EXHIBIT 1
Dealer-Manager Agreement
January __, 1998
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 100 19
Ladies and Gentlemen:
This agreement (the "Agreement") will confirm the understanding between
Pennzoil Company, a Delaware corporation, and its subsidiaries (collectively,
the "Company") and PaineWebber Incorporated ("PaineWebber") pursuant to which
the Company has retained PaineWebber to act as its exclusive dealer manager, on
the terms and subject to the conditions set forth herein, in connection with the
proposed offer by the Company to acquire, a portion of the Company's 4 3/4%
Exchangeable Senior Debentures due 2003 and 6 1/2% Exchangeable Senior
Debentures due 2003 (together being the "Securities") and the issuance by the
Company of newly issued exchangeable senior debentures due 2008 (the "New
Debentures"), with a principal amount and bearing an interest rate to be
determined as set forth in the Prospectus referred to below. The New Debentures
will be a series of the Company's debt securities and will be issued under the
Indenture dated as of December 15, 1992 and the Third Supplemental Indenture
dated as of _________,1998 (the "Supplemental Indenture"), both between the
Company and Texas Commerce Bank, N.A (the "Trustee"). The transaction, which is
intended to result in the partial acquisition of the Securities by or on behalf
of the Company as proposed to be accomplished through an exchange of securities
by the Company, is referred to herein as the "Exchange Offer." The making of the
Exchange Offer, the exchange of Securities pursuant thereto, and all related
incidental acts and transactions are hereinafter referred to collectively as the
"Exchange Offer Transactions." The following sets forth the agreement between
the Company and PaineWebber:
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January _______, 1998
Page 2
SECTION 1. Appointment as Dealer Manager.
The Company hereby appoints PaineWebber on an exclusive basis to act as
financial advisor with respect to the Exchange Offer Transactions and as sole
dealer manager for the Exchange Offer, and hereby authorizes PaineWebber to act
as such in connection therewith. PaineWebber agrees to perform those services as
dealer manager with respect to the Exchange Offer as are customarily performed
by PaineWebber in connection with tender offers of a like nature, including (but
not limited to) using its best efforts to solicit tenders of Securities pursuant
to the Exchange Offer and in communicating with other brokers, dealers,
commercial banks and trust companies (collectively, "Dealers"). In soliciting or
obtaining tenders, (i) PaineWebber, as dealer manager, shall not be deemed to be
acting as the agent of the Company other than pursuant to this Agreement or as
the agent of any Dealer, (ii) the Company will not pay any person any commission
or other remuneration, directly or indirectly, for the solicitation of the
Exchange Offer (other than PaineWebber) and (iii) no Dealer shall be deemed to
be acting as the agent of PaineWebber. It is understood that PaineWebber is
being engaged hereunder solely to provide the services described above on behalf
of the Company, and that PaineWebber is not acting as an agent or fiduciary of,
and shall have no duties or liability to, the equity holders of the Company or
any other third party in connection with its engagement hereunder, all of which
are hereby expressly waived.
SECTION 2. Exchange Offer Materials.
Prior to the commencement of the Exchange Offer, the Company agrees to
furnish you, at the Company's expense, with as many copies as you may reasonably
request of (i) each of the documents that is filed with the Securities and
Exchange Commission (the "Commission"), including each registration statement,
preliminary and final prospectus filed with the Commission (such final
prospectus included in such registration statement as amended at the time it
becomes effective is herein called the "Prospectus," except that, if the
prospectus first filed by the Company pursuant to Rule 424(b) of the rules and
regulations of the Commission shall differ from the Prospectus, the term
"Prospectus" shall also include the prospectus first filed pursuant to Rule
424(b)), in connection with the Exchange Offer, (ii) each offering circular,
sales memorandum, term sheet, proposed agreement, invitation to negotiate,
private placement memorandum, solicitation statement, disclosure document, or
other explanatory statement, or other report, filing, document, release or
communication mailed, delivered, published, or filed by or on behalf of the
Company in connection with the Exchange Offer, (iii) each document required to
be filed with the Commission pursuant to the provisions of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), pertaining to the Company
during the term of this Agreement and (iv) each appendix, attachment,
modification, amendment or supplement to any of the foregoing and all related
documents, including but not limited to each related letter of transmittal (each
of (i), (ii), (iii) and (iv), an "Exchange Offer Document" and, collectively,
the "Exchange Offer Documents"). At the commencement of the Exchange Offer, the
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January _______, 1998
Page 3
Company shall cause timely to be delivered to each registered holder of any
Securities legally or contractually entitled thereto, each Exchange Offer
Document and any other offering materials prepared expressly for use by holders
of Securities tendering, voting, or otherwise participating in the Exchange
Offer, together with a return envelope. Thereafter, to the extent practicable,
until the expiration of the Exchange Offer, the Company shall use its best
efforts to cause copies of such materials and a return envelope to be mailed to
each person who becomes a holder of any Securities.
The Company agrees that, at a reasonable time prior to using any material
in connection with the Exchange Offer or filing any such material with the
Commission or any other federal or state agency, commission or instrumentality,
the Company will submit copies of such material to PaineWebber and will consult
with PaineWebber and give reasonable consideration to its comments, if any, with
respect thereto. In connection with the Exchange Offer, if the Company (a) uses
or permits the use of, or files with the Commission or any other governmental or
regulatory agency, authority or instrumentality, any Exchange Offer Document
that (i) has not been submitted to PaineWebber on a timely basis for
PaineWebber's comments or (ii) has been so submitted and with respect to which
PaineWebber reasonably objects or (b) shall have breached any of its
representations, warranties, agreements, or covenants herein, then PaineWebber
shall be entitled to withdraw as a dealer manager in connection with the
Exchange Offer, without any liability or penalty to PaineWebber or any other
Indemnified Person (as defined in paragraph 6 hereof) for such withdrawal and
without loss of any right to indemnification or contribution provided in this
Agreement or to the payment of all fees and expenses payable hereunder that have
accrued to the date of such withdrawal. In the event of any such withdrawal, for
the purpose of determining the fees payable to PaineWebber pursuant to this
Agreement, PaineWebber shall remain entitled to receive the payment of all fees
and expenses payable under this Agreement that have accrued to the date of any
such withdrawal. The Company recognizes and confirms that, in connection with
the Exchange Offer, PaineWebber will be using and relying upon (i) information
(both written and oral), documents (including the Exchange Offer Documents) and
data furnished by the Company to PaineWebber, and (ii) information available
from filings made by the Company pursuant to the Exchange Act which have been
approved for such use by the Company (collectively the "Information"). The
Company further recognizes that PaineWebber does not assume responsibility for
the accuracy or completeness of the Information and will not undertake to
independently verify its accuracy or completeness.
The Company agrees that any reference to PaineWebber or any affiliate of
PaineWebber in any Exchange Offer Document or any release or written
communication, is subject to PaineWebber's prior approval. If PaineWebber
resigns prior to the dissemination of any Exchange Offer Document or any release
or communication, no reference shall be made therein to PaineWebber.
PaineWebber Incorporated
January _______, 1998
Page 4
SECTION 3. Compensation.
The Company will pay PaineWebber for services to be rendered by PaineWebber
hereunder as set forth in the compensation provisions of the agreement dated
August 1, 1997, between Pennzoil Company and PaineWebber (the "Prior
Agreement"), and the amendment thereto dated December 19, 1997 (the
"Amendment") which compensation provisions are incorporated as if restated
herein in full and shall remain as a part of this Agreement notwithstanding any
termination, amendment or purported invalidity of the Prior Agreement or
Amendment. A form of the Prior Agreement and Amendment is attached hereto as
Exhibit A.
SECTION 4. Expenses; Reimbursement Thereof.
The Company will pay or cause to be paid (i) all fees and expenses relating
to the preparation, printing, filing, mailing and publishing of all documents
pertaining to the Exchange Offer; (ii) all fees and expenses of any depositary,
information agent or other agents, attorneys and other persons retained by the
Company in connection with the Exchange Offer; (iii) all fees, if any, payable
to Dealers (including PaineWebber) as reimbursement for their customary mailing
and handling expenses in forwarding materials related to the Exchange Offer to
their customers; (iv) all advertising charges; and (v) all other fees and
expenses incurred in connection with or relating to the Exchange Offer. In
addition, the Company agrees to reimburse PaineWebber and its affiliates,
promptly upon request, for all out-of-pocket expenses, including (without
limiting the foregoing) the fees, costs and expenses of PaineWebber's legal
counsel, incurred in connection with the Exchange Offer Transactions.
SECTION 5. Limitation on Liability.
Neither PaineWebber nor any affiliate thereof shall have any liability to
the Company or any affiliate thereof for any losses, claims, damages,
liabilities or expenses ("Liabilities") arising from any act or omission on the
part of any Dealer, or from PaineWebber's acts or omissions in performing its
obligations hereunder or otherwise in connection with the Exchange Offer
Transactions, except to the extent that such Liabilities are finally judicially
determined by a court of competent jurisdiction to have resulted primarily from
PaineWebber's willful misconduct or gross negligence.
SECTION 6. Indemnification and Contribution.
The Company hereby agrees (i) to indemnify and hold harmless PaineWebber,
its affiliated companies, and each of PaineWebber's and such affiliated
companies' respective officers, directors, agents, employees and controlling
persons (within the meaning of Section 20 of the Exchange Act and Section 15 of
the Securities Act of 1933, as amended (the "Securities Act")) (each of the
foregoing, including PaineWebber, being hereafter sometimes called an
"Indemnified Person"), to the
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January _______, 1998
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fullest extent permitted by law from and against any and all Liabilities,
actions (including shareholder derivative actions), proceedings, investigations
(whether formal or informal) or inquiries, or threats thereof, based on or
arising out of (1) any untrue statement or alleged untrue statement of any
material fact in any Exchange Offer Document, (2) any omission or alleged
omission of any material fact required to be stated in any Exchange Offer
Document or necessary to make the statement made in any Exchange Offer Document,
in light of the circumstances under which it was made, not misleading, (3) any
withdrawal, termination or cancellation of any one or more of the Exchange Offer
Transactions for any reason whatsoever, (4) any tender, purchase, exchange or
other acquisition by the Company or any affiliate thereof of Securities
(including, without limiting the foregoing, any purchase prior to the date
hereof as to which PaineWebber acted as broker or dealer), (5) any violation by
or conflict of the Exchange Offer or any of the Exchange Offer Transactions of
or with any law, rule, regulation, order, award, judgment, determination, writ,
injunction or decree of any United States federal, state, local or foreign court
or governmental authority, (6) any breach by the Company of any representation
or warranty or any failure to comply with any of the agreements contained herein
or any agreement relating to the Exchange Offer or the Exchange Offer
Transactions, or (7) the Exchange Offer, the Exchange Offer Transactions or
PaineWebber's engagement hereunder, and (ii) in connection with the foregoing
obligations, to reimburse each Indemnified Person for all expenses (including
fees, disbursements and other charges of counsel) as they are incurred by such
Indemnified Person in connection with investigating, preparing to defend or
defending any such action (including actions brought by the Company or the
Company's equity holders or derivative actions brought by any person claiming
through the Company or in the Company's name), proceeding, investigation or
inquiry, or threat thereof, whether or not any such action, proceeding,
investigation or inquiry is actually or formally commenced or any such
Indemnified Person is a party thereto or subject thereof. Notwithstanding the
foregoing, the Company shall not be obligated to indemnify any such Indemnified
Person under this Section 6 with respect to any Liability, and amounts paid in
reimbursement of expenses under this Section 6 shall be refunded, to the extent,
but only to the extent, that it is finally judicially determined (i) that such
Liability resulted primarily from an untrue statement of any material fact in
any Exchange Offer Document or any omission to state any material fact required
to be stated in any Exchange Offer Documents, or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading, if, in any such case, such statement or omission was made
in such Exchange Offer Documents in reliance upon and in conformity with written
information prepared by and relating to PaineWebber and furnished to the Company
in writing by PaineWebber or (ii) in the case of Liabilities against which
Indemnified Persons are indemnified solely under clause (i)(7) of the preceding
sentence, that such Liability resulted primarily from the willful misconduct or
gross negligence of such Indemnified Person. If multiple claims are brought
against any Indemnified Person in an arbitration or other proceeding and at
least one such claim is based upon, relates to or arises out of PaineWebber's
services hereunder or any Indemnified Person's role thereunder, the Company
agrees that any award, judgment and other liabilities resulting therefrom shall
be deemed conclusively to be based on, relate to or arise out of PaineWebber's
services hereunder or any
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January _______, 1998
Page 6
Indemnified Person's role thereunder, except to the extent that such award or
judgment expressly states that the award or judgment, or any portion thereof is
based solely upon, relates to or arises out of other matters for which
indemnification is not available hereunder.
If any litigation, proceeding or investigation is instituted or threatened
against any Indemnified Person in respect of which indemnity may be sought
against the Company pursuant to this Section 6, such indemnified person shall
promptly notify the Company thereof, but the omission so to notify the Company
shall not relieve the Company from any obligation or liability under this
Section 6, unless, and only to the extent that, such omission so to notify
results in the loss of substantive rights or defenses. If any such litigation or
proceeding shall be brought against any Indemnified Person, the Company shall be
entitled to participate in such litigation or proceeding and, after written
notice from the Company to such Indemnified Person, to assume the defense of
such litigation or proceeding with counsel of the Company's choice at its
expense; provided, however, that such counsel shall be satisfactory to the
Indemnified Person. Notwithstanding the election of the Company to assume the
defense of such litigation or proceeding, such Indemnified Person shall have the
right to employ separate counsel and to control its own defense of such
litigation or proceeding, and the Company shall bear the fees and disbursements
of such separate counsel, if, in the reasonable opinion of counsel to such
Indemnified Person, (i) there may be legal defenses available to such
Indemnified Person or to other Indemnified Persons that are different from or
additional to those available to the Company or (ii) a conflict or potential
conflict otherwise exists between such Indemnified Person and the Company that
would make such separate representation advisable; provided, however, that the
Company shall not under any circumstances be liable hereunder for the expenses
of more than one firm of attorneys in any jurisdiction in any one legal action
or group of related legal actions. The Company agrees that it will not, without
the prior written consent of PaineWebber, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action or proceeding
relating to the Exchange Offer Transactions or PaineWebber's engagement
hereunder (whether or not any Indemnified Person is a party thereto) unless such
settlement, compromise or consent includes an unconditional release of
PaineWebber and each other Indemnified Person from all liability. arising or
that may arise out of such claim, action or proceeding.
If the indemnification provided for in this Section 6 is held by a court of
competent jurisdiction to be unavailable to any Indemnified Person in respect of
any Liabilities referred to herein (other than as a consequence of a final
judicial determination as set forth in the second sentence of the first
paragraph of this Section 6), then the Company in lieu of indemnifying such
Indemnified Person, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such Liabilities in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by such Indemnified Person on the other from the Exchange Offer
Transactions. If the allocation provided in the preceding sentence is not
permitted by applicable law, or as a consequence of a final judicial
determination as set forth in the second sentence of the first paragraph
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January _______, 1998
Page 7
of this Section 6, then the Company agrees to contribute to the amount paid or
payable by such Indemnified Person as a result of such Liabilities in such
proportion as is appropriate to reflect not only the relative benefits referred
to in the preceding sentence, but also the relative fault of the Company on the
one hand and of such Indemnified Person on the other in connection with the
statements or omissions or other actions relating to or in connection with the
Exchange Offer Transactions or PaineWebber's engagement hereunder that resulted
in such Liabilities. Notwithstanding the foregoing, in no event shall the
aggregate amount contributed by the Indemnified Persons taking into account the
contribution of Company as described above exceed the amount of fees actually
paid to PaineWebber by Company pursuant to this Agreement in connection with the
Exchange Offer Transactions. The relative benefits received by the Company on
the one hand and PaineWebber on the other shall be deemed to be in the same
proportion as (i) the aggregate value of the maximum number of Securities
offered to be exchanged pursuant to the Exchange Offer bears to (ii) the fees
paid to PaineWebber pursuant to this Agreement. The relative fault of the
Company on the one hand and of PaineWebber on the other shall be determined by
reference to, among other things, whether any untrue or alleged untrue statement
of, or any omission or alleged omission to state, a material fact relates to
information supplied by the Company or by PaineWebber and by reference to the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The foregoing indemnification and
contribution agreement shall be in addition to any rights that any Indemnified
Person may have at common law, by separate agreement or otherwise.
SECTION 7. Representations, Warranties and Covenants.
The Company represents and warrants to, and covenants with, PaineWebber that:
(i) The Company is a corporation duly organized and validly
existing in good standing under the laws of the jurisdiction of its
incorporation.
(ii) The Company has taken all necessary corporate action to
authorize the Exchange Offer.
(iii) This Agreement has been duly authorized, executed and
delivered by, and is a legal, valid and binding agreement of, the Company
and is enforceable against Company in accordance with its terms.
(iv) The Exchange Offer Transactions comply and will comply in
all material respects with all applicable requirements of law, the
corporate laws of the state in which the Company is incorporated and any
applicable state "blue sky" laws.
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January _______, 1998
Page 8
(v) When the registration statement filed in connection with the
Exchange Offer (the "Registration Statement") becomes effective and at all times
subsequent thereto up to and including the date on which the Company commences
the Exchange Offer (the "Commencement Date"), the initial termination date of
the Exchange Offer (the "Effective Date of Exchange"), which shall be
______________, 1998 and, if the Exchange Offer is extended in accordance with
its terms, such subsequent expiration date of the Exchange Offer (the "Further
Effective Date of Exchange"), (a) the Registration Statement and Prospectus, and
any amendments or supplements thereto, and the other Exchange Offer Documents,
and any supplements thereto, will contain all statements that are required to be
stated in accordance with the Securities Act, the Exchange Act and the Trust
Indenture Act of 1939, as amended (together with the rules and regulations
thereunder, the "Trust Indenture Act") and will in all material respects conform
to the requirements of the Securities Act, the Exchange Act and the Trust
Indenture Act, (b) the Registration Statement and any amendment or supplement
thereto at their respective effective dates will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(c) the Prospectus and the other Exchange Offer Documents, together with any
supplement thereto, will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
except that this representation and warranty does not apply to statements or
omissions made in reliance upon and in conformity with information relating to
PaineWebber, furnished in writing to the Company in connection with the
Registration Statement or Prospectus and the other Exchange Offer Documents or
any amendment or supplement thereto by PaineWebber expressly for use in the
Registration Statement or Prospectus or such other Exchange Offer Documents or
to statements or omissions in that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification under the Trust
Indenture Act (Form T-1) of the Trustee.
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January _______, 1998
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(vi) The consolidated financial statements included and
incorporated by reference in the Registration Statement and Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the consolidated
results of their operations for the periods specified and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved, except as
indicated therein, and the supporting schedules incorporated by reference
in the Registration Statement present fairly the information required to be
stated therein.
(vii) The issuance and delivery of the New Debentures, the
execution and delivery of this Agreement and the Supplemental Indenture,
the consummation of the transactions herein and therein contemplated,
and compliance with the terms hereof and thereof do not and will not
conflict with, or result in a breach of, any of the terms or provisions of,
or constitute a default under, the Certificate of Incorporation or By-Laws,
as amended, of the Company or any of its subsidiaries or any material
indenture, mortgage, or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which any of their respective
properties are bound, or any applicable law, rule, regulation, judgment,
order or decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties; and no consent,
approval, authorization or order of any government, governmental
instrumentality or court, domestic or foreign, is required for the valid
authorization, issuance and delivery of the New Debentures, the valid
authorization, execution, delivery and performance by the Company of this
Agreement and the Supplemental Indenture or the consummation by the Company
of the transactions contemplated by this Agreement and the Supplemental
Indenture, except such as are required under the Securities Act, the
Exchange Act, the Trust Indenture Act and the securities or Blue Sky laws
of the various states.
(viii) The Supplemental Indenture has been duly authorized by the
Company and, when duly executed and delivered by the Company, will
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms and will have been duly
qualified under the Trust Indenture Act.
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January _______, 1998
Page 10
(ix) The New Debentures to be issued pursuant to the Supplemental
Indenture have been duly authorized, and when duly executed by the Company
and authenticated by the Trustee pursuant to the provisions of the
Supplemental Indenture and delivered in accordance with the terms of the
Exchange Offer, will be duly issued and will constitute valid and binding
obligations of the Company, the holders thereof will be entitled to the
benefits of the Supplemental Indenture.
(x) The New Debentures and the Supplemental Indenture conform in
all material respects to the descriptions thereof in the Prospectus.
(xi) The Company represents that the Exchange Offer Documents
have been or will be prepared and approved by, and are the sole
responsibility of, the Company, and the Company authorizes PaineWebber to
use the Exchange Offer Documents in connection with Exchange Offer
Transactions. PaineWebber agrees that it shall not use any materials in
connection with the exchange for New Debentures other than the Exchange
Offer Documents and such other materials, if any, as the Company may
approve (except for materials only for PaineWebber's own internal use that
are derived by PaineWebber only from the Exchange Offer Documents or from
filings made by the Company pursuant to the Exchange Act), and will provide
no oral information that is not contained in, or consistent with, the
Exchange Offer Documents or the Information.
(xii) The Company has no knowledge that any legal or
governmental proceeding has been instituted or threatened against the
Company that seeks to enjoin the Exchange Offer or that otherwise would
affect the making of the Exchange Offer or the consummation of the
transactions contemplated thereby.
(xiii) Except as described in or contemplated by the Prospectus,
there has not been any material adverse change in, or any adverse
development that materially affects, the business, properties, financial
condition or results of operations of the Company taken as a whole from the
dates of which information is given in the Prospectus.
(xiv) Neither the Company nor any affiliate thereof shall
publicly disclose or refer to any opinion or advice rendered by PaineWebber
to the Company without PaineWebber's prior written consent.
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January _______, 1998
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SECTION 8. Certain Events.
The Company will advise PaineWebber promptly of (i) the occurrence of any
event that might reasonably cause the Company to withdraw, rescind or terminate
the Exchange Offer, or that might reasonably permit the Company to exercise any
right not to purchase Securities tendered pursuant to the Exchange Offer or to
consummate the transactions contemplated in the Prospectus, (ii) any material
information relating to the Exchange Offer, including, without limitation, any
proposal or requirement to make, amend or supplement any filing required by the
Exchange Act, (iii) the issuance of any comment or order or the taking of any
other action by the Commission or any Other Agency concerning the Exchange
Offer, and (iv) any other information relating to the Exchange Offer or the
transactions contemplated in the Prospectus that PaineWebber may from time to
time reasonably request.
SECTION 9. Securityholder Information.
The Company will cause PaineWebber to be provided, to the extent the same
is available to the Company, with any cards or lists showing the names and
addresses of, and the number of Securities held by, the holders of Securities as
of a recent date and will endeavor to cause PaineWebber to be advised from day
to day during the period of the Exchange Offer as to any transfers of record of
the Securities known to the Company.
The Company has appointed Texas Commerce Bank National Association to serve
as Exchange Agent and Depositary in connection with the Exchange Offer and has
instructed the Exchange Agent and Depositary to advise you daily as to such
matters as you may reasonably request.
SECTION 10. Miscellaneous.
This Agreement 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
entirely in such state.
The Company, by its execution of this Agreement, hereby consents to the
jurisdiction of the courts of, and consents to be sued in any court in, the
County of New York of the State of New York or in the United States District
Court for the Southern District of New York in any action or proceeding brought
by PaineWebber or any other Indemnified Person under this Agreement. Service of
process on the Company may be effected by mailing process, by registered mail,
return receipt requested, to the Company at the address set forth above, with a
copy to [Xxxxx X. Xxxxxxxx].
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January _______, 1998
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The Company and PaineWebber each hereby irrevocably waive any right they
may have to a trial by jury in respect of any claim based upon or arising out of
this Agreement or the transactions contemplated hereby.
The agreements contained in Sections 3, 5 and 6 and the representations and
warranties contained in Sections 2 and 7 shall remain operative and in full
force regardless of (i) any failure to commence, or the withdrawal, termination
or consummation of, the Exchange Offer, (ii) any investigation made by or on
behalf of any Indemnified Person, (iii) any withdrawal by PaineWebber as dealer
manager for the Exchange Offer pursuant to Section 2 or otherwise or (iv) any
termination of this Agreement.
Simultaneously with the execution and delivery of this Agreement, the
Company shall deliver to you the opinion of Xxxxx & Xxxxx, L.L.P., counsel for
the Company, in the form attached hereto as Exhibit B.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto, and the respective successors and permitted assigns of each, and
shall inure to the benefit of the parties hereto and the other Indemnified
Persons, and the respective successors and permitted assigns of the foregoing.
If any provision of this Agreement shall be determined to be invalid or
unenforceable in any respect, such determination shall not affect such provision
in any other respect or any other provision of this Agreement, which shall
remain in full force and effect. This Agreement may not be amended or otherwise
modified or waived except by an instrument in writing signed by both PaineWebber
and the Acquiring Company.
This Agreement may be executed in counterparts, each of which shall be
deemed an original but all of which together shall be considered a single
instrument.
The Prior Agreement dated August 1, 1997, and the Amendment between
PaineWebber and the Company shall remain operative and in full force. Except as
set forth in the preceding sentence, this Agreement sets forth our entire
agreement with you with respect to the subject matter hereof, and supersedes any
prior agreements or understandings (whether written or oral) between us with
respect thereto.
PaineWebber Incorporated
January _______, 1998
Page 13
Please confirm that the foregoing is in accordance with your understanding by
signing and returning to us the enclosed copy of this letter.
Very truly yours,
PENNZOIL COMPANY
By:
----------------------------
Name:
Title:
Accepted and Agreed to as of
the date first written above:
PAINEWEBBER INCORPORATED
By:
-----------------------------
Name:
Title:
