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EXHIBIT 1.1
Draft of October 16, 1996
NOBLE AFFILIATES, INC.
4 1/4% Convertible Subordinated Notes due November 1, 2003
STANDBY AGREEMENT
October 17, 1996
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Noble Affiliates, Inc., a Delaware corporation (the "Company"),
proposes to call for redemption on November 1, 1996 (the "Redemption Date") all
of its outstanding 4 1/4% Convertible Subordinated Notes due November 1, 2003
(the "Notes") at a redemption price of $1,029.75 for each $1,000 principal
amount thereof (the "Redemption Price"). The Notes are convertible into shares
of the Company's Common Stock, par value $3.33 1/3 per share (the "Common
Stock"). The right to convert the Notes into Common Stock will terminate at
5:00 p.m., New York City time, on the Redemption Date. The Company desires to
make arrangements with you (the "Purchaser") pursuant to which the Purchaser
will purchase authorized but unissued shares of Common Stock which would have
been delivered upon conversion of those Notes which are either (i) duly
surrendered for redemption or (ii) not duly surrendered for conversion or
redemption (the "Nonresponse Redemption Shares") prior to 5:00 p.m., New York
City time, on the Redemption Date (collectively, the "Shares"), at a purchase
price equal to $37.74 per share. The shares of Common Stock purchased by the
Purchaser hereunder, including the Failed Shares (as hereinafter defined), are
referred to herein as the "Purchased Shares". The Company confirms its
agreement with you as follows.
SECTION 1. Representations and Warranties. The Company
represents and warrants to, and agrees with, you that:
(a) The Company has prepared and filed, or will file promptly
after the execution hereof, with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 for the
registration under the Securities Act of 1933, as amended (the "Act"),
of the Shares. Such registration statement is in the form heretofore
(including all documents incorporated by reference in the prospectus
contained therein) delivered to you or your counsel, and no other
document with respect to such registration statement or documents
incorporated by reference has heretofore been filed or transmitted for
filing with the Commission. The registration statement, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in the registration statement at the time the
registration statement becomes effective, each as amended at the time
the registration statement becomes effective, and the prospectus
constituting a part of the registration statement
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on file with the Commission at the time the registration statement
becomes effective, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, are hereinafter
called the "Registration Statement" and the "Prospectus", respectively,
except that if any prospectus shall be filed with the Commission and
provided to the Purchaser by the Company for use in connection with the
offering of the Common Stock by the Purchaser which differs from the
Prospectus on file with the Commission at the time the Registration
Statement becomes effective (whether or not such Prospectus is required
to be filed by the Company pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act), the term "Prospectus"
shall refer to such prospectus from and after the time it is first
provided to the Purchaser for such use, and if the Company files any
documents pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), after the time the Registration Statement becomes
effective and prior to the termination of the offering of the Common
Stock by the Purchaser, which documents are deemed to be incorporated by
reference into the Prospectus, the terms "Registration Statement" and
"Prospectus" shall refer to said Registration Statement and Prospectus
as supplemented by the documents so filed from and after the time said
documents are filed with the Commission. Any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement or Prospectus shall be deemed to refer to and
include the filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein.
(b) The Registration Statement and any amendment thereto, in
each case at the time it becomes effective under the Act, will conform
in all material respects with the requirements of the Act and the rules
and regulations of the Commission thereunder and will not, as of such
effective date, 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 and any
amendment or supplement thereto, at the time the Registration Statement
becomes effective (unless the term "Prospectus" refers to a prospectus
which has been provided to the Purchaser by the Company for use in
connection with the offering of Common Stock by the Purchaser which
differs from the Prospectus on file with the Commission at the time the
Registration Statement becomes effective, in which case at the time it
is first provided to the Purchaser for such use) and at all times
through termination of the offering of the Common Stock by the
Purchaser, will conform in all material respects with the requirements
of the Act and the rules and regulations of the Commission thereunder
and will not, as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto and as of the time any prospectus
which differs from the Prospectus on file with the Commission at the
time the Registration Statement becomes effective is first provided to
the Purchaser for use, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by you expressly for use in the
Prospectus. There are no contracts or documents of the Company or any
of its consolidated subsidiaries which
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would be required to be filed as exhibits to the Registration Statement
by the Act or by the rules and regulations of the Commission thereunder
which have not been filed as exhibits to the Registration Statement.
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be (or, if any amendment with respect to any such document was
filed, when such amendment was filed), conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder,
and none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and, when
considered with the other information in the Prospectus, at the time the
Registration Statement becomes effective, will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents filed with the Commission and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by you expressly for use in the
Prospectus.
(d) The financial statements of the Company and its
subsidiaries, including the notes thereto, and the supporting schedules
included or incorporated by reference in the Registration Statement and
Prospectus fairly present the financial condition of the Company and its
subsidiaries as of the dates indicated and the results of operations and
changes in financial position for the periods therein specified, and
have been prepared, in conformity with generally accepted accounting
principles consistently applied throughout the periods involved (except
as otherwise stated therein). The pro forma financial information
included or incorporated by reference in the Registration Statement and
Prospectus has been prepared in accordance with the rules and
regulations of the Commission with respect to pro forma financial
statements, fairly presents the information shown therein and has been
properly compiled on the pro forma basis described therein; the
assumptions used in the preparation of such pro forma financial
information are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and events referred to
therein.
(e) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus and prior to the
Time of Mailing (as hereinafter defined), any loss or interference with
its business from fire, explosion, flood or other calamity, or from
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any labor dispute or court or governmental action, order or decree, that
is material to the Company and its subsidiaries taken as a whole (taking
into account any insurance proceeds that may have been received),
otherwise than as set forth or contemplated in the Prospectus (or
indicated in the financial statements included or incorporated by
reference therein); and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has been no dividend or distribution of any kind declared, paid or
made by the Company on any of its Common Stock other than regular
quarterly dividends.
(f) The Company and each of its subsidiaries has been duly
incorporated and is an existing corporation in good standing under the
laws of its jurisdiction of incorporation, has full power and authority
(corporate and other) to conduct its business as described in the
Registration Statement and Prospectus and is duly qualified to do
business in each jurisdiction in which its ownership of real property or
interests therein or the conduct of its business requires such
qualification except where the failure to be so qualified can be
remedied without material cost to the Company or, considering all such
cases in the aggregate, does not involve a material risk to the
business, properties, financial position or results of operations of the
Company and its subsidiaries taken as a whole; and all of the
outstanding shares of capital stock of each such subsidiary have been
duly authorized and validly issued, are fully paid and non-assessable
and (except for any directors' qualifying shares or as otherwise stated
in the Registration Statement) are owned beneficially by the Company
subject to no security interest or other encumbrance or claim affecting
transferability or voting.
(g) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable and conform to the description thereof contained
in the Prospectus; all of the shares of Common Stock to be issued by the
Company pursuant to this Agreement have been duly authorized and, when
issued and delivered as contemplated hereby, will be validly issued,
fully paid and non-assessable and will conform to the description of the
Common Stock contained in the Prospectus; and the shareholders of the
Company have no preemptive rights with respect to the Common Stock.
(h) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company nor any
of its subsidiaries has incurred any liabilities or obligations, direct
or contingent, or entered into any transactions, not in the ordinary
course of business, that are material to the Company and its
subsidiaries taken as a whole, and there has not been any material
change, or any development which could reasonably be expected to involve
a prospective material change, on a consolidated basis, in the capital
stock, short-term debt or long-term debt of the Company and its
subsidiaries, or any material adverse change, or any development which
could reasonably be expected to involve a prospective material adverse
change, in the condition (financial or other), business, properties, net
worth or results of operations of the Company and its subsidiaries taken
as a whole.
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(i) Except as set forth in the Prospectus, there is not
pending or, to the knowledge of the Company, threatened any action,
suit, claim, investigation or proceeding to which the Company or any of
its subsidiaries is a party, before or by any court or governmental
agency or body, that could reasonably be expected to (i) result in any
material adverse change in the condition (financial or other), business,
net worth or results of operations of the Company and its subsidiaries
taken as a whole, or (ii) materially and adversely affect the
consolidated properties or assets thereof.
(j) There are no contracts or documents of the Company or any
of its subsidiaries that are required to be filed as exhibits to the
Registration Statement or to any of the documents incorporated by
reference therein by the Act or the Exchange Act or by the rules and
regulations of the Commission thereunder that have not been so filed.
(k) The performance of this Agreement and the consummation of
the transactions herein contemplated, including, without limitation, the
call of the Notes for redemption, the redemption of the Notes, and the
issue and sale of the shares of Common Stock by the Company as
contemplated by this Agreement, will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under,
any statute, any agreement or instrument to which the Company is a party
or by which it is bound or to which any of the property of the Company
is subject, the Company's charter or by-laws, or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; no consent,
approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the call of the Notes for
redemption, the redemption of the Notes, the issue and sale of shares of
Common Stock by the Company as contemplated by this Agreement or the
consummation by the Company of the transactions contemplated by this
Agreement, except such as may be required under the Act or state
securities laws; the Company has full power and authority to authorize,
issue and sell the shares of Common Stock as contemplated by this
Agreement; and all taxes, if any, required to be paid by the Company
with respect to the redemption of the Notes and the issuance of shares
of Common Stock upon conversion of the Notes or otherwise pursuant to
this Agreement, have been or will be paid by the Company.
(l) Each of the Company and its subsidiaries owns title
(consistent with customary practice in the oil and gas industry for the
type and location of the relevant properties and assets) to its material
oil and gas properties, free and clear of any encumbrances, except for
liens for taxes or charges of mechanics or materialmen not yet due or
which are being challenged in good faith, encumbrances under gas sales
contracts, operating agreements, unitization and pooling agreements and
other similar agreements as are customarily found in connection with
comparable operations and title defects that are, singly and in the
aggregate, not material in amount and do not interfere in any material
respect with its use or enjoyment of such material oil and gas
properties.
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(m) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
customary for companies engaged in similar businesses in similar
industries.
(n) Except as described in the Prospectus, there has been no
storage, disposal, generation, manufacture, spill, discharge,
refinement, transportation, handling or treatment of toxic wastes,
hazardous wastes or hazardous substances by the Company or any of its
subsidiaries (or to the knowledge of the Company, any of its
predecessors in interest) at, upon or from any of the property now or
previously owned or leased or under contract for purchase by the Company
or any of its subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which
would require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation
or remedial action which would not reasonably be expected to result in,
singularly or in the aggregate with all such violations and remedial
actions, any material adverse effect on the consolidated financial
position, shareholders' equity, results of operations or business of the
Company and its subsidiaries that has not heretofore been reflected in
the Company's consolidated financial statements; and the terms
"hazardous wastes," "toxic wastes" and "hazardous substances" shall have
the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection.
(o) At the close of business on October 16, 1996, $230,000,000
aggregate principal amount of the Notes remained outstanding; the Notes
are convertible in accordance with the terms of the Indenture between
the Company and United States Trust Company of New York (the "Trustee")
dated as of October 14, 1993 (the "Indenture"), until 5:00 p.m., New
York City time, on the Redemption Date, into Common Stock at a
conversion price of $36.65 of principal amount of Notes per share of
Common Stock; and from and after the time the Registration Statement
becomes effective and until 5:00 p.m., New York City time, on the
Redemption Date, the Company will take no action which would result in
any change in the conversion price.
(p) No holder of outstanding shares of Common Stock has any
rights to the registration of shares of Common Stock or other securities
of the Company which would or could require such securities to be
included in the Registration Statement.
(q) The Company has neither paid nor given, nor will pay or
give, directly or indirectly, any commission or other remuneration for
soliciting the conversion of any Notes into Common Stock.
(r) The Company has instructed the Trustee to cooperate with
you in order to facilitate the conversion of Notes acquired by you until
5:00 p.m., New York City time, on the Redemption Date.
(s) The Shares have been listed, subject to notice of
issuance, on the New York Stock Exchange.
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Any certificate signed by any officer of the Company and
delivered to you or to your counsel shall be deemed a representation and
warranty by the Company to you as to the matters covered thereby.
SECTION 2. Purchase, Sale and Delivery of Shares. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company agrees to issue and
sell to you, and you agree to purchase from the Company, all of the Purchased
Shares at a purchase price of $37.74 per share (the "Purchase Price").
Promptly after the close of business on the Redemption Date, the
Company shall notify the Purchaser in writing after conferring with the Trustee
of the principal amount of Notes that have been converted.
The closing (the "Closing") of the purchase and sale of the
Shares shall occur at 10:00 A.M. (New York City time) on November 6, 1996, or
at such other time not later than seven full business days thereafter as the
Purchaser and the Company determine (the "Closing Date"), at the offices of
Xxxxxxxx & Xxxxxx, P.C., 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000.
Payment for the Shares shall be by wire transfer in immediately available
funds. The Company will deliver to you certificates evidencing the Purchased
Shares (in definitive form and registered in such names and in such
denominations as you shall request by written notice to the Company). A
"business day" shall be a day on which the Commission's office in Washington,
D.C., and banks and securities exchanges in New York, New York, are open for
business. Delivery of the certificates evidencing the Purchased Shares is to
be made at your office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or as you
may otherwise designate in writing.
For purposes of expediting the checking and packaging of any
certificates to be delivered at the Closing, the Company shall make
certificates available for inspection at the office of the Purchaser, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, xx least 24 hours prior to the Closing.
As compensation to you for your commitment hereunder the Company
will pay to you, by wire transfer in immediately available funds, (a) on the
date hereof, $2,368,425.00 as a standby fee and (b) at the Closing, or you may
deduct the same from the above payment for the Shares, an additional amount per
Share purchased (the "Take-up Amount") as follows: as to the number of Shares
purchased up to 627,557 Shares, 2.75% of the Purchase Price; as to any
additional Shares purchased up to 1,882,673 Shares, 3.75% of the Purchase
Price; as to any additional Shares purchased up to 3,137,789 Shares, 4.75% of
the Purchase Price; and as to any additional Shares purchased, 6.50% of the
Purchase Price; provided, however, that for the purpose of calculating the
Take-Up Amount, the number of Nonresponse Redemption Shares shall be excluded
from the number of Shares so purchased.
With respect to any Nonresponse Redemption Shares acquired by you
pursuant to this Agreement, you agree to share any profit on resale of such
shares with the Company. For purposes of this Agreement, the "Adjustment
Amount" equals the aggregate sales price of the Nonresponse Redemption Shares,
less the aggregate purchase price paid by
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the Purchaser in respect of such shares. Such Adjustment Amount is to be
computed after deduction of selling concessions and commissions, transfer taxes
and your cost of carrying such position (which, for purposes of this Agreement,
shall be deemed to accrue at a rate of 4% per annum). Upon the completion of
such sales, you shall furnish to the Company a statement setting forth the
sales price or prices for such shares and the applicable selling concessions
and commissions, transfer taxes and cost of carrying. Nothing contained herein
shall limit your right, in your discretion, to determine the price or prices at
which, and the time or times when, any such shares shall be sold, whether or
not prior to the Redemption Date and whether or not for long or short account.
For the purpose of this paragraph, any Nonresponse Redemption Shares not sold
by you or for your account prior to the close of business on the tenth day
after the Redemption Date shall be deemed to have been sold on such tenth day
for an amount equal to the reported last sale price regular way of the Common
Stock on the New York Stock Exchange Composite Tape on such day. The
Adjustment Amount shall be allocated 50% to the Purchaser and 50% to the
Company. Any Adjustment Amount payable by the Purchaser to the Company shall
be paid promptly to the Company.
SECTION 3. Covenants. The Company covenants and agrees with
you:
(a) To make no further amendment or any supplement to the
Registration Statement or Prospectus (other than a document required to
be filed under the Exchange Act that upon filing is deemed to be
incorporated by reference therein) prior to the termination of the
offering of Common Stock by the Purchaser which shall be disapproved by
you promptly after reasonable notice thereof (which disapproval shall
not be unreasonable); to advise you promptly of any such amendment or
supplement and to furnish you with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of the
Shares, and during such same period to advise you, promptly after it
receives notice thereof, of the time when the Registration Statement or
any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed with the Commission, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
prospectus relating to the Shares, of the suspension of the
qualification of the Shares or any shares of Common Stock for offering
or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the events of the
issuance of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Shares or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal.
(b) Promptly from time to time to use its best efforts to
qualify the Shares for offering and sale under the securities laws of
such jurisdictions as you may reasonably request and to comply with such
laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
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Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction.
(c) To furnish you, without charge, two signed copies of the
Registration Statement as originally filed and of each amendment
thereto, including all exhibits thereto and documents incorporated by
reference therein, and to furnish you, without charge, such number of
conformed copies of the Registration Statement as originally filed and
each amendment thereto, excluding exhibits thereto, and such number of
the documents incorporated by reference therein, as you may reasonably
request.
(d) To furnish you, without charge, copies of the Prospectus
in such quantities as you may from time to time reasonably request, and,
if the delivery of a prospectus is required at any time in connection
with the offering or sale of the Shares and if at such time any event
shall have occurred as a result of which the Prospectus would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act or the Exchange Act,
to notify you and upon your request to file such document and to prepare
and furnish without charge to you as many copies as you may from time to
time reasonably request of an amended prospectus or a supplement to the
prospectus which will correct such statement or omission or effect such
compliance.
(e) To make generally available to its security-holders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) of the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158), it being understood
that the Company intends to satisfy this requirement by delivery of its
annual reports on Form 10-K and its quarterly reports on Form 10-Q.
(f) During the period beginning from the date hereof and
continuing through the Redemption Date, and, if the Purchaser purchases
any Purchased Shares, further continuing through the date 90 days after
the Redemption Date, not to offer, sell, contract to sell or otherwise
dispose of any shares of Common Stock, or any other security convertible
into or exchangeable for shares of Common Stock (the "Restricted
Securities"), except for any Restricted Security issued by the Company
pursuant to its employee benefit plans or shares of Common Stock issued
or distributed in connection with the conversion of the Notes or any
other security of the Company outstanding on the date hereof, without
your prior written consent (such consent not to be unreasonably
withheld).
(g) On the date the Registration Statement becomes effective,
to mail or cause to be mailed to holders of Notes a Prospectus and a
notice of redemption (the
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"Notice of Redemption") of all the Notes on the Redemption Date in
accordance with the terms of the Indenture, the time of the first such
mailing being called herein the "Time of Mailing"; and the Company will
cause notice of redemption to be given by press release at such times as
you and the Company may mutually agree.
(h) To advise you daily or direct the Trustee to advise you
daily of the respective principal amount of Notes surrendered for
conversion into Common Stock and surrendered for redemption on the
preceding day.
(i) To supplement the Prospectus, or file a post-effective
amendment to the Registration Statement, after the Redemption Date to
set forth the results of the call for redemption and other information
that may be required to comply with the rules of the Commission, if
applicable, and, if the Purchaser purchases any Shares hereunder, not
later than 15 days after the Redemption Date, to file a post-effective
amendment to the Registration Statement or to take such other steps as
may be necessary to remove from registration all shares of Common Stock
which have not been issued to the Purchaser pursuant to Section 2
hereof.
SECTION 4. Payment of Expenses. The Company covenants and
agrees with you that the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants and all other expenses in connection with the preparation, printing
and filing of the Registration Statement and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof; (ii) the
costs of any filing with the National Association of Securities Dealers, Inc.,
if required; (iii) all costs and expenses, including printing expenses, in
connection with the preparation and mailing of the Notice of Redemption and
related documents and the publication of any advertisement relating to the
redemption of the Notes; (iv) all costs and expenses in connection with the
issuance and delivery of shares of Common Stock upon conversion of the Notes,
including transfer taxes, if any, and the fees and expenses of the Trustee, and
as otherwise contemplated by this Agreement; (v) the cost of printing or
producing this Agreement, any Blue Sky Memorandum or survey and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (vi) all expenses in connection with the qualification of the shares
for offering and sale under state securities laws as provided in Section 3(b)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Purchaser in connection with such qualification and in
connection with any Blue Sky Memorandum or survey; (vii) the cost of preparing
the Shares; (viii) all reasonable out-of-pocket expenses of the Purchaser
(other than any selling concessions and commissions) and fees, disbursements
and expenses of counsel for the Purchaser in connection with this Agreement and
the transactions contemplated hereby; and (ix) all other costs and expenses
incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section.
You agree that in the event the Trustee should require from the
Company any deposit of funds pursuant to Section 1106 of the Indenture, you
shall advance such funds to the Company and deposit such funds with the Trustee
on behalf of the Company (such advance and deposit a "Trustee Deposit"). The
Company agrees to repay or to cause the Trustee to repay to you any such
Trustee Deposit as soon as the Trustee no longer requires
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such funds to be deposited with it pursuant to Section 1106 of the Indenture.
The Company agrees further to reimburse you on the Closing Date in an amount
equal to your cost of funds on any such Trustee Deposit from the date of such
deposit through the Closing Date.
SECTION 5. Conditions of Purchaser's Obligations. Your
obligations hereunder shall be subject, in your discretion, to the condition
that all representations and warranties of the Company herein are, at and as of
the date hereof and the date of the Closing (as if made on and as of such
dates), true and correct, the condition that the Company shall have performed
all of its obligations hereunder theretofore to be performed in all material
respects, and the following additional conditions, it being understood,
however, that the representation and warranty in Section 1(e) and the condition
in Section 5(g) shall extend only to the Time of Mailing:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M., New York City time, on the date hereof.
(b) On the date the Registration Statement becomes effective
(prior to the mailing of the Notice of Redemption) and on the Closing
Date you shall have received:
(1) The written opinion of Xxxxxxxx & Xxxxxx, P.C., counsel
for the Company, dated the date the Registration Statement becomes
effective and the Closing Date, respectively, substantially to the
effect that:
(i) The Company and each of Noble Gas Marketing, Inc.,
Noble Trading, Inc., Samedan Oil Corporation and Energy
Development Corporation ("EDC") (each, a Material Subsidiary) has
been duly incorporated and is an existing corporation in good
standing under the laws of its jurisdiction of incorporation and
has full corporate power and authority to conduct its business as
described in the Registration Statement and Prospectus; and all
of the outstanding shares of capital stock of each Material
Subsidiary have been duly authorized and validly issued, are
fully paid and non-assessable and (except as otherwise stated in
the Registration Statement) are owned beneficially by the Company
subject to no security interest or other encumbrance or claim
affecting transferability or voting;
(ii) The Notes are convertible into Common Stock of the
Company in accordance with the terms of the Indenture; and the
shares of such Common Stock initially issuable upon conversion of
the Notes have been duly authorized and reserved for issuance
upon such conversion, and, when so issued and delivered against
payment therefor in accordance with the Indenture, will be
validly issued, fully paid and non-assessable; all of the
outstanding shares of Common Stock of the Company have been duly
authorized and validly issued, are fully paid, non-assessable and
not subject to any preemptive or similar right; the authorized
and outstanding capital stock of the Company is as set forth in
the Registration Statement and the Prospectus under the heading
"Capitalization"; the description of the Common
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Stock contained in the Prospectus under the heading "Description
of Capital Stock" conforms to the terms thereof contained in the
Company's certificate of incorporation; and the shareholders of
the Company have no preemptive rights with respect to the Shares
under the Company's certificate of incorporation or bylaws or
applicable state law;
(iii) The Registration Statement has become effective
under the Act; and to the best knowledge of such counsel no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission;
(iv) Each part of the Registration Statement, when such
part became effective, and the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the
Commission, complied as to form in all material respects with the
requirements of the Act and the rules and regulations of the
Commission thereunder; and the documents incorporated by
reference in the Registration Statement or Prospectus or any
amendment or supplement thereto, when they became effective under
the Act or were filed with the Commission under the Exchange Act,
as the case may be, complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; it being understood that such counsel need express no
opinion as to the financial statements, schedules and other
financial data included in any of the documents mentioned in this
clause;
(v) The description of the Credit Agreement dated as of
July 31, 1996 among the Company, as borrower, certain commercial
lending institutions which are or may become a party thereto, as
lenders, and Union Bank of Switzerland, as agent for the lenders,
contained under "Acquisition or Disposition of Assets" in the
Company's Form 8-K (Date of Event: July 31, 1996), as amended, is
accurate in all material respects; and such counsel do not know
of any legal or governmental proceedings required to be described
in the Prospectus that are not described as required, or of any
contracts or documents of a character required to be described in
the Registration Statement or Prospectus (or required to be filed
under the Exchange Act if upon such filing they would be
incorporated by reference therein) or to be filed as exhibits to
the Registration Statement that are not described or filed as
required;
(vi) This Agreement has been duly authorized, executed
and delivered by the Company; the performance of this Agreement
and the consummation of the transactions herein contemplated by
the Company will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any material agreement or instrument known to such
counsel to which the Company is a party or by which it is bound
or to which any of the property of the Company is subject, the
Company's certificate of incorporation or by-laws, or any order,
rule or regulation known
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to such counsel to be applicable to the Company or any subsidiary
thereof of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization or order of, or filing with, any
court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by
this Agreement in connection with the issuance or sale of the
Shares by the Company, except such as have been obtained under
the Act and such as may be required under state securities laws
in connection with the purchase and distribution of the Shares by
the Purchaser;
(vii) The statements in the Prospectus under the caption
"Description of Capital Stock", insofar as such statements
constitute summaries of the documents and legal matters referred
to therein, fairly summarize such documents and matters; and
(viii) The redemption of all of the outstanding Notes on
the Redemption Date has been duly authorized; and the only
remaining action required by the terms of the Notes or the
Indenture to call the Notes for redemption on the Redemption Date
is the giving of the notice of redemption by mail in accordance
with the provisions of the Indenture.
The foregoing opinions may be limited to the General
Corporation Law of the State of Delaware, the laws of the State
of Texas, the New Jersey Business Corporation Act, the laws of
the State of New York and applicable federal law. In rendering
the foregoing opinions, counsel may rely, to the extent they deem
such reliance proper, on the opinions (in form and substance
reasonably satisfactory to the Purchaser) of other counsel
reasonably acceptable to the Purchaser as to matters governed by
the laws of jurisdictions other than the United States, the State
of Texas, and the General Corporation Law of the State of
Delaware, and as to matters of fact, upon certificates of
officers of the Company and of government officials. Copies of
all such opinions and certificates shall be furnished to counsel
to the Purchaser on the date the Registration Statement becomes
effective and on the Closing Date.
Concurrently with the delivery of its opinion, Xxxxxxxx &
Knight, P.C., shall advise the Purchaser in writing that, in the
course of its representation of the Company in connection with
the preparation of the Registration Statement and Prospectus,
nothing has come to its attention that gives it any reason to
believe either that any part of the Registration Statement, when
such part became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus and any amendment or supplement
thereto, as of its date or (if applicable) as of the Closing
Date, included an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
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(2) The written opinion or opinions of Xxxxxxxx & Xxxxxxxx,
counsel for the Purchaser, dated the date the Registration Statement
becomes effective and the Closing Date, respectively, with respect to
the incorporation of the Company, the validity of the Shares, the
Registration Statement, the Prospectus and other related matters as you
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters.
(c) No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by
the Commission, nor shall there have been any injunction, restraining
order or other order of a court or any governmental agency which
prohibits or restrains the Purchaser from converting the Notes into
Common Stock.
(d) There shall not have been any change after the date of this
Agreement in the charter or by-laws of the Company adversely affecting
the rights of the holders of the Common Stock.
(e) On the effective date of the Registration Statement (prior
to the mailing of the Notice of Redemption), and on the Closing Date,
respectively, you shall have received a letter from Xxxxxx Xxxxxxxx LLP,
dated the date of delivery thereof, to the effect that (i) they are
independent certified public accountants with respect to the Company
within the meaning of the Act and the rules and regulations of the
Commission thereunder; (ii) in their opinion, the financial statements
audited by them included or incorporated by reference in the
Registration Statement and Prospectus comply as to form in all material
respects with the applicable requirements of the Act and the Exchange
Act and the related published rules and regulations thereunder; (iii)
nothing came to their attention as a result of performing certain
specified procedures that caused them to believe that the unaudited pro
forma consolidated condensed financial statements included or
incorporated by reference in the Registration Statement do not comply as
to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of those statements; and (iv) as to such other matters
relating to such financial statements and financial information as you
may reasonably request and in form and substance satisfactory to you.
(f) On the effective date of the Registration Statement (prior
to the mailing of the Notice of Redemption), and on the Closing Date,
respectively, you shall have received a letter from Deloitte & Touche
LLP, dated the date of delivery thereof, to the effect that (i) they are
independent certified public accountants with respect to each of EDC and
the Company within the meaning of the Act and the applicable published
rules and regulations thereunder; and (ii) in their opinion, the
financial statements in respect of EDC audited by them and incorporated
by reference in the Registration Statement comply as to form in all
material respects with the applicable requirements of the Act or the
Exchange Act, as applicable, and the published rules and regulations
thereunder.
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(g) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus and prior to the
Time of Mailing any loss or interference with its business from fire,
explosion, flood or other calamity, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus (or indicated in the financial statements
included or incorporated by reference therein), and (ii) since the
respective dates as of which information is given in the Prospectus and
prior to the Time of Mailing there shall not have been any change on a
consolidated basis in the capital stock, short-term debt or long-term
debt of the Company and its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), in your judgment, taking into
account your prior knowledge of the Company and the industry in which
the Company operates, so materially and adversely affects the business,
financial condition or results of operations of the Company and its
subsidiaries (taken as a whole) as to make it impracticable to complete
the public offering or the delivery of the Shares on the terms and in
the manner contemplated in the Prospectus.
(h) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's shares of Common
Stock on the New York Stock Exchange, the effect of which in your
reasonable judgment makes it impracticable to complete the public
offering or the delivery of the Shares on the terms and in the manner
contemplated by the Prospectus; (iii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities; (iv) a material adverse change in the condition,
financial or otherwise, earnings, business or prospects of the Company
and its subsidiaries considered as a whole, whether or not arising in
the ordinary course of business; (v) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war; or (vi) a substantial national or
international calamity or other occurrence of a material adverse change
in general economic, political or financial conditions in the United
States, or internationally having a material impact on such conditions
in the United States, if the effect of any such event specified in
clause (iv), (v) or (vi) in your judgment makes it impracticable to
complete the public offering or the delivery of the Shares on the terms
and in the manner contemplated by the Prospectus.
(i) On the effective date of the Registration Statement (prior
to the mailing of the Notice of Redemption) and also on the Closing
Date, the Company shall have furnished or caused to be furnished to you
a certificate or certificates, dated the effective date of the
Registration Statement and the Closing Date, respectively, of officers
of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of the
date of such certificate or certificates, as to the performance in all
material respects by the Company of all of its
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obligations hereunder to be performed at or prior to the time such
certificate or certificates shall be furnished to you, as to the matters
set forth in subsections (a), (c) and (g) of this Section and as to such
other matters as you may reasonably request, it being understood,
however, that the representation and warranty in Section 1(e) and the
condition in Section 5(g) shall extend only to the Time of Mailing.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this
Agreement and all your obligations hereunder may be canceled by you by
notifying the Company of such cancellation in writing or by telegram at any
time at or prior to the Redemption Date, and any such cancellation shall be
without liability of any party to any other party except as provided in Section
4, Section 7 and Section 9(c). Opinions and letters received without objection
by the Purchaser on the effective date of the Registration Statement or on the
Closing Date, as applicable, shall thereafter be deemed to have fulfilled that
portion of this Agreement requiring the delivery of such opinions or letters
when and as required by this Agreement.
SECTION 6. Additional Purchases. Until 5:00 p.m., New York City
time, on the Redemption Date, you may (but shall be under no obligation to)
purchase Notes in such amounts and at such prices as you may deem advisable.
The Common Stock acquired by you on conversion of the Notes purchased by you
pursuant to this Section may be sold at any time or from time to time by you.
It is also understood that, for the purpose of stabilizing the price of the
Common Stock or otherwise, you may make purchases and sales of Common Stock or
Notes, in the open market or otherwise, for long or short account, on such
terms as you deem advisable, and may over-allot in arranging sales, all subject
to applicable provisions of the Exchange Act and the rules and regulations of
the Commission thereunder.
Subject to the conditions set forth in Section 5 hereof, in the
event that Notes to be delivered to the Trustee to be converted into shares of
Common Stock pursuant to the guaranteed delivery procedures described in the
Notice of Redemption are not so delivered by the close of business on the tenth
business day following the Redemption Date, you agree to purchase on the next
succeeding business day shares of Common Stock (the "Failed Shares") equal in
number to the number of shares of Common Stock which would have been delivered
upon conversion of such Notes at a price per share equal to the Purchase Price.
At 9:30 a.m., New York City time, on the eleventh business day following the
Redemption Date, you agree to pay to the Company, by wire transfer in
immediately available funds, the aggregate Purchase Price for the Failed
Shares, and the Company agrees simultaneously to deliver to you certificates
evidencing the Failed Shares (in definitive form and registered in such names
and in such denominations as you shall request by written notice to the
Company). The Company shall pay the Purchaser an amount per Failed Share by
wire transfer in immediately available funds equal to the highest Take-up
Amount per Purchased Share paid by the Company to the Purchaser at the Closing.
Delivery of the certificates evidencing the Failed Shares shall be made in
accordance with Section 2 hereof.
SECTION 7. Indemnification. (a) The Company will indemnify you
and hold you harmless against any losses, claims, damages or liabilities to
which you may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
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statement of a material fact contained in the Registration Statement, the
Prospectus and any other prospectus relating to the Shares, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse you
for any legal or other expenses reasonably incurred by you in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, the Prospectus and any
other prospectus relating to the Shares, or any such amendment or supplement,
in reliance upon and in conformity with written information furnished to the
Company by you expressly for use in the Prospectus.
(b) You will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Prospectus and any other prospectus relating to
the Shares, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in the Registration Statement, the Prospectus and any other prospectus
relating to the Shares, or any such amendment or supplement, in reliance upon
and in conformity with written information furnished to the Company by you
expressly for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, to
assume the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect
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of any losses, claims, damages or liabilities (or actions in respect thereof)
as contemplated therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and you on the other from the offering of the Shares to
which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and you on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and you on the other shall be deemed to be in the same
proportion as the aggregate price of the Shares received by the Company bears
to the aggregate Take-up Amount for such Shares received by you pursuant to
this Agreement. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or you on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and you agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), you shall not be
required to contribute any amount in excess of the amount by which the total
price of the Shares purchased by you from the Company pursuant to Section 2 of
this Agreement and distributed to the public exceeds the amount of any damages
which you have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company under this Section 7 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls you within the meaning of the Act; and your obligations under this
Section 7 shall be in addition to any liability which you may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
SECTION 8. Indemnities, Agreements, Representations and
Warranties to Survive. The respective indemnities, agreements,
representations, warranties and other statements of the Company and you, as set
forth in this Agreement, or as set forth by the
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Company in certificates of officers of the Company furnished to you pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of you or any person who controls you, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of
and payment for the Shares.
SECTION 9. Effectiveness and Termination of Agreement. (a)
This Agreement shall become effective only upon receipt by you and the Company
of notification of the effectiveness of the Registration Statement, unless
prior to such time the Company shall have given notice to you or you shall have
given notice to the Company that this Agreement shall not become effective.
Any such notice shall be effective only upon receipt.
(b) Prior to the time the Company commences the mailing to
holders of Notes of notices that the Notes is to be redeemed on the Redemption
Date, this Agreement may be terminated by the Company by notice to you, or by
you by notice to the Company. Any such notice shall be effective only upon
receipt.
(c) If this Agreement shall be terminated pursuant to this
Section or Section 5, the Company shall not be under any liability to you
except as provided in Section 2, Section 4, Section 7 and Section 8 hereof and
except that the Company will reimburse you for all reasonable out-of-pocket
expenses incurred by you, including reasonable fees, disbursements and expenses
of counsel, in making preparations for the purchase, sale and delivery of the
Shares.
SECTION 10. Notices. Except as herein otherwise provided, all
statements, requests, notices and agreements hereunder shall be in writing, and
if to you shall be delivered or sent by mail, telex or facsimile transmission
to you at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxxxxx; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to it at 000 Xxxx Xxxxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx Xxxxxx, President and Chief Executive Officer. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
SECTION 11. Parties. This Agreement shall be binding upon, and
inure solely to the benefit of, you, the Company and, to the extent provided
in Section 7 and Section 8 hereof, the officers and directors of the Company
and each person who controls the Company or you, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser
of any of the Shares from you shall be deemed a successor or assign by reason
merely of such purchase.
SECTION 12. Time shall be of the essence of this Agreement.
SECTION 13. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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SECTION 14. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us three counterparts hereof, and, upon the acceptance
hereof by you, this letter and such acceptance hereof shall constitute a
binding agreement between you and the Company.
Very truly yours,
NOBLE AFFILIATES, INC.
By:
------------------------------
Name:
Title:
Accepted as of the date hereof:
UBS SECURITIES LLC
By:
------------------------------
Name:
Title:
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