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EXHIBIT 1.1
APACHE CORPORATION
PREFERRED STOCK
UNDERWRITING AGREEMENT BASIC TERMS
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APACHE CORPORATION
Preferred Stock
UNDERWRITING AGREEMENT BASIC TERMS
Apache Corporation, a Delaware corporation (the "Company"), may issue
and sell from time to time its shares of preferred stock, no par value (the
"Preferred Stock"). Each issue of Preferred Stock may vary as to shares,
liquidation values, dividend rate or rates and timing of payments thereof,
redemption provisions, if any, conversion provisions, if any, and any other
variable terms as set forth in the Terms Agreement (as defined below) relating
thereto. The Preferred Stock may be represented by depositary shares (the
"Depositary Shares") pursuant to a deposit agreement (the "Deposit Agreement")
among the Company, Norwest Bank Minnesota, National Association (the
"Depositary"), and all holders from time to time of receipts issued thereunder.
Whenever the Company determines to make an offering of Preferred
Stock or Depositary Shares, as the case may be, the Company will enter into an
agreement (the "Terms Agreement") providing for the sale of such securities
(the "Offered Securities") to, and the purchase and offering thereof by, one or
more underwriters specified in the Terms Agreement (the "Underwriters", which
term shall include any Underwriters substituted pursuant to Section 10 hereof).
The Terms Agreement relating to the Offered Securities shall specify the names
of the Underwriters participating in such offering, the amount of Offered
Securities which each such Underwriter severally agrees to purchase, the price
at which the Offered Securities are to be purchased by the Underwriters from
the Company, the initial public offering price, the time and place of delivery
and payment, such other information as is indicated in Exhibit A hereto and
such other terms as are agreed by the Company and the Underwriters. In
addition, each Terms Agreement shall specify whether the Company has agreed to
grant to the Underwriters an option to purchase additional Offered Securities
to cover over-allotments, if any, and the number of Offered Securities subject
to such option described in Section 2(b) hereof (the "Option Securities"). As
used herein, the term "Offered Securities" shall include the Option Securities,
if any, and the number of firm shares of preferred stock or depositary shares
specified in the Terms Agreement (the "Firm Securities"); and "Representatives"
shall mean the Underwriter or Underwriters so specified in the Terms Agreement
or, if no Underwriter is so specified, shall mean each Underwriter. The Terms
Agreement may be in the form of an exchange of any standard form of written
telecommunication between the Underwriters and the Company. The offering of the
Offered Securities will be governed by the Terms Agreement, as supplemented
hereby (collectively, this "Agreement"), and this Agreement shall inure to the
benefit of and be binding upon each Underwriter participating in the offering
of the Offered Securities.
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The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-57785) for the registration of Preferred Stock and Depositary Shares,
including the Offered Securities, under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), and has prepared and filed such amendments thereto as
may have been required to the date hereof. Such registration statement, as
amended, has been declared effective by the Commission. As provided in Section
3(a), a prospectus supplement reflecting the terms of the Offered Securities,
the terms of the offering thereof and the other matters set forth therein has
been prepared and will be filed pursuant to Rule 424 under the 1933 Act. Such
prospectus supplement, in the form first filed after the date of the Terms
Agreement pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement". Such registration statement, as amended at the date of the Terms
Agreement, including the exhibits thereto and the documents incorporated by
reference therein, is herein called the "Registration Statement". Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "Rule 462(b) Registration Statement,"
and after such filing the term "Registration Statement" shall include the Rule
462(b) Registration Statement. The basic prospectus included in the
Registration Statement relating to all offerings of Preferred Stock under the
Registration Statement, as supplemented by the Prospectus Supplement, is herein
called the "Prospectus", except that, if such basic prospectus is amended or
supplemented on or prior to the date on which the Prospectus Supplement is
first filed pursuant to Rule 424, the term "Prospectus" shall refer to the
basic prospectus as so amended or supplemented and as supplemented by the
Prospectus Supplement or, if any revised prospectus shall be provided to the
Underwriters by the Company for their use in connection with the offering of
the Offered Securities which differs from such basic prospectus and Prospectus
Supplement (whether or not required to be filed by the Company pursuant to Rule
424), the term "Prospectus" shall refer to such revised prospectus (including
any prospectus supplement) from and after the time it is first provided to the
Underwriters for such use, in either case including the documents filed by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), that are incorporated by reference therein.
SECTION 1. Representations and Warranties. The Company represents and
warrants to each Underwriter named in the Terms Agreement as of the date
thereof and as of the Closing Time referred to in Section 2(c) hereof, and as
of each Date of Delivery (if any) referred to in Section 2(b) hereof (in each
case, a "Representation Date"), as follows:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws
of the State of Delaware with corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and
to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing
in the State of Texas and in each other jurisdiction in
which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be
in good standing would not have a material adverse effect
on the condition, financial or otherwise, or the
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results of operations, business affairs or business
prospects of the Company and its subsidiaries considered
as one enterprise.
(b) Each "significant subsidiary" of the Company as
defined in Rule 405 of Regulation C of the 1933 Act
Regulations (collectively, the "Significant
Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its
properties and conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to
so qualify and be in good standing would not have a
material adverse effect on the condition, financial or
otherwise, or the results of operations, business affairs
or business prospects of the Company and its subsidiaries
considered as one enterprise; and, except as described in
the Prospectus, all of the issued and outstanding capital
stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-
assessable and, except for directors' qualifying shares
(if applicable), is owned by the Company, directly or
through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(c) At the time the Registration Statement and the Rule
462(b) Registration Statement, if any, became effective
and as of each Representation Date, the Registration
Statement and the Rule 462(b) Registration Statement, if
any, complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and
regulations of the Commission promulgated thereunder; the
Registration Statement and the Rule 462(b) Registration
Statement, if any, each at the time it became effective,
did not, and at each time thereafter at which any
amendment to the Registration Statement becomes effective
or any Annual Report on Form 10-K is filed by the Company
with the Commission and as of each Representation Date,
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 the Prospectus, as of each Representation
Date, does not and will not include an untrue statement
of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made,
not misleading; provided, however, that the
representations and warranties in this subsection shall
not apply to statements in or omissions from the
Registration Statement and the Rule 462(b) Registration
Statement, if any, or the Prospectus made in reliance
upon and in conformity with information furnished to the
Company in writing by the Underwriters expressly for use
in the Registration Statement and the Rule 462(b)
Registration Statement, if any, or the Prospectus.
(d) The documents incorporated by reference in the
Prospectus, at the time they were or hereafter are filed
with the Commission, complied or when so filed will
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comply, as the case may be, in all material respects with
the requirements of the 1934 Act and the rules and
regulations of the Commission promulgated thereunder (the
"1934 Act Regulations"), and, when read together and with
the other information in the Prospectus, did not and will
not include an untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary in order to make the statements
therein, in the light of the circumstances under which
they were or are made, not misleading.
(e) The accountants who certified the financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus are independent
public accountants with respect to the Company as
required by the 1933 Act and the 1933 Act Regulations.
(f) The financial statements and any supporting schedules
of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement
and the Prospectus present fairly the consolidated
financial position of the Company and its subsidiaries as
of the dates indicated and the consolidated results of
their operations for the periods specified; except as
stated therein, said financial statements have been
prepared in conformity with U.S. generally accepted
accounting principles applied on a consistent basis; the
supporting schedules included or incorporated by
reference in the Registration Statement and the
Prospectus present fairly the information required to be
stated therein; and the pro forma financial statements
and the related notes thereto, if any, included or
incorporated by reference in the Registration Statement
and the Prospectuses present fairly the information shown
therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro
forma financial statements and have been properly
compiled on the bases described therein, and the
assumptions used in the preparation thereof are
reasonable and the adjustments used therein are
appropriate to give effect to the transactions and
circumstances referred to therein.
(g) The petroleum engineers who have consented to being
named as having reviewed certain reserve data included or
incorporated by reference in the Prospectus are
independent engineers with respect to the Company and its
subsidiaries.
(h) This Agreement has been duly authorized, executed and
delivered by the Company and, upon execution and delivery
by the Underwriters, will be valid and legally binding
agreement of the Company.
(i) In case the Offered Securities include Depositary
Shares, the Deposit Agreement has been duly authorized,
executed and delivered by the Company and assuming due
authorization, execution and delivery by the Depositary,
constitutes a valid and legally binding obligation of the
Company enforceable in accordance with its terms except
as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and
by general equity principles.
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(j) The Company's authorized equity capitalization is as
set forth in the Prospectus; and the Preferred Stock, the
Depositary Shares, if any, and the Company's common stock
conform to the descriptions thereof contained in the
Prospectus.
(k) The Offered Securities have been duly and validly
authorized for issuance, offer and sale pursuant to this
Agreement and the applicable Terms Agreement and when
issued and delivered pursuant to the provisions of this
Agreement, the Deposit Agreement, if any, and the
applicable Terms Agreement against payment of the
consideration therefor, the Offered Securities will be
validly issued, fully paid and non-assessable, and the
issuance of such securities will not be subject to any
preemptive or similar rights
(l) Since the respective dates as of which information is
given in the Registration Statement, any Rule 462(b)
Registration Statement and the Prospectus, except as may
otherwise be stated therein or contemplated thereby, (1)
there has been no material adverse change in the
condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course
of business and (2) there have been no material
transactions entered into by the Company or any of its
subsidiaries other than those in the ordinary course of
business.
(m) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance
or observance of any material obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or any
of them or their properties may be bound, where the
consequences of such violation or default would have a
material adverse effect on the condition, financial or
otherwise, or the results of operations, business affairs
or business prospects of the Company and its subsidiaries
considered as one enterprise; and the execution and
delivery of this Agreement and the Terms Agreement and
the consummation of the transactions contemplated herein
and therein have been duly authorized by all necessary
corporate action of the Company and will not conflict
with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company
or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of
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its subsidiaries is a party or by which it or any of them
may be bound or to which any of the property or assets of
the Company or any subsidiary thereof is subject, nor
will such action result in any violation of the
provisions of the charter or by-laws of the Company or
any law, administrative regulation or administrative or
court order or decree, where the consequences of such
conflict, breach, creation, imposition, violation or
default would have a material adverse effect on the
condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one
enterprise.
(n) No consent, approval, authorization, order or decree
of any court or governmental agency or body is required
for the consummation by the Company of the transactions
contemplated by this Agreement or in connection with the
sale of Offered Securities hereunder, except such as have
been obtained or rendered, as the case may be, or as may
be required under state securities laws ("Blue Sky").
(o) Except as may be included or incorporated by
reference in the Registration Statement and the
Prospectus, there is no action, suit or proceeding before
or by any court or governmental agency or body, domestic
or foreign, now pending or, to the knowledge of the
Company, threatened against or affecting the Company or
any of its subsidiaries which might, in the opinion of
the Company, result in any material adverse change in the
condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one
enterprise, or could reasonably be expected to materially
and adversely affect the properties or assets thereof or
could reasonably be expected to materially and adversely
affect the consummation of this Agreement or the Terms
Agreement or any transaction contemplated hereby or
thereby.
(p) There are no contracts or documents of the Company or
any of its subsidiaries which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or
by the 1933 Act Regulations which have not been so filed.
(q) Neither the Company nor any of its subsidiaries is in
violation of any law, ordinance, governmental rule or
regulation or court decree to which it may be subject or
has failed to obtain any license, permit, franchise or
other governmental authorization necessary to the
ownership of its property or to the conduct of its
business, which violation or failure would materially
adversely affect the condition, financial or otherwise,
or the results of operations, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise; and the Company and its
subsidiaries own or possess or have obtained all
governmental licenses, permits, consents, orders,
approvals and other authorizations and have properly
filed with the appropriate authorities all notices,
applications and other documents necessary to lease or
own their respective properties and to carry on their
respective businesses as presently conducted, except
where the failure to possess such licenses or
authorizations or make such
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filings would not materially adversely affect the
condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one
enterprise.
(r) The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, adequate trademarks,
service marks and trade names necessary to conduct the
business now operated by them, except as set forth or
incorporated by reference in the Registration Statement
or except where the failure to own or possess the same
would not materially adversely affect the condition,
financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, and
neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with
asserted rights of others with respect to any trademarks,
service marks or trade names which, singly or in the
aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially adversely affect the
condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one
enterprise.
(s) The Company and its subsidiaries have legal, valid
and defensible title to all of their interests in oil and
gas properties and to all other real and personal
property owned by them and any other real property and
buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and
enforceable leases, in each case free and clear of all
mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances and defects of any kind,
except such as (1) are described in the Prospectus, (2)
liens and encumbrances under operating agreements,
unitization and pooling agreements, production sales
contracts, farm-out agreements and other oil and gas
exploration and production agreements, in each case that
secure payment of amounts not yet due and payable for the
performance of other inchoate obligations and are of a
scope and nature customary in connection with similar
drilling and producing operations or (3) those that do
not have a material adverse effect on the condition,
financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(t) The information underlying the estimates of oil and
gas reserves as described in the Prospectus is complete
and accurate in all material respects (or, with regard to
any information underlying the estimates prepared by any
petroleum engineers retained by the seller of such oil
and gas reserves, is, to the best knowledge of the
Company after reasonable investigation, complete and
accurate in all material respects); other than production
of the reserves in the ordinary course of business and
intervening product price fluctuations described in the
Prospectus, the Company is not aware of any facts or
circumstances that would result in a material adverse
change in the reserves or the present value of future net
cash flows therefrom as described in the Prospectus.
Estimates of such reserves and present values comply in
all material respects with the applicable requirements of
Regulation S-X and Industry Guide 2 under the 1933 Act.
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(u) Neither the Company nor any of its subsidiaries is
required to be registered under the Investment Company
Act of 1940, as amended (the "1940 Act").
(v) The Company has complied and will comply with
the provisions of Florida H.B. 1771, codified as Section
517.075 of the Florida Statutes, 1987, as amended, and
all regulations promulgated thereunder relating to
issuers doing business in Cuba.
(w) Except as described in the Registration Statement,
(1) neither the Company nor any of its subsidiaries is in
violation of any local or foreign laws or regulations
relating to pollution or protection of human health, the
environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials")
or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"),
except such violations as would not, singly or in the
aggregate, have a material adverse effect on the
condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one
enterprise, and (2) to the best of the Company's
knowledge, there are no events or circumstances that
could reasonably be expected to be the basis of an order
for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or
agency, against or affecting the Company or any of its
subsidiaries relating to any Hazardous Materials or the
violation of any Environmental Laws, which, singly or in
the aggregate, could reasonably be expected to have a
material adverse effect on the condition, financial or
otherwise, or the results of operations, business affairs
or business prospects of the Company and its subsidiaries
considered as one enterprise.
Any certificate signed by any director or officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company as to the matters covered
thereby.
SECTION 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase the
Offered Securities pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall
be subject to the terms and conditions herein and therein set forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the Terms Agreement, an option to the
Underwriters named in the Terms Agreement, severally and not jointly, to
purchase up to the number of Option Securities set forth therein at the same
price
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per share as is applicable to the Offered Securities plus accrued dividends, if
any. Such option, if granted, will expire 30 days after the date of the Terms
Agreement, and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Offered Securities upon notice by the
Representatives to the Company setting forth the number of Option Securities as
to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Securities. Any such time and
date of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days and not
earlier than two full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined, unless otherwise
agreed upon by the Representatives and the Company. If the option is exercised
as to all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase the proportion of the total
number of Option Securities then being purchased that the number of Firm
Securities each such Underwriter has agreed to purchase, as set forth in the
Terms Agreement, bears to the total number of Firm Securities, subject to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment of the purchase price for, and delivery of, the
Firm Securities to be purchased by the Underwriters shall be made at the place
set forth in the Terms Agreement, or at such other place as shall be agreed
upon by the Representatives and the Company, on the third business day (unless
postponed in accordance with the provisions of Section 10) following the date
of the Terms Agreement or such other time as shall be agreed upon by the
Underwriters and the Company (such time and date being referred to as the
"Closing Time"). Except as specified in the Terms Agreement, payment shall be
made to the Company by wire transfer in same day funds to the account of the
Company specified in the Terms Agreement against delivery to the Underwriters
for the respective accounts of the Underwriters of the Firm Securities to be
purchased by them. In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price
for, and delivery of certificates representing, such Option Securities shall be
made at such place as shall be agreed upon by the Representatives and the
Company, on each Date of Delivery as agreed by the Representatives and the
Company. The Firm Securities shall be in such denominations and registered in
such names as the Underwriters may request in writing at least two business
days prior to the Closing Time or relevant Date of Delivery, as the case may
be. The Firm Securities and the Option Securities, if any, will be made
available for examination and packaging by the Representatives on or before the
first business day prior to the Closing Time or relevant Date of Delivery, as
the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Immediately following the execution of the Terms
Agreement, the Company will prepare a Prospectus
Supplement in form approved by the Representatives
setting forth the number, class and designation of
Offered Securities, the names of the Underwriters and the
number of the Offered Securities which each severally has
agreed to purchase, the names of the Underwriters, the
price at which the Offered Securities are to be purchased
by the Underwriters from the Company, the initial public
offering price, the selling concession and reallowance,
if any,
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any Option Securities, and such other information as the
Representatives and the Company deem appropriate in
connection with the offering of the Offered Securities.
The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing
pursuant to Rule 424 of the 1933 Act Regulations and will
furnish to the Underwriters named therein as many copies
of the Prospectus (including the Prospectus Supplement)
as the Representatives shall reasonably request.
(b) If at any time when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the
Offered Securities any event shall occur or condition
exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or counsel for
the Company, to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue
statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein not misleading in the light of the circumstances
existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the opinion of
either such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly amend the
Registration Statement and the Prospectus, whether by
filing documents pursuant to the 1934 Act or the 1933 Act
or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration
Statement and the Prospectus comply with such
requirements.
(c) The Company will make generally available to its
security holders as soon as practicable, but not later
than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations)
covering each twelve month period beginning, in each
case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement
with respect to each sale of Offered Securities.
(d) While the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered
Securities, the Company will give the Representatives
notice of its intention to file any additional
registration statement with respect to the registration
of additional Preferred Stock, any amendment to the
Registration Statement (including any filing under Rule
462(b)) or any amendment or supplement to the Prospectus,
whether pursuant to the 1934 Act, the 1933 Act or
otherwise; will furnish the Underwriters with copies of
any such amendment or supplement or other documents
proposed to be filed a reasonable time in advance of such
proposed filing or use, as the case may be; and will not
file any such amendment or supplement or other documents
in a form to which the Representatives or counsel to the
Underwriters reasonably object.
(e) While the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered
Securities, the Company will notify the Representatives
immediately, and promptly confirm the notice in writing,
of (i)
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the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for
filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act which will
be incorporated by reference into the Registration
Statement or the Prospectus, (iii) the receipt of any
comments from the Commission with respect to the
Registration Statement, the Prospectus or the Prospectus
Supplement, (iv) any request by the Commission for any
amendment to the Registration Statement, or any amendment
or supplement to the Prospectus or for additional
information, (v) the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose and (vi) any change in the
rating assigned by any nationally recognized statistical
rating organization to any debt securities of the Company
or the public announcement by any nationally recognized
statistical rating organization that it has under
surveillance or review, with possible negative
implications, its rating of any debt securities of the
Company. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the
earliest possible moment.
(f) The Company will deliver to each Underwriter one
conformed copy of the Registration Statement (as
originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference
in the Prospectus) and will also deliver to the
Representatives as many conformed copies of the
Registration Statement as originally filed and of each
amendment thereto (without exhibits) as the
Representatives may reasonably request. While the
Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Offered Securities, the
Company will furnish to the Representatives as many
copies of the Prospectus (including the Prospectus
Supplement) as the Representatives reasonably request.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Offered Securities for
offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States
as the Underwriters may designate, and will maintain such
qualifications in effect for as long as may be required
for the distribution of the Offered Securities; provided,
however, that the Company shall not be obligated to file
any general consent to service of process or to qualify
as a foreign corporation in any jurisdiction in which it
is not so qualified. The Company will file such
statements and reports as may be required by the laws of
each jurisdiction in which the Offered Securities have
been qualified as above provided. The Company will
promptly advise the Representatives of the receipt by the
Company of any notification with respect to the
suspension of the qualification of the Offered Securities
for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such
purpose.
(h) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934
Act in connection with sales of the Offered Securities,
will file all documents required to be filed with the
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Commission pursuant to Sections 13, 14 or 15(d) of the
1934 Act within the time periods prescribed by the 1934
Act and the 1934 Act Regulations.
(i) If specified in the Terms Agreement, between the date
of the Terms Agreement and the completion of the
distribution of the Offered Securities or the Closing
Time, whichever is later, or such other time as is
specified in the Terms Agreement, the Company will not,
without the prior written consent of the Representatives,
offer or sell, grant any option for the sale of, or enter
into any agreement to sell, any securities of the Company
substantially similar to the Offered Securities (other
than the Offered Securities that are to be sold pursuant
to such agreement).
SECTION 4. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase Offered Securities pursuant to this Agreement
are subject to the accuracy of the representations and warranties on the part
of the Company herein contained, to the accuracy of the statements which the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of all of its covenants and other
obligations hereunder and under the Terms Agreement, and to the following
further conditions:
(a) At the Closing Time, no stop order suspending the
effectiveness of the Registration Statement or any Rule
462(b) Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(b) At the Closing Time, the Representatives shall have
received:
(1) The favorable opinion, dated as of the
Closing Time, of Xxxxxxx, Xxxx & Xxxxx, P.C., counsel to
the Company, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) This Agreement and the Terms Agreement
have been duly authorized, executed and delivered by the
Company.
(iii) The Offered Securities have been duly
authorized for issuance, offer and sale pursuant to this
Agreement and the applicable Terms Agreement and, when
issued, authenticated and delivered pursuant to the
provisions of this Agreement, the Deposit Agreement and
the applicable Terms Agreement against payment of the
consideration therefor, will be validly issued, fully
paid and non-assessable, and the issuance of such Offered
Securities will not be subject to any preemptive or
similar rights.
(iv) The Offered Securities conform in all
material respects to the statements relating thereto in
the Prospectus; and the statements in the Prospectus
under the captions "Description of Preferred Stock, "
"Description of Depositary Shares" and "Description of
Capital Stock", insofar as they purport to summarize
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certain provisions of documents specifically referred to
therein, are accurate summaries of such provisions.
(v) The Registration Statement, including
any Rule 462(b) Registration Statement, has been declared
effective by the Commission under the 1933 Act and, to
the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has
been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(vi) The execution and delivery of this
Agreement and the Terms Agreement, the issuance of
Offered Securities covered by the Terms Agreement, the
incurrence of the obligations set forth herein and
therein, and the consummation of the transactions herein
and therein contemplated do not and will not conflict
with or constitute or result in a breach of, or default
under, the certificate of incorporation or by-laws, each
as in effect at the applicable Closing Time, of the
Company.
(vii) In case the Offered Securities include
Depositary Shares, the Deposit Agreement has been duly
authorized, executed and delivered by the Company and
assuming due authorization, execution and delivery by the
Depositary, constitutes a valid and legally binding
obligation of the Company enforceable in accordance with
its terms except as enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights
generally and by general equity principles.
(viii) The Company's authorized equity
capitalization is as set forth in the Prospectus.
(ix) The Registration Statement, including any
Rule 462(b) Registration Statement, and the Prospectus
(except for financial statements and engineering reports
and other financial or engineering data, as to which such
counsel need not express any opinion), as of their
respective effective or issue dates, appeared on their
face to be appropriately responsive to the requirements
of the 1933 Act and the 1933 Act Regulations.
(x) The information contained in the
Prospectus under the caption "Certain United States
Federal Income Tax Considerations", to the extent that
such information constitutes matters of law, summaries of
legal matters or legal conclusions, has been reviewed by
such counsel and is correct.
In rendering such opinion, counsel for the Company may
rely (i) as to matters of fact upon the representations
of officers of the Company contained in any certificate
delivered to such counsel and certificates of public
officials, which certificates shall be attached to or
delivered with such opinion and (ii) as to the laws of
the State of New York applicable to the enforceability of
the Deposit Agreement upon the opinion of Xxxxx & Wood
LLP. Such opinion shall be
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limited to the General Corporation Law of the State of
Delaware, the laws of the State of Texas and the laws of
the United States of America.
(2) The favorable opinion of Xxxxx X.
Xxxxxxxxxxx, General Counsel of the Company, to the effect that:
(i) The Company has the corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and
to enter into and perform its obligations under this
Agreement and the Terms Agreement.
(ii) To the best knowledge and information of
such counsel, the Company is duly qualified as a foreign
corporation to transact business and is in good standing
in the State of Texas and in each other jurisdiction in
which such qualification is required, except where the
failure to so qualify and be in good standing would not
have a material adverse effect on the condition,
financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(iii) Each Significant Subsidiary has been
duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power
and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus,
and, to the best of such counsel's knowledge and
information, is duly qualified as a foreign corporation
to transact business and is in good standing in each
jurisdiction in which such qualification is required,
except where the failure to so qualify and be in good
standing would not have a material adverse effect on the
condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one
enterprise; and all of the issued and outstanding capital
stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-
assessable, and is owned by the Company, directly or
indirectly, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity (except as described in the
Prospectus).
(iv) In case the Offered Securities include
Depositary Shares, the Deposit Agreement has been duly
authorized, executed and delivered by the Company and
assuming due authorization, execution and delivery by the
Depositary, constitutes a valid and legally binding
obligation of the Company enforceable in accordance with
its terms except as enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights
generally and by general equity principles.
(v) The Company's authorized equity
capitalization is as set forth in the Prospectus; and the
Preferred Stock, the Depositary Shares, if any, and the
Company's common stock conform to the descriptions
thereof contained in the Prospectus.
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(vi) The Offered Securities have been duly
and validly authorized for issuance, offer and sale
pursuant to this Agreement and the applicable Terms
Agreement and when issued and delivered pursuant to the
provisions of this Agreement, the Deposit Agreement, if
any, and the applicable Terms Agreement against payment
of the consideration therefor, the Offered Securities
will be validly issued, fully paid and non-assessable,
and the issuance of such securities will not be subject
to any preemptive or similar rights,
(vii) Each document filed pursuant to the
1934 Act and incorporated by reference in the Prospectus
(except for financial statements, supporting schedules
and other financial or statistical information as to
which no opinion need be rendered) appeared on its face
to be appropriately responsive when so filed to the
requirements of the 1934 Act and the 1934 Act
Regulations.
(viii) Neither the Company nor any of its
subsidiaries is required to be registered under the 1940
Act.
(ix) No consent, approval, authorization,
order or decree of any court or governmental authority or
agency is required that has not been obtained in
connection with the consummation by the Company of the
transactions contemplated by this Agreement, except such
as have been obtained or rendered, as the case may be, or
as may be required under the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the 1934 Act Regulations or
state securities laws; and the execution and delivery of
this Agreement and the consummation of the transactions
contemplated herein and therein have been duly authorized
by all necessary corporate action of the Company and, to
the best knowledge and information of such counsel, will
not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to,
any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them
may be bound or to which any of the property or assets of
the Company or any such subsidiary is subject, nor will
such action result in any violation of the provisions of
the charter or by-laws of the Company or any applicable
law, administrative regulation or, to the best knowledge
and information of such counsel, administrative or court
order or decree.
(x) Neither the Company nor any of its
Significant Subsidiaries is in violation of its charter
or by-laws.
(xi) To the best knowledge and information of
such counsel, neither the Company nor any of its
subsidiaries is in violation of any law, ordinance,
governmental rule or regulation or court decree to which
it may be subject or has failed to obtain any license,
permit, franchise or other governmental authorization
necessary to the ownership of its property or to the
conduct of its business, which violation or failure would
materially adversely affect the condition, financial or
otherwise, or the results of operations, business affairs
or business prospects of
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the Company and its subsidiaries considered as one
enterprise; and, to the best knowledge and information of
such counsel, the Company and its subsidiaries own or
possess or have obtained all governmental licenses,
permits, consents, orders, approvals and other
authorizations necessary to lease or own their respective
properties and to carry on their respective businesses as
presently conducted, except where the failure to obtain
such authorizations would not have a material adverse
effect on the condition, financial or otherwise, or the
results of operations, business affairs or business
prospects of the Company and its subsidiaries considered
as one enterprise.
(xii) To the best of such counsel's knowledge
and information, there is no action, suit or proceeding
before or by any court or governmental agency or body,
domestic or foreign, now pending, or threatened against
or affecting, the Company or any of its subsidiaries,
which would be reasonably expected to result in any
material adverse change in the condition, financial or
otherwise, or in the results of operations, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or would
materially and adversely affect the properties or assets
thereof or would materially and adversely affect the
consummation of this Agreement and the Terms Agreement or
any transaction contemplated hereby or thereby.
(xiii) To the best of such counsel's
knowledge and information, there are no contracts or
other documents required to be described or referred to
in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein
or filed or incorporated by reference as exhibits
thereto, the descriptions thereof or references thereto
are correct in all material respects, and, to the best of
such counsel's knowledge and information, no default
exists in the due performance or observance of any
material obligation, agreement, covenant or conditions
contained in any contract, or other documents so
described, referred to, filed or incorporated by
reference where the consequences of such default would
have a material adverse effect on the condition,
financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
In rendering such opinion, Xxxxx X.
Xxxxxxxxxxx may rely as to matters of fact upon the
representations of officers of the Company contained in
any certificate delivered to such counsel and
certificates of public officials, which certificates
shall be attached to or delivered with such opinion. Such
opinion shall be limited to the General Corporation Law
of the State of Delaware, the laws of the State of Texas
and the laws of the United States of America.
(3) The favorable opinion, dated as
of the Closing Time, of Xxxxx & Wood LLP, counsel for the
Underwriters, with respect to the matters set forth in clauses (i) to
(v), inclusive, and (ix) of subsection (b)(1) of this Section.
(4) In giving their opinions required
by subsection (b)(1), (b)(2) and (b)(3), respectively, of this
Xxxxxxx 0, Xxxxxxx, Xxxx & Xxxxx, P.C., Xxxxx X.
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Kobiashvili and Xxxxx & Xxxx LLP shall each additionally state that
in the course of the preparation of the Registration Statement and
the Prospectus such counsel has considered the information set forth
therein in light of the matters required to be set forth therein, and
has participated in conferences with officers and representatives of
the Company including its independent public accountants, during the
course of which the contents of the Registration Statement and the
Prospectus and related matters were discussed. Such counsel need not
independently check the accuracy or completeness of, or otherwise
verify, and accordingly need not pass upon, and accordingly need not
assume responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus and such counsel may, in good faith, rely as to
materiality upon the judgment of officers and representatives of the
Company. Such counsel shall additionally state that, however, as a
result of such consideration and participation, nothing has come to
such counsel's attention which causes such counsel to believe that
the Registration Statement, at the time it became effective (or, if
an amendment to the Registration Statement or an Annual Report on
Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement, then
at the time such amendment became effective or at the time of the
most recent such filing, as the case may be), contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, at the time the Prospectus was
issued at the time any such amendment or supplement was issued or, at
the Closing Time included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to
the financial statements and engineering reports and other financial
or engineering data contained in the Registration Statement
(including the Prospectus)).
(c) At the Closing Time, there shall not have
been, since the date of the Terms Agreement or since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, any material
adverse change in the condition, financial or otherwise,
or in the results of operations, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in
the ordinary course of business, and the Representatives
shall have received a certificate of the Chief Executive
Officer, President or a Vice President and the Treasurer,
the Assistant Treasurer, the principal financial officer
or principal accounting officer of the Company, dated as
of the Closing Time, to the effect that (i) there has
been no such material adverse change with respect to the
Company and its subsidiaries, (ii) the representations
and warranties of the Company contained in Section 1 are
true and correct as of the Closing Time, (iii) the
Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate and
(iv) no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration
Statement has been issued and no proceedings for that
purpose have been initiated
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or threatened by the Commission. As used in this Section
4(c), the term "Prospectus" means the Prospectus in the
form first provided to the applicable Underwriter or
Underwriters for use in confirming sales of the Offered
Securities.
(d)(1) On the date of the Terms Agreement, the
Underwriters shall have received a letter from Xxxxxx
Xxxxxxxx LLP, dated as of the date thereof and in form
and substance satisfactory to the Underwriters, to the
effect that:
(i) They are independent accountants with
respect to the Company and its subsidiaries within the
meaning of the 1933 Act, the 1933 Act Regulations, the
1934 Act and the 1934 Act Regulations.
(ii) It is their opinion that the
consolidated financial statements and supporting
schedule(s) included or incorporated by reference in the
Registration Statement and the Prospectus and audited by
them and covered by their opinions therein comply in form
in all material respects with the applicable accounting
requirements of the 1933 Act, the 1933 Act Regulations,
the 1934 Act and the 1934 Act Regulations.
(iii) They have performed specified
procedures, not constituting an audit, including a
reading of the latest available interim financial
statements of the Company and its indicated subsidiaries,
a reading of the minute books of the Company and such
subsidiaries since the end of the most recent fiscal year
with respect to which an audit report has been issued,
inquiries of and discussions with certain officials of
the Company and such subsidiaries responsible for
financial and accounting matters with respect to the
unaudited consolidated financial statements included or
incorporated by reference in the Registration Statement
and the Prospectus and the latest available interim
unaudited financial statements of the Company and its
subsidiaries, and such other inquiries and procedures as
may be specified in such letter, and on the basis of such
inquiries and procedures, nothing came to their attention
that caused them to believe that: (A) any material
modifications should be made to the unaudited
consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus for them to be
in conformity with generally accepted accounting
principles in the United States, (B) the unaudited
consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the 1934 Act
Regulations or (C) at a specified date not more than
three days prior to the date of such letter, there was
any change in the consolidated capital stock, any
increase in consolidated long-term debt or any decrease
in the consolidated net current assets or consolidated
net assets of the Company and its subsidiaries, in each
case as compared with the amounts shown on the most
recent consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus or, during the
period from the date of such balance sheet to a specified
date not more than three days prior to the date of such
letter, there were
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any decreases, as compared with the corresponding period
in the preceding year, in consolidated revenues or in the
total or per-share amounts of income before extraordinary
items or of net income of the Company and its
subsidiaries, except in all instances for changes,
increases or decreases that the Registration Statement
and the Prospectus disclose have occurred or may occur or
except for such exceptions enumerated in such letter as
shall have been agreed to by the Underwriters and the
Company.
(iv) They have performed specified
procedures, not constituting an audit, set forth in their
letter, based upon which nothing came to their attention
that caused them to believe that the unaudited pro forma
consolidated condensed financial statements, if any,
included or incorporated by reference in the Registration
Statement or the Prospectus do not comply as to form in
all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X and that the
pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those
statements.
(v) In addition to the audit referred to in
their opinions and the limited procedures referred to in
clauses (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an audit,
with respect to certain amounts, percentages and
financial information which are included or incorporated
by reference in the Registration Statement and the
Prospectus and which are specified by the Underwriters,
and have found such amounts, percentages and financial
information to be in agreement with the relevant
accounting, financial and other records of the Company
and its subsidiaries identified in such letter.
(2) At the Closing Time, the
Underwriters shall have received from Xxxxxx Xxxxxxxx
LLP, a letter, dated as of the Closing Time, to the
effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (d)(1) of this
Section, except that the specified date referred to shall
be a date not more than three days prior to the Closing
Time.
(e) At the Closing Time, counsel for the Underwriters
shall have been furnished with such documents and
opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of
the Offered Securities as herein contemplated and related
proceedings or in order to evidence the accuracy and
completeness of any of the representations and
warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the
Offered Securities as herein and in the Terms Agreement
contemplated shall be satisfactory in form and substance
to the Representatives.
(f) In the event that the Terms Agreement provides for
Option Securities and the Underwriters exercise their
option pursuant to Section 2(b) hereof to purchase all or
any portion of the Option Securities, the representations
and warranties of the Company contained herein and the
statements in any certificates furnished by the
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Company hereunder shall be true and correct as of each
Date of Delivery, and the Underwriters shall have
received:
(1) Unless the Date of Delivery is the Closing
Time, a certificate, dated such Date of Delivery, of the Chief
Executive Officer, President or a Vice President and the Treasurer,
the Assistant Treasurer, the principal financial officer or principal
accounting officer of the Company, in their capacities as such,
confirming that the certificate delivered at the Closing Time
pursuant to Section 4(c) hereof remains true and correct as of such
Date of Delivery.
(2) The favorable opinion of Xxxxxxx, Hall &
Xxxxx, P.C., counsel for the Company, and Xxxxx X. Xxxxxxxxxxx,
General Counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise substantially to the
same effect as the opinions required by subsections (1) and (2) of
Section 4(b) hereof.
(3) The favorable opinion of Xxxxx & Xxxx LLP,
counsel for the Underwriters, dated such Date of Delivery, relating
to the Option Securities and otherwise to the same effect as the
opinion required by subsection (3) to Section 4(b) hereof.
(4) Unless the Date of Delivery is the Closing
Time, a letter from Xxxxxx Xxxxxxxx LLP, in form and substance
satisfactory to the Underwriters and dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to the Underwriters at the Closing Time pursuant to Section 4(d)
hereof, except that the "specified date" in the letter shall be a
date not more than three days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Company at any time at or
prior to the Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including:
(a) the preparation and filing of the
Registration Statement, including any Rule 462(b)
Registration Statement, and all amendments thereto and
the Prospectus and any amendments or supplements thereto;
(b) the preparation, filing and reproduction of
this Agreement;
(c) the preparation, printing, issuance and
delivery of the Offered Securities, including any stock
or other transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the
Offered Securities;
(d) the fees and disbursements of the Company's
accountants and its counsel;
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(e) except as otherwise provided in the Terms
Agreement, the reasonable fees and disbursements of
counsel to the Underwriters;
(f) the qualification of the Offered Securities
under state securities laws in accordance with the
provisions of Section 3(k) hereof, including filing fees
and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky or Legal
Investment Survey;
(g) the printing and delivery to the Underwriters
in quantities as hereinabove stated of copies of the
Registration Statement and any amendments thereto, and of
the Prospectus and any amendments or supplements thereto,
and the delivery by the Underwriters of the Prospectus
and any amendments or supplements thereto in connection
with solicitations or confirmations of sales of the
Offered Securities;
(h) all fees and disbursements of any transfer
and paying agent;
(i) any fees charged by nationally recognized
statistical rating organizations for the rating of the
Offered Securities;
(j) the fees and expenses incurred in connection
with any listing of Offered Securities on a securities
exchange;
(k) the fees and expenses incurred with respect
to any filing with the National Association of Securities
Dealers, Inc.;
(l) any out-of-pocket expenses of the
Underwriters incurred with the approval of the Company;
and
(m) the cost of providing any CUSIP or other
identification numbers for the Offered Securities.
If this Agreement is terminated by the Underwriters in accordance
with the provisions of Section 9, the Company shall reimburse the Underwriters
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including any Rule
462(b) Registration Statement, including information deemed to be
part of the Registration Statement pursuant to Rule 430A(b) of the
1933 Act Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of a material
fact included in any
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preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission or such alleged
untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Company by an
Underwriter expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus
(or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that such
settlement is effected with the written consent of the Company, which
consent shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and expenses of counsel chosen by such Underwriter),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent (x) the
Company is required to do so under Section 6(c) below and (y) that
any such expense is not paid under (i) or (ii) above.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), any Rule 462(b) Registration Statement or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter expressly for use in the Registration
Statement (or any amendment thereto), any Rule 462(b) Registration Statement or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. If any
such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section for any legal or other expenses
subsequently incurred by the indemnified party in connection with
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the defense thereof other than reasonable costs of investigation; provided,
however, that each Underwriter shall have the right to employ counsel to
represent jointly the Underwriters and their respective controlling persons who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company under this
Section if, in the judgment of any of the Underwriters, it is advisable for
such Underwriter or Underwriters and controlling persons to be jointly
represented by separate counsel, and in that event the fees and expenses of
such separate counsel shall be paid by the Company. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties (which shall not unreasonably
be withheld), settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
in respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) For purposes of this Section 6, all references to the
Registration Statement, any preliminary prospectus or the Prospectus, or any
amendment or supplement to any of the foregoing, shall be deemed to include,
without limitation, any electronically transmitted copies thereof, including,
without limitation, any copies filed with the Commission pursuant to XXXXX.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Offered Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Offered
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total commission or underwriting discount
received by each Underwriter, in each case as set forth on the cover of the
Prospectus Supplement, bear to the aggregate initial public offering price of
the Offered Securities sold to or through such Underwriter as set forth on such
cover. The relative fault of the Company on the one hand and the Underwriters
on the other
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hand 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 or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Offered Securities sold to or through such Underwriter were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the principal amount of Offered Securities sold to
or through each Underwriter and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person of an Underwriter, or by or on behalf of the Company, and
shall survive each delivery of and payment for any Offered Securities.
SECTION 9. Termination.
(a) The Representatives may terminate this Agreement immediately upon
notice to the Company, at any time at or prior to the Closing Time if (i) there
has been, since the date of the Terms Agreement or since the respective dates
as of which information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there shall have occurred any material
adverse change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or crisis
the effect of which is such as to make it, in the judgment of the
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Representatives, impracticable to market the Offered Securities or enforce
contracts for the sale of the Offered Securities, or (iii) trading in any
securities of the Company has been suspended by the Commission or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium
shall have been declared by either Federal, New York or Texas authorities or if
a banking moratorium shall have been declared by the relevant authorities in
the country or countries of origin of any foreign currency or currencies in
which the Offered Securities are denominated or payable, or (iv) the rating
assigned by any nationally recognized statistical rating organization to any
debt securities of the Company as of the date of the Terms Agreement shall have
been lowered since that date or if any such rating organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any debt securities of the Company, or (v)
there shall have come to the attention of the Representatives any facts that
would cause them to reasonably believe that the Prospectus, at the time it was
required to be delivered to a purchaser of the Offered Securities, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not misleading. As used in
this Section 9, the term "Prospectus" means the Prospectus in the form first
provided to the applicable Underwriter or Underwriters for use in confirming
sales of the related Offered Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 5. Notwithstanding any such termination, (i)
the covenants set forth in Section 3(b), (d), and (e) with respect to any
offering of Offered Securities shall remain in effect so long as any
Underwriter owns any such Offered Securities purchased from the Company
pursuant to this Agreement and during the period when the Prospectus is
required to be delivered in connection with sales of the Offered Securities and
(ii) the covenants set forth in Section 3(c), (g), (h) and, if applicable, (i),
the provisions of Section 5, the indemnity agreement set forth in Section 6,
the contribution provisions set forth in Section 7 and the provisions of
Sections 8, 11, 12 and 13 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters shall fail at
the Closing Time or a Date of Delivery to purchase the Firm Securities which it
or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), then the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth. If, however, during such 24 hours the
Representatives shall not have completed such arrangements for the purchase of
all of the Defaulted Securities, then:
(a) if the amount of Defaulted Securities does
not exceed 10% of the amount of Firm Securities to be
purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the
proportions that their respective underwriting
obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
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(b) if the amount of Defaulted Securities exceeds
10% of the number of Firm Securities to be purchased on
such date, this Agreement or, with respect to any Date of
Delivery which occurs after the Closing Time, the
obligation of the Underwriters to purchase and of the
Company to sell the Option Securities to be purchased and
sold on such Date of Delivery shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the
obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, as the case may be, either the Representatives or the
Company shall have the right to postpone the Closing Time or the relevant Date
of Delivery, as the case may be, for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or the Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing, either delivered by hand, by mail or by telex, telecopier
or telegram, and any such notice shall be effective when received at the
address specified in this Section 11. Notices to the Underwriters shall be
directed as provided in the Terms Agreement. Notices to the Company shall be
directed to Apache Corporation, 0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000-0000, Attention: Vice President and Treasurer, with a copy to:
Xxxxx X. Xxxxxx, Xx., Xxxxxxx, Xxxx & Xxxxx, P.C., 0000 Xxxxx Xxxxx, Xxxxxxx,
Xxxxx 00000. Any party to this Agreement may from time to time designate
another address to receive notice pursuant to this Agreement by notice duly
given in accordance with the terms of this Section 11.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Offered Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
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SECTION 13. Governing Law. This Agreement and all the rights and
obligations of the parties hereto shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such State.
SECTION 14. Counterparts. Any Terms Agreement may be executed in one
or more counterparts and, if executed in more than one counterpart, the
executed counterparts thereof shall constitute a single instrument.
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EXHIBIT A
TERMS AGREEMENT
Preferred Stock
___________ __, 19__
Apache Corporation
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attention: [Title]
Dear Sirs:
The undersigned underwriters (the "Underwriters") understand that
Apache Corporation (the "Company") proposes to issue and sell [number of]
shares of its preferred stock, no par value (the "Offered Securities"). Subject
to the terms and conditions set forth herein or incorporated by reference
herein, the Underwriters offer to purchase, severally and not jointly, the
number of Offered Securities set forth below opposite their respective names at
$___ per share together with accrued dividend thereon from __________, 19__ to
the Closing Time:
Number of
Underwriter Firm Securities
------------ ---------------
------------------
Total
==================
The Offered Securities shall have the following terms:
Title of Offered Securities:
Number of Firm Securities to be issued:
Maximum number of Option Securities to be issued:
Current ratings:
Dividend rate:
Redemption provisions:
Conversion provision, if any:
Initial price to public:
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Underwriting Commission:
Purchase price
Closing Time:
Place of delivery and payment:
Company account for wire transfer of payment:
Lock-up pursuant to Section 3(i) of the
Underwriting Agreement Basic Terms: [yes] [no]
Securities Exchanges, if any, on which application will be made to list the
Offered Securities:
Other terms, if any:
All the provisions contained in "Apache Corporation-Preferred
Stock--Underwriting Agreement Basic Terms" (the "Basic Terms"), filed as an
exhibit to the Registration Statement relating to the Offered Securities and
attached hereto as Annex A, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined
in such document are used herein as therein defined.
Any notice by the Company to the Underwriters pursuant to this Terms
Agreement shall be sufficient if given in accordance with Section 11 of the
Basic Terms addressed to: [insert name and address of the lead manager or
managers or, if only one underwriter is a party hereto, of such firm] which
shall, for all purposes of this Agreement, be the "Representatives".
Very truly yours,
REPRESENTATIVE[S]
[Acting for themselves and as
Representative[s] of the Underwriters]
Accepted:
APACHE CORPORATION
By:
-----------------------------------------------
Title:
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ANNEX A
[Apache Corporation--Preferred Stock--
Underwriting Agreement Basic Terms]
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