Exhibit 1.1
Halliburton Company
Medium-Term Notes
Due Nine Months or More From Date of Issue, Series A
Distribution Agreement
January 13, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Halliburton Company, a Delaware corporation, confirms its agreement
with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and
each other agent that may from time to time be a signatory hereto (each, an
"Agent" and, collectively, the "Agents") with respect to the issue and sale by
the Company (as hereinafter defined) of its Medium-Term Notes Due Nine Months or
More From Date of Issue, Series A (the "Notes"). The Notes are to be issued
pursuant to an Indenture, dated as of December 1, 1996 as amended, supplemented
and modified by the First Supplemental Indenture dated as of December 5, 1996
(the "First Supplemental Indenture"), and the Second Supplemental Indenture
dated as of December 12, 1996 (the "Second Supplemental Indenture"), and as
further amended, supplemented or modified from time to time (the "Indenture"),
between the Company and Texas Commerce Bank National Association, as trustee
(the "Trustee"). As of the date hereof, the Company has authorized the issuance
and sale of Notes from time to time at an aggregate initial offering price of up
to U.S. $300,000,000 to or through the Agents pursuant to the terms of this
Agreement. It is understood, however, that the Company may from time to time
authorize the issuance of additional Notes and that such additional Notes may be
sold to or through the Agents pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
As used herein, the following terms have the following meanings:
"Company" means Halliburton Company, a Delaware corporation.
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"Material Subsidiary" means Xxxxx & Root Holdings, Inc., Xxxxx & Root,
Inc., Xxxxx & Root, Ltd., Halliburton Energy Services, Inc.,
Halliburton Holdings, Inc. and Halliburton Affiliates Corporation.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers and
for the sale of Notes by the Company directly to investors (as may from time to
time be agreed to by the Company and the applicable Agent), in which case such
Agent will act as an agent of the Company in soliciting purchases of the Notes.
Notwithstanding the foregoing, the Company may issue and sell Notes, on terms
that are substantially similar (including discounts and commissions) to the
terms contained herein, to or through one or more agents, dealers or
underwriters that are not signatories hereto or, on its own behalf, directly to
investors or other purchasers thereof without the intervention of any agents,
dealers or underwriters, provided that the Company shall notify the Agent prior
to any such issuance and sale and shall provide the Agents with a copy of each
agreement with any such agent, dealer or underwriter promptly following the
execution thereof.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 33-65772) for the registration
of debt securities, including the Notes, under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the SEC under the 1933
Act (the "1933 Act Regulations"). Such registration statement has been declared
effective by the SEC and the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). If any post-effective
amendment to such registration statement has been filed with the SEC prior to
the execution and delivery of this Agreement, the most recent such amendment has
been declared effective by the SEC. Such registration statement (and any further
registration statements which may be filed by the Company for the purpose of
registering additional Notes and in connection with which this Agreement is
included or incorporated by reference as an exhibit) and the prospectus
constituting a part thereof, and any prospectus supplement and pricing
supplement relating to the Notes, including all documents incorporated therein
by reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act") or the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus," respectively, except that, if any revised
prospectus shall be provided to the Agents by the Company for use in connection
with the offering of the Notes, whether or not such revised prospectus is
required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations, the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Agents for such use.
SECTION
1. Appointment as Agent.
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(a) Appointment. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby agrees to sell Notes to or through the
Agents.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount that shall be
authorized by the Company from time to time or in excess of the aggregate
initial offering price of Notes registered pursuant to the Registration
Statement. The Agents shall have no responsibility for maintaining records with
respect to the aggregate initial offering price of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from the Company as principal, but one or more Agents may agree
from time to time to purchase Notes as principal for resale to investors and
other purchasers determined by such Agent or Agents. Any such purchase of Notes
by an Agent as principal shall be made in accordance with Section 3(a) hereof.
(d) Solicitations as Agent. In connection with each Agent's actions as
agent hereunder, such Agent agrees to use commercially reasonable efforts
consistent with standard industry practice to solicit and receive offers to
purchase Notes at the times and in the amounts agreed by such Agent and the
Company. Such Agent will communicate to the Company, orally, each offer to
purchase Notes solicited by it on an agency basis, other than those offers
rejected by such Agent. Such Agent shall have the right, in its discretion
reasonably exercised, to reject any proposed purchase of Notes, as a whole or in
part, and any such rejection shall not be deemed a breach of its agreement
contained herein. The Company may accept or reject any proposed purchase of
Notes, in whole or in part. Such Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by it and accepted by the Company.
(e) Reliance. The Company and the Agents agree that any Notes purchased
by one or more Agents as principal shall be purchased, and any Notes the
placement of which an Agent arranges as agent shall be placed by such Agent, in
reliance on the representations, warranties, covenants and agreements of the
Company contained herein and on the terms and conditions and in the manner
provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the date
hereof and as of each date specified in Section 7(a) herein (each of such times
being referred to herein as a "Representation Date"), as follows:
(i)Due Incorporation and Qualification. The Company has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the
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state of its incorporation with corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise.
(ii) Material Subsidiaries. Each Material 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 the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure 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 all of the issued and
outstanding capital stock of each Material Subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable 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.
(iii) Registration Statement and Prospectus. At the time
the Registration Statement became effective, the Registration Statement
complied, and as of each Repre sentation Date continues to comply, in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the rules and regulations of
the SEC promulgated thereunder; the Registration Statement, at the time
it became effective, did not, at each time thereafter at which any
amendment to the Registration Statement became effective or any Annual
Report on Form 10-K was filed by the Company with the SEC, did not and,
as of each Representation Date, does not, contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and the Prospectus, as of the date hereof and as of each
Representation Date, does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by the Agents expressly for use in the Registration
Statement or Prospectus. The parties hereto acknowledge that the
information set forth under the caption "Plan of Distribution"
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in the Prospectus has been provided by the Agents expressly for use in
the Registration Statement and Prospectus.
(iv) Incorporated Documents. The documents incorporated
by reference in the Prospectus, at the time they were filed with the
SEC, complied in all material respects with the requirements of the
1934 Act and the rules and regulations promulgated thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, did not and will not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were or are
made, not misleading.
(v) Accountants. The accountants who certified the
financial statements included or incorporated by reference in the
Prospectus are independent public accountants within the meaning of the
1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements and
any supporting schedules of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly in conformity with U.S. generally accepted
accounting principles applied on a consistent basis 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 and the supporting schedules included or incorporated
by reference in the Registration Statement and the Prospectus present
fairly the information required to be stated therein.
(vii) Authorization and Validity of this Agreement, the
Indenture and the Notes. This Agreement has been duly authorized,
executed and delivered by the Company and, upon execution and delivery
by the Agents, will be a valid and legally binding agreement of the
Company; the Indenture, including the First and Second Supplemental
Indentures, has been duly authorized, executed and delivered by the
Company and, upon execution and delivery by the Trustee, will be a
valid and legally binding agreement of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting enforcement
of creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing; the Notes have been duly and validly
authorized for issuance, offer and sale pursuant to this Agreement and,
when issued, authenticated and delivered pursuant to the provisions of
this Agreement and the Indenture against payment of the consideration
therefor, the Notes will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting enforcement of creditors' rights
generally, general equitable principles (whether considered in a
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proceeding in equity or at law) and an implied covenant of good faith
and fair dealing; the Notes and the Indenture will be substantially in
the form heretofore delivered to the Agents and conform in all material
respects to all statements relating thereto contained in the
Prospectus; and each holder of Notes will be entitled to the benefits
of the Indenture.
(viii) Material Changes or Material Transactions. Since
the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be
stated therein or contemplated thereby, (1) there has been no material
adverse change in the condition, financial or otherwise, or in the
results of operations or business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and (2) there have been
no material transactions entered into by the Company or any of its
subsidiaries other than in the ordinary course of business.
(ix) No Defaults. Neither the Company nor any of its
Material Subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any 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, which
violation or default, individually or in the aggregate, could
reasonably be expected to have a material adverse effect on the Company
and its subsidiaries considered as one enterprise; and the execution
and delivery of this Agreement and the Indenture, including the First
and Second Supplemental Indentures, and the consummation of the
transactions contemplated herein and therein have been duly authorized
by all necessary corporate action of the Company and will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to, any contract, indenture, mortgage, loan agreement, note, lease or
other instrument and 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 law, administrative
regulation or administrative or court order or decree, which breach,
default, lien or violation, individually or in the aggregate, could
reasonably be expected to have a material adverse effect on the Company
and its subsidiaries considered as one enterprise.
(x) Regulatory Approvals. No consent, approval,
authorization, order or decree of 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 Notes hereunder, except such as have been obtained or rendered,
as the case may be, or as may be required under state securities laws.
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(xi) Legal Proceedings. Except as may be disclosed in
the Registration Statement and the Prospectus, there is no action, suit
or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting, the Company or any of its
subsidiaries, which might, in the opinion of the Company, result in any
material adverse change in the condition, financial or otherwise, or in
the results of operations or business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise or might
materially and adversely affect the consummation of this Agreement or
the Indenture or any transaction contemplated hereby or thereby.
(xii) Contracts. There are no contracts or documents of
the Company or any of its subsidiaries which are required to be filed
as exhibits to the Registration Statement by the 1933 Act or by the
1933 Act Regulations which have not been so filed.
(xiii) 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").
(xiv) Commodity Exchange Act. The Notes, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture, will be excluded or exempted under the
provisions of the Commodity Exchange Act.
(xv) Ratings. The Notes are rated (P)A2 by Xxxxx'x
Investors Service, Inc. and [ ] by Standard & Poor's Ratings Group
or such other rating as to which the Company shall have most recently
notified the Agents pursuant to Section 4(a) hereof.
(xvi) Registration Rights. There are no holders of
securities of the Company who, by reason of the filing of the
Registration Statement under the Act or the execution by the Company of
this Agreement, have the right to request or demand that the Company
register under the Act securities held by them.
(b) Additional Certifications. Any certificate signed by any director
or officer of the Company and delivered to one or more Agents or to counsel for
the Agents in connection with an offering of Notes to one or more Agents as
principal or through an Agent as agent shall be deemed a representation and
warranty by the Company to such Agent or Agents as to the matters covered
thereby on the date of such certificate and at each Representation Date
subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed by an Agent and the
Company, Notes shall be purchased by one or more Agents as principal in
accordance with terms agreed upon by such Agent or Agents and the Company (which
terms, unless otherwise agreed, shall, to the extent applicable, include those
terms specified in Exhibit A hereto and be agreed upon
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orally, with written confirmation prepared by such Agent or Agents and mailed to
the Company). Unless the context otherwise requires, references herein to "this
Agreement" shall include the applicable agreement of one or more Agents to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto. The
Agents may engage the services of any other broker or dealer in connection with
the resale of the Notes purchased by them as principal and may allow all or any
portion of the discount received in connection with such purchases from the
Company to such brokers and dealers. At the time of each purchase of Notes by
one or more Agents as principal, such Agent or Agents shall specify the
requirements for the stand-off agreement, officers' certificate, opinions of
counsel and comfort letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d)
hereof.
(b) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its commercially reasonable efforts consistent with standard
industry practice to solicit and receive offers to purchase Notes at the times
and in the amounts so agreed. The Agents are not authorized to appoint
sub-agents with respect to Notes sold through them as agent. All Notes sold
through an Agent as agent will be sold at 100% of their principal amount unless
otherwise agreed by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend any
solicitation of purchases of the Notes through an Agent, as agent, commencing at
any time for any period of time or permanently. As soon as practicable after
receipt of instructions from the Company to such effect, such Agent will suspend
solicitation of purchases from the Company until such time as the Company has
advised such Agent that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount from the purchase price of each such Note, equal to the applicable
percentage of the principal amount of each Note sold by the Company as a result
of a solicitation made by such Agent as set forth in Schedule A hereto. If the
Company issues and sells Notes directly to an investor or other purchaser, no
commission will be paid to the Agents with respect to such sales.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and the applicable Agent or
Agents and specified in a pricing supplement to the Prospectus (each, a "Pricing
Supplement") to be prepared in connection with each sale of Notes. Except as may
be otherwise specified in the applicable Pricing Supplement, the Notes will be
issued in denominations of U.S. $1,000 or any larger amount that is an integral
multiple of U.S. $1,000. The Agents hereby acknowledge, consent to and agree
with the administrative procedures set forth as Exhibit C to the First
Supplemental Indenture (the "Procedures"). The Company, the Agents and the
Trustee from time to time may agree to modify the Procedures. The Agents and the
Company agree to perform, and the Company agrees to cause the Trustee to
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agree to perform, their respective duties and obligations specifically provided
to be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately, and confirm such notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the SEC for
filing of any amendment or supplement to the Prospectus or any document to be
filed pursuant to the 1934 Act (other than any amendment, supplement or document
relating solely to securities other than the Notes), (iii) the receipt of any
comments from the SEC with respect to the Registration Statement or the
Prospectus, (iv) any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, (v) the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose and (vi) any change in the rating assigned by any nationally
recognized statistical rating organization to the Notes 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 the Notes or the withdrawal by any nationally recognized statistical
rating organization of its rating of the Notes. 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.
(b) Notice of Certain Proposed Filings. The Company will give the
Agents advance notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes, any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus (other than an amendment or supplement providing solely for a change
in the interest rate or formula applicable to the Notes or relating solely to
the issuance and/or offering of securities other than the Notes), whether by the
filing of documents pursuant to the 1934 Act (other than reports filed by the
Company pursuant to Section 13 of the 0000 Xxx) or the 1933 Act or otherwise,
and will furnish to the Agents copies of any such amendment or supplement or
other documents proposed to be filed or used a reasonable time in advance of
such proposed filing or use, as the case may be, and will not file any such
amendment or supplement or other documents in a form to which the Agents or
counsel for the Agents shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
Company has heretofore delivered to counsel for the Agents signed and conformed
copies of the Registration Statement (as originally filed and declared effective
by the SEC) and will deliver to the Agents as many signed and conformed copies
of each post-effective amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by reference in the
Prospectus) as the Agents reasonably request. The Company will furnish to the
Agents as
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many copies of the Prospectus (as amended or supplemented) as the Agents
reasonably request so long as the Agents are required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold to or through one or more Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents and will file such Pricing Supplement pursuant
to Rule 424(b)(3) under the 1933 Act not later than the close of business of the
SEC on the fifth business day after the date on which such Pricing Supplement is
first used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (l) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the opinion of counsel for the Company, to amend or supplement
the Prospectus in order that the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company shall give
immediate notice, confirmed in writing, to the Agents to cease the solicitation
of offers to purchase the Notes in their capacity as agents and to cease sales
of any Notes they may then own as principal, and the Company will promptly amend
the Registration Statement and the Prospectus, whether by filing documents
pursuant to the 1934 Act or the 1933 Act or otherwise, as necessary to correct
such untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (l) of this Section, on the date on which there
shall be released to the general public interim financial statement information
related to the Company with respect to each of the first three quarters of any
fiscal year or preliminary financial statement information with respect to any
fiscal year, the Company shall furnish such information to the Agents, confirmed
in writing, and shall cause the Prospectus to be amended or supplemented to
include or incor porate by reference financial information with respect thereto
and corresponding information for the comparable period of the preceding fiscal
year, as well as such other information and explana tions as shall be necessary
for an understanding thereof or as shall be required by the 1933 Act or the 1933
Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (l) of this Section, on the date on which there
shall be released to the general public financial information included in or
derived from the audited financial statements of the Company for the preceding
fiscal year, the Company shall furnish such information to the Agents, confirmed
in writing, and shall cause the Registration Statement and the Prospectus to be
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amended, whether by the filing of documents pursuant to the 1934 Act or the 1933
Act or otherwise, to include or incorporate by reference such audited financial
statements and the report or reports, and consent or consents to such inclusion
or incorporation by reference, of the independent accountants with respect
thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company will, with respect to each sale of
Notes, make generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered thereby, an
earnings statement (in form complying with the pro visions of Rule 158 of the
1933 Act Regulations) covering each twelve-month period beginning, in each case,
not later than the first day of the Company's fiscal quarter next following the
"effective date of the registration statement" (as defined in Rule 158)
immediately preceding each such sale.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; pro vided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act in connection with
sales of the Notes, will file all documents required to be filed with the SEC
pursuant to Sections 13, 14 or 15(d) of the 1934 Act within the time periods
prescribed by the 1934 Act and the 1934 Act Regulations.
(k) Stand-Off Agreement. If specified by the applicable Agent or Agents
in connection with a purchase of Notes from the Company as principal, between
the date of the agreement to purchase such Notes and the Settlement Date with
respect to such purchase, the Company will not, without the prior written
consent of such Agent or Agents, offer or sell, grant any option for the sale
of, or enter into any agreement to sell, any debt securities of the Company
(other than the Notes that are to be sold pursuant to such agreement, commercial
paper in the ordinary course of business, promissory notes to reflect borrowings
pursuant to a bank credit agreement and intercompany indebtedness).
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(l) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e), (f) or (g) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agents pursuant to a
request from the Company and (ii) no Agent shall then hold any Notes purchased
as principal pursuant hereto, until the time the Company shall determine that
solicitation of purchases of the Notes should be resumed or an Agent shall
subsequently purchase Notes from the Company as principal.
SECTION 5. Conditions to Obligations.
The obligations of the Agents to purchase Notes from the Company as
principal and to solicit offers to purchase Notes as agent of the Company will
be subject to the accuracy of the representations and warranties on the part of
the Company herein and of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all its covenants and agreements herein contained
and to the following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agents:
(1) Opinion of Company Counsel. The favorable opinion
of Xxxxxx & Xxxxxx L.L.P., counsel to the Company, to the effect that:
(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 Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Prospectus.
(iii) This Agreement has been duly authorized, executed
and delivered by the Company.
(iv) The Indenture has been duly authorized, executed
and delivered by the Company and (assuming the Indenture has
been duly authorized, executed and delivered by the Trustee)
constitutes a legal, valid and binding agreement of the
Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting enforcement of
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing.
(v) The Notes, in the form(s) certified by the Company
as of the date hereof, have been duly authorized for issuance,
offer and sale pursuant to this
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Agreement or otherwise and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the
Indenture against payment of the consideration therefor, will
constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting enforce ment of
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing; and each
holder of Notes will be entitled to the benefits of the
Indenture.
(vi) The Notes and the Indenture conform in all material
respects to the statements relating thereto in the Prospectus;
and the statements in the Prospectus under the captions
"Description of Notes" and "Description of Debt Securities",
insofar as they purport to summarize certain provisions of
documents specifically referred to therein, are accurate
summaries of such provisions.
(vii) The Indenture has been duly qualified under the
1939 Act.
(viii) The Registration Statement and any post-effective
amendment thereto filed with the SEC on or prior to the date
hereof have been declared effective by the SEC under the 1933
Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the SEC.
(ix) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, as
of their respective effective or issue dates, comply as to
form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations; provided, however, that
such counsel need not express any opinion as to the financial
statements, including any financial schedules, and other
financial or statistical information included therein.
(x) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus complied when so
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations; provided, however, that such
counsel need not express any opinion as to the financial
statements, including any financial schedules, and other
financial or statistical information included therein.
(xi) No consent, approval, authorization, order or decree of
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 this Agreement
or the Indenture, except such as have been
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obtained or rendered, as the case may be, or as may be
required under the state securities laws.
(xii) The information contained in the Prospectus under the
caption "Certain United States Federal Income Tax
Considerations", to the extent that such information
constitutes matters of law, summaries of legal matters or
legal conclusions, has been reviewed by such counsel and is
correct.
(xiii) To the knowledge of such counsel, there are no
statutes or pending or threatened legal or governmental
proceedings required to be described in the Prospectus which
are not described as required, or any contracts or documents
of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement or incorporated by reference therein
which are not described and filed or incorporated by reference
therein as required; provided, however, that such counsel need
not express any opinion as to the financial statements,
including any financial schedules, and other financial or
statistical information included therein.
(2) Opinion of Vice President and Secretary. The
favorable opinion of the Vice President and Secretary of the
Company to the effect that:
(i) Each Material 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 conduct its business as
described in the Prospectus; and all of the issued and
outstanding capital stock of each Material Subsidiary has been
duly authorized and validly issued, is fully paid and
nonassessable, and, except for directors' qualifying shares
(if applicable), is owned by the Company, directly or
indirectly, free and clear of any security interest, mortgage,
pledge, lien, encum brance, claim or equity.
(ii) The issue and sale of the Notes by the Company and
the compliance by the Company with all of the provisions of
the Agreement will not breach or result in a default under any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument that, individually or in the
aggregate, is material to the Company and its subsidiaries
taken as one enterprise and to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such action violate the charter or by-laws of the
Company or any federal or Texas statute or the Delaware
General Corporation Law or any order known to such counsel,
after due investigation, issued by any court or governmental
agency or body or court having jurisdiction over the Company
or any of its subsidiaries or any of their properties.
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(iii) To such counsel's knowledge, there are no contracts,
agreements or understandings between the Company and any
person granting such person the right to require the Company
to include any securities of the Company owned or to be owned
by such person in the securities registered pursuant to the
Registration Statement.
(3) Opinion of Counsel to the Agents. The favorable opinion of
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Agents, covering the matters
referred to in subsection (a)(1) under the subheadings (i), (iii) to
(ix) inclusive above.
(4) Disclosure Documents. In giving their opinions required by
subsection (a)(1) and (a)(3), respectively, of this Section 5, Xxxxxx &
Xxxxxx L.L.P. and Xxxxxxx Xxxxxxx & Xxxxxxxx shall each additionally
state that nothing has come to their attention that would lead them to
believe that the Registration Statement, at the time it became
effective (or, if an amendment to the Registration Statement or an
Annual Report on Form 10-K has been filed by the Company with the SEC
subsequent to the effectiveness of the Registra tion Statement, then at
the time such amendment became effective or at the time of the most
recent such filing, as the case may be) or at the date hereof,
contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or
that the Prospectus, at the date hereof (or, if such opinion is being
delivered in connection with the purchase of Notes from the Company by
one or more Agents as principal pursuant to Section 7(c) hereof, at the
date of any agreement by such Agent or Agents to purchase Notes as
principal and at the Settlement Date with respect thereto, as the case
may be) 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.
(b) Officer's Certificate. At the date hereof, the Agents shall have
received a certificate of the Chairman of the Board, President and Chief
Executive Officer or any Executive or Senior Vice President and the principal
financial officer or principal accounting officer of the Company, dated as of
the date hereof, to the effect that (i), since the respective dates as of which
information is given in the Prospectus and since the date of any agreement by
one or more Agents to purchase Notes from the Company as principal, there has
not been any material adverse change in the condition, financial or otherwise,
or in the results of operations or 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, (ii) the representations and
warranties of the Company contained in Section 2 hereof are true and correct
with the same force and effect as though expressly made at and as of the date of
such certificate and (iii) the Company has performed or complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the date of such certificate.
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(c) Comfort Letter of Xxxxxx Xxxxxxxx LLP. On the date hereof, the
Agents shall have received a letter from Xxxxxx Xxxxxxxx LLP, dated as of the
date hereof and in form and substance satisfactory to the Agents, to the effect
that:
(i) They are independent accountants with respect to the Company
within the meaning of the 1933 Act, the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations.
(ii) It is their opinion that the consolidated financial
statements and supporting schedule(s) of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus and audited by them and covered by their
opinions therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not constituting
an audit, including a reading of the latest available interim financial
statements of the Company and its indicated subsidiaries, a reading of
the minute books of the Company and such subsidiaries since the end of
the most recent fiscal year with respect to which an audit report has
been issued, inquiries of and discussions with certain officials of the
Company and such subsidiaries responsible for financial and accounting
matters with respect to the unaudited consolidated financial statements
included or incorporated by reference in the Registration Statement and
Prospectus and the latest available interim unaudited financial
statements of the Company and its subsidiaries, and such other
inquiries and procedures as may be specified in such letter, and on the
basis of such inquiries and procedures, nothing came to their attention
that caused them to believe that: (A) any material modifications should
be made to the unaudited consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus for them to be in conformity
with generally accepted accounting principles in the United States,
consistently applied by the Company, (B) the unaudited consolidated
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the 1934 Act Regulations or
(C) at a specified date not more than five days prior to the date of
such letter, there was any change in the consolidated capital stock,
any increase in consolidated long-term debt or any decrease in the
consolidated net current assets or consolidated net assets of the
Company and its subsidiaries, in each case as compared with the amounts
shown on the most recent consolidated balance sheet of the Company and
its subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus or, during the period from the
date of such balance sheet to a specified date not more than five days
prior to the date of such letter, there were any decreases, as compared
with the corresponding period in the preceding year, in consolidated
revenues or in the total or per-share amounts of income before
extraordinary items or of net income of the Company and
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its subsidiaries, except in all instances for changes, increases or
decreases that the Registration Statement and Prospectus disclose have
occurred or may occur and except for such matters enumerated in such
letter as shall have been agreed to by the Agents and the Company.
(iv) In addition to the audit referred to in their opinions and
the limited procedures referred to in clause (iii) above, they have
carried out certain specified procedures, not constituting an audit,
with respect to certain amounts, percentages and financial information
which are included or incorporated by reference in the Registration
Statement and the Prospectus and which are specified by the Agents, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of
the Company and its subsidiaries identified in such letter.
(d) Other Documents. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the applicable Agent or Agents by notice to the Company at any time without
liability of any party to any other party. Notwithstanding such termination, the
covenant regarding provision of an earnings statement set forth in Section 4(h)
hereof, the provisions concerning payment of expenses under Section 10 hereof,
the indemnity and contribution agreement set forth in Sections 8 and 9 hereof,
the provisions set forth in Section 11 hereof concerning the representations,
warranties and agreements to survive delivery, the provisions relating to
governing law and forum set forth in Section 14 and the provisions relating to
parties set forth in Section 15 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through an Agent.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. If a purchaser shall fail either to
accept delivery of or to make payment for a Note on the date fixed for
settlement, such Agent shall promptly notify the Company and return such Note to
the Company and, if such Agent has theretofore paid the Company for such Note,
the Company will promptly return such funds to such Agent. If such failure
occurred for any reason other than default by such Agent in the performance of
its obligations hereunder, the Company will reimburse such Agent on an equitable
basis for its loss of the use of the funds for the period such
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funds were credited to the Company's account and such Agent shall not have any
liability to the Company. If the Company shall default on its obligation to
deliver Notes to a purchaser whose offer it has accepted, the Company shall (i)
hold such Agent harmless against any loss, claim or damage arising from or as a
result of such default by the Company and (ii) pay to such Agent any commission
to which it would otherwise be entitled absent such default. No Agent shall have
any liability to the Company in the event any purchase is not consummated for
any reason other than the gross negligence or willful misconduct of the Agent.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate theretofore delivered
to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, as though made at and as of each such
time (and it is understood that such representations and warranties shall relate
to the Registration Statement and Prospectus as amended and supplemented to each
such time).
(b) Subsequent Delivery of Certificates. Upon (i) the effectiveness of
any amendment or supplement to the Registration Statement or the Prospectus
(other than any amendment or supplement effected by means of the filing of a
report pursuant to Section 13 of the Exchange Act or a pricing supplement or
relating to the offering, sale and delivery of securities other than the Notes),
(ii) the filing by the Company of any report on Form 10-Q or Form 10-K with the
SEC, (iii) the sale of Notes to any Agent as principal, if such Agent so
requests and (iv) the sale of Notes to or through any Agent in a form not
previously certified by the Company to the Agents (each such date, a "Subsequent
Delivery Date"), the Company shall furnish or cause to be furnished to each
relevant Agent a certificate dated such Subsequent Delivery Date and otherwise
satisfactory in form to such Agent to the effect that the statements contained
in the certificate referred to in Section 5(b) hereof which was last furnished
to such Agent are true and correct at the time of such amendment, supplement,
filing or sale, as the case may be, as though made at and as of such time or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in Section 5(b) hereof, modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate provided, however, that, with respect to
each Subsequent Delivery Date described in Section 7(b)(i) and (ii) above, in
the event that the conditions of Section 4(l)(i) hereof have been satisfied and
the Company has notified the Agents in writing that offerings of Notes are
suspended, then the Company shall be required to furnish or cause to be
furnished such certificate only prior to the date that offerings of Notes may be
resumed.
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(c) Subsequent Delivery of Legal Opinions. Upon each Subsequent
Delivery Date, the Company shall furnish or cause to be furnished to each
relevant Agent and to counsel to such Agent the written opinion of Xxxxxx &
Xxxxxx L.L.P., counsel to the Company, or other counsel satisfactory to such
Agent, dated such Subsequent Delivery Date and otherwise satisfactory in form
and substance to such Agent, of the same tenor as the opinion referred to in
Section 5(a)(1) hereof or, in lieu of such opinion, counsel last furnishing such
opinion to such Agent shall furnish such Agent with a letter substantially to
the effect that such Agent may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reli ance) provided, however, that, with respect to
each Subsequent Delivery Date described in Section 7(b)(i) and (ii) above, in
the event that the conditions of Section 4(l)(i) hereof have been satisfied and
the Company has notified the Agents in writing that offerings of Notes are
suspended, then the Company shall be required to furnish or cause to be
furnished such opinion only prior to the date that offerings of Notes may be
resumed.
(d) Subsequent Delivery of Comfort Letters. Upon each Subsequent
Delivery Date, other than a date solely referred to in clause (iv) of the
definition thereof, the Company shall cause Xxxxxx Xxxxxxxx LLP to furnish to
each relevant Agent a letter, dated such Subsequent Delivery Date and otherwise
satisfactory in form to such Agent, of the same tenor as the portions of the
letter referred to in clauses (i) and (ii) of Section 5(c) hereof and of the
same general tenor as the portions of the letter referred to in clauses (iii)
and (iv) of said Section 5(c) with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company. Notwithstanding the foregoing, the Company
shall not be required to furnish a letter of the same general tenor as the
portion of the letter referred to in clause (iv) of Section 5(c) to the extent
that the amounts, percentages and financial information referred to in such
clause can be derived from the financial statements referred to in clause (ii)
of Section 5(c) provided, however, that, with respect to each Subsequent
Delivery Date described in Section 7(b)(i) and (ii) above, in the event that the
conditions of Section 4(l)(i) hereof have been satisfied and the Company has
notified the Agents in writing that offerings of Notes are suspended, then the
Company shall be required to furnish or cause to be furnished such comfort
letter only prior to the date that offerings of Notes may be resumed.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls such Agent within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever ("Losses"), as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact necessary to make the
statements
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therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, unless such untrue statement or omission or such
alleged untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement or the
Prospectus;
(ii) Losses shall include the aggregate amount paid in
settlement of any litigation, any investigation or proceeding by any
governmental agency or body, com menced or threatened, or any claim
whatsoever based upon any such untrue statement or omission or any such
alleged untrue statement or omission, if such settlement is effected
with the written consent of the Company; and
(iii) Losses shall include any and all expense whatsoever
(including the fees and disbursements of counsel chosen by such Agent),
reasonably incurred in investigating, preparing or defending against
any litigation, 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.
(b) Indemnification of the Company. Each Agent agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all Losses, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure so to notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action with
counsel chosen by it (who shall not, except with the consent of the indemnified
party, be counsel to such indemnified party). In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) 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.
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SECTION 9. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Agents shall contribute to the aggregate Losses incurred by the
Company and the Agents, as incurred, in such proportions that each Agent is
responsible for that portion represented by the percentage that the commission
or underwriting discount received by such Agent bears to the total sales price
from the sale of the Notes sold to or through such Agent that were the subject
of the claim for indemnification, and the Company is responsible for the
balance; provided, however, that 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, each person, if any, who
controls an Agent within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as such Agent, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or supplements
thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the eligibility and issuance of
Notes in book-entry form;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any calculation agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program relating to the
Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky or Legal
Investment Survey;
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(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, and
the delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the Notes;
(h) The preparation, reproducing and delivery to the Agents of
copies of the Indenture and all amendments, supplements and modifications
thereto;
(i) Any fees charged by nationally recognized statistical rating
organizations for the rating of the Notes;
(j) The fees and expenses incurred in connection with any listing
of Notes on a securities exchange;
(k) The fees and expenses incurred with respect to any filing with
the National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company; and
(m) The cost of providing any CUSIP or other identification
numbers for the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certifi xxxxx of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of an Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the Company as principal)
may be terminated for any reason, at any time by either the Company or an Agent,
as to itself, upon the giving of 30 days' written notice of such termination to
the other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent or Agents may terminate any agreement by such Agent or Agents
to purchase Notes from the Company as principal, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto, if (i) there
has been, since the date of such agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse
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change in the condition, financial or otherwise, or in the results of operations
or 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, (ii) there shall have occurred any material adverse change in the
financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis the effect of
which is such as to make it, in the judgment of such Agent or Agents,
impracticable to market the Notes or to enforce contracts for the sale of the
Notes, (iii) trading in any securities of the Company has been suspended by the
SEC or a national securities exchange, (iv) trading generally on either the
American Stock Exchange or the New York Stock Exchange shall have been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the SEC or any other governmental authority, (v) a banking
moratorium shall have been declared by either Federal, New York or Texas
authorities, (vi) the rating assigned by any nationally recognized statistical
rating organization to any debt securities of the Company as of the date of such
agreement shall have been lowered since that date or any such rating
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any debt securities
of the Company or (vii) there shall have come to the attention of such Agent or
Agents any facts that would cause them to believe that the Prospectus, at the
time it was required to be delivered to a purchaser of Notes, 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 circum stances existing at
the time of such delivery, not misleading.
(c) General. In the event of any termination of this Agreement pursuant
to this Section 12, neither party will have any liability to the other party
hereto, except that (i) the Agents shall be entitled to any commission earned in
accordance with the third paragraph of Section 3(b) hereof, (ii) if at the time
of termination (x) any Agent shall own any Notes purchased by it as principal
with the intention of reselling them or (y) an offer to purchase any of the
Notes has been accepted by the Company but the time of delivery to the purchaser
or his agent of the Note or Notes relating thereto has not occurred, the
covenants set forth in Sections 4 and 7 hereof shall remain in effect until such
Notes are so resold or delivered, as the case may be, and (iii) the covenant set
forth in Section 4(h) hereof, the indemnity and contribution agreements set
forth in Sections 8 and 9 hereof, and the provisions of Sections 10, 11, 14 and
15 hereof shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the addresses specified below.
If to the Company:
Halliburton Company
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0000 Xxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Vice President and Treasurer
Telecopy No.: (000) 000-0000
with a copy to:
Halliburton Company
0000 Xxxxxxx Xxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Vice President and Secretary
Telecopy No.: (000) 000-0000
If to the Agents:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
Xxxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: MTN Product Management
Telecopy No.: (000) 000-0000
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law; Forum.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State and without
regard to principles of conflict of laws. The Company, on behalf of itself and
each of its subsidiaries now existing or hereafter created or acquired, hereby
irrevocably and unconditionally: (a) submits for itself and its property in any
legal action or proceeding relating to or arising out of this Agreement or the
offering or sale of the Notes, or the conduct of any party with respect thereto,
or for recognition and enforcement of any judgment in respect thereof, to the
nonexclusive general jurisdiction of the courts of the state of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof; (b) consents that any such action or
proceeding may be brought in such courts and waives to the fullest extent
permitted by law any objection that it may now or hereafter have to the venue of
any such action or proceeding in any such court or that
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such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same; (c) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by registered or
certified mail or any substantially similar form of mail, postage prepaid, to
the Company at its address set forth herein or at such other address of which
the Agents shall have been notified in accordance herewith; and (d) agrees that
nothing herein shall affect the right to effect service of process in any other
manner permitted by law or shall limit the right to xxx in any other
jurisdiction.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 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. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
SECTION 16. Assignment.
This Agreement may not be assigned by any party hereto without the
prior written consent of each other party hereto.
SECTION 17. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
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If the foregoing is in accordance with the Agents' 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 Agents and the Company in accordance with its terms.
Very truly yours,
HALLIBURTON COMPANY
By: /s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
Confirmed and Accepted, as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/Xxxxx X. Xxxxxxxx
XXXXXX BROTHERS
By: /s/X.X. Wigdorft
XXXXXX XXXXXXX & CO., INCORPORATED
By: /s/Xxxxxx X. Xxxxxxxxxx III
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/Xxxx X. XxXxxxxxx
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EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Company in connection with each sale of Notes:
Principal Amount: U.S. $_______
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
|_| LIBOR Reuters
|_| LIBOR Telerate
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Settlement Date and Time:
Additional/Other Terms:
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Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinions pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution
Agreement.
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SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year........................... .125%
From 1 year to less than 18 months.......................... .150
From 18 months to less than 2 years......................... .200
From 2 years to less than 3 years........................... .250
From 3 years to less than 4 years........................... .350
From 4 years to less than 5 years........................... .450
From 5 years to less than 6 years........................... .500
From 6 years to less than 7 years........................... .550
From 7 years to less than 10 years.......................... .600
From 10 years to less than 15 years......................... .625
From 15 years to less than 20 years......................... .700
From 20 years to 30 years................................... .750
Greater than 30 years. . . . . . . . . . . . . . . . . .... *
--------
* As agreed to by the Company and the applicable Agent at the time of sale.
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