prospectus and
related matters were discussed. Such counsel may state that they did not
independently check the accuracy or completeness of, or otherwise verify, and
accordingly need not pass upon, and accordingly need not assume responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Registration Statements or the Prospectuses, and such counsel may, in good
faith, rely as to materiality, to the extent deemed appropriate, upon the
judgment of officers and representatives of the Company. Such counsel shall
additionally state that, however, as a result of such consideration and
participation, nothing has come to such counsel's attention that causes such
counsel to believe that either Registration Statement, at the time it became
effective (or, if an amendment to such Registration Statement or an Annual
Report on Form 10-K has been filed by the Company with the Commission subsequent
to the effectiveness of such Registration Statement, then at the time such
amendment became effective or at the time of the most recent such filing, as the
case may be), contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading or that either Prospectus or any
amendment or supplement thereto, at the time such Prospectus was issued, at the
time any such amendment or supplement was issued, or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to the
financial statements and schedules and engineering reports and other financial
or engineering data contained or incorporated by reference in the Registration
Statements (including the Prospectuses)).
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent they deem proper, on the representations of officers of the
Company contained in any certificate delivered to such counsel and certificates
of public officials, which certificates shall be attached to or delivered with
such opinion. Such opinion may be limited to the General Corporation Law of the
State of Delaware, the laws of the State of Texas and the laws of the United
States of America.
X-0-0
XXXXXXX X-0
FORM OF OPINION OF EITHER XXXX X. XXXXX,
VICE PRESIDENT AND ASSOCIATE GENERAL COUNSEL
OF THE COMPANY, OR XXXXXXX X. XXXX,
ATTORNEY AND ASSISTANT SECRETARY
OF THE COMPANY, TO BE DELIVERED
PURSUANT TO SECTION 5(b)(2)
[Capitalized terms used but not defined herein have the meanings assigned to
such terms in the Purchase Agreement.]
(i) The Company has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in each
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(ii) To the best knowledge and information of such counsel, the Company
is duly qualified as a foreign corporation to transact business and is in good
standing in the State of Texas and in each other jurisdiction in which such
qualification is required, except where the failure so to qualify and be in good
standing would not have a material adverse effect on the condition, financial or
otherwise, or the results of operations, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
(iii) Each Significant Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
each Prospectus and, to the best of such counsel's knowledge and information, is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, except
where the failure so to qualify and be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the results
of operations, business affairs or business prospects of the Company and its
subsidiaries considered as on enterprise; and all of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable, and is owned by the Company,
directly or indirectly, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity (except as described in such Prospectus).
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in each Prospectus (except for issuances, if any,
described in such Prospectus, pursuant to the Purchase Agreement or pursuant to
reservations, agreements or employee benefit plans referred to in such
Prospectus or pursuant to the exercise of convertible securities or options
referred to in such Prospectus); the shares of issued and outstanding capital
stock of the Company set forth therein, have been duly authorized and validly
issued and are fully paid and non-assessable; and the Securities conform to all
statements relating thereto contained in each Prospectus and such statements
conform to the provisions of the instruments defining the same.
(v) The Securities to be purchased by the Underwriters from the Company
have been duly and validly authorized for issuance, offer and sale to the
Underwriters pursuant to the
A-2-1
Purchase Agreement and, when issued and delivered by the Company pursuant to the
Purchase Agreement against payment of the consideration therefor set forth in
the Purchase Agreement, will be validly issued, fully paid and non-assessable.
The issuance of the Securities will not be subject to any preemptive or similar
rights. The Rights have been duly and validly authorized for issuance by the
Company in accordance with the Rights Agreement, dated as of January 31, 1996,
between the Company and Norwest Bank Minnesota, N.A.
(vi) Each document filed pursuant to the 1934 Act and incorporated by
reference in each Prospectus (except for financial statements and supporting
schedules and engineering reports and other financial or engineering data as to
which no opinion need be rendered) appeared on its face to be appropriately
responsive when so filed to the requirements of the 1934 Act and the 1934 Act
Regulations.
(vii) Neither the Company nor any of its subsidiaries is required to be
registered under the 1940 Act.
(viii) No consent, approval, authorization, order, decree, registration
or qualification of or with any court or governmental authority or agency is
required that has not been obtained in connection with the consummation by the
Company of the transactions contemplated by the Purchase Agreement, except such
as have been obtained or rendered, as the case may be, or as may be required
under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act
Regulations or state securities laws.
(ix) The execution, delivery and performance of the Purchase Agreement
and the consummation of the transactions contemplated therein and in the
Prospectuses have been duly authorized by all necessary corporate action of the
Company and, to the best knowledge and information of such counsel, will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any of its subsidiaries is a party or by which it or any of them
may be bound or to which any of the property or assets of the Company or any
such subsidiary is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any applicable law,
administrative regulation or, to the best knowledge and information of such
counsel, administrative or court order or decree.
(x) Neither the Company nor any of its Significant Subsidiaries is in
violation of its charter or by-laws.
(xi) To the best knowledge and information of such counsel, neither the
Company nor any of its subsidiaries is in violation of any law, ordinance,
governmental rule or regulation or court decree to which it may be subject or
has failed to obtain any license, permit, franchise or other governmental
authorization necessary to the ownership of its property or to the conduct of
its business, which violation or failure would materially adversely affect the
condition, financial or otherwise, or the results of operations, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise; and, to the best knowledge and information of such counsel, the
Company and its subsidiaries own or possess or have obtained all
A-2-2
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own their respective properties and to
carry on their respective businesses as presently conducted, except where the
failure to obtain such authorizations would not have a material adverse effect
on the condition, financial or otherwise, or the results of operations, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise.
(xii) To the best of such counsel's knowledge and information, there is
no action, suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, or threatened against or affecting, the
Company or any of its subsidiaries, that would be reasonably expected to result
in any material adverse change in the condition, financial or otherwise, or in
the results of operations, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, or would materially and
adversely affect the properties or assets thereof or would materially and
adversely affect the consummation of the Purchase Agreement or any transaction
contemplated thereby or by the Prospectuses.
(xiii) To the best of such counsel's knowledge and information, there
are no contracts or other documents required to be described or referred to in
the Registration Statements or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto, the descriptions thereof or references thereto are correct in
all material respects, and, to the best of such counsel's knowledge and
information, no default exists in the due performance or observance of any
material obligation, agreement, covenant or conditions contained in any
contract, or other documents so described, referred to, filed or incorporated by
reference where the consequences of such default would have a material adverse
effect on the condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
In giving his opinion, either Xxxx X. Xxxxx or Xxxxxxx X. Xxxx shall
additionally state that, in the course of the preparation of each Registration
Statement and each Prospectus, such counsel has considered the information set
forth therein in light of the matters required to be set forth therein, and has
participated in conferences with officers and representatives of the Company,
including its independent public accountants, during the course of which the
contents of each Registration Statement and each Prospectus and related matters
were discussed. Such counsel may state that he did not independently check the
accuracy or completeness of, or otherwise verify, and accordingly need not pass
upon, and accordingly need not assume responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statements or the Prospectuses, and such counsel may, in good faith, rely as to
materiality, to the extent deemed appropriate, upon the judgment of officers and
representatives of the Company. Such counsel shall additionally state that,
however, as a result of such consideration and participation, nothing has come
to such counsel's attention that causes such counsel to believe that either
Registration Statement, at the time it became effective (or, if an amendment to
such Registration Statement or an Annual Report on Form 10-K has been filed by
the Company with the Commission subsequent to the effectiveness of such
Registration Statement, then at the time such amendment became effective or at
the time of the most recent such filing, as the case may be), contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading or that either Prospectus or any amendment or supplement thereto, at
the time such Prospectus was issued, at the time any such amendment or
supplement was issued, or
A-2-3
at the Closing Time, included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and schedules and engineering
reports and other financial or engineering data contained or incorporated by
reference in the Registration Statements (including the Prospectuses)).
In rendering such opinion, either Mr. Xxxxx or Xx. Xxxx may rely (i) as
to matters of fact upon the representations of officers of the Company contained
in any certificate delivered to such counsel and certificates of public
officials, (ii) as to matters related to the capital stock of the Company and
each of the Company's Significant Subsidiaries issued prior to March 30, 1993,
the opinion of Xxxxxx X. Xxxxxxxxxxxx, former Senior Vice President and General
Counsel of the Company, dated Xxxxx 00, 0000, (xxx) as to matters related to
Apache Quarun Corporation LDC, Apache Quarun Exploration Company LDC and Apache
Khalda Corporation LDC, the opinion of Xxx Xxxxx Xxxxx, (iv) as to matters
regarding Apache Energy Limited, the opinion of Xxxx Xxxxxxx Xxxx, and (v) as to
matters related to Apache Canada Ltd., the opinion of Xxxxxxx Xxxxx Verchere,
which certificates and opinions shall be attached to or delivered with such
opinion. Such opinion shall be limited to the General Corporation Law of the
State of Delaware, the laws of the State of Texas and the laws of the United
States of America.
A-2-4
EXHIBIT B
[FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR
OTHER STOCKHOLDERS PURSUANT TO SECTION 5(I)]
January [ ], 2003
XXXXXX XXXXXXX & CO. INCORPORATED
as Representative of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Public Offering by
Apache Corporation
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of
Apache Corporation, a Delaware corporation (the "Company"), understands that
Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx"), Xxxxxxx Xxxxx Xxxxxx Inc.,
RBC Xxxx Xxxxxxxx Inc., X.X. Xxxxxxx & Sons, Inc., Xxxxxx Xxxxxxx & Co., Inc.,
Xxxxxxx Xxxxx & Associates, Inc. and Xxxxxx X. Xxxxx & Co. Incorporated (each,
an "Underwriter") propose to enter into a Purchase Agreement (the "Purchase
Agreement") with the Company providing for the public offering (the "Public
Offering") of shares (the "Securities") of the Company's common stock, par value
$1.25 per share (the "Common Stock"), and related rights to purchase Common
Stock. In recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder [and an officer and/or director] of the Company,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the undersigned agrees with each underwriter to
be named in the Purchase Agreement that, during a period of 90 days from the
date of the Purchase Agreement, the undersigned will not, without the prior
written consent of Xxxxxx Xxxxxxx, directly or indirectly, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant for the sale of,
or otherwise dispose of or transfer any shares of the Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (a) the sale of any Common Stock to the Underwriters pursuant to the Purchase
Agreement, (b) transactions relating to shares of Common Stock or other
securities acquired in open market transactions after the completion of the
Public Offering and (c) any transfer or disposition of Common Stock to the
Company pursuant to a cashless
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exercise of an option to purchase Common Stock granted pursuant to a benefit
plan and existing as of the date of the Purchase Agreement. In addition, the
undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Underwriters, the undersigned will not, during the period
commencing on the date hereof and ending 90 days after the date of the
prospectus supplement relating to the Public Offering make any demand for, or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock. The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the undersigned's share of Common Stock except in compliance with
the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to a Purchase Agreement, the terms of which are subject to negotiation
between the Company and the Underwriters.
Very truly yours,
Signature:
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Print Name:
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