EXHIBIT 4.4
NUEVO ENERGY COMPANY
$100,000,000
8 7/8% SENIOR SUBORDINATED NOTES DUE 2008, SERIES A
PURCHASE AGREEMENT
New York, New York
June 3, 1998
Salomon Brothers Inc
X.X. Xxxxxx Securities Inc.
NationsBanc Xxxxxxxxxx Securities LLC
As Representatives of the Initial Purchasers
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Nuevo Energy Company, a Delaware corporation (the "Company"), proposes to
issue and sell to the parties named in Schedule I hereto (the "Initial
Purchasers"), for whom you are acting as representatives (the
"Representatives"), $100,000,000 principal amount of its 8 7/8% Senior
Subordinated Notes due 2008, Series A (the "Securities"). The Securities are to
be issued under an indenture (the "Indenture") dated as of June 8, 1998, between
the Company and State Street Bank and Trust Company, as trustee (the "Trustee").
If you are the only Initial Purchasers, all references herein to the
Representatives shall be deemed to be to the Initial Purchasers.
The sale of the Securities to the Initial Purchasers will be made without
registration of the Securities under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon exemptions from the registration
requirements of the Securities Act. You have advised the Company that the
Initial Purchasers will offer and sell the Securities purchased by them
hereunder in accordance with Section 4 hereof as soon as you deem advisable.
In connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum, dated May 19, 1998 (including any and all
exhibits thereto, the
"Preliminary Memorandum"), and a final offering memorandum, dated June 3, 1998
(including any and all exhibits thereto, the "Final Memorandum"). Each of the
Preliminary Memorandum and the Final Memorandum sets forth certain information
concerning the Company and the Securities. The Company hereby confirms that it
has authorized the use of the Preliminary Memorandum and the Final Memorandum,
and any amendment or supplement thereto, in connection with the offer and sale
of the Securities by the Initial Purchasers. Unless stated to the contrary, all
references herein to the Final Memorandum are to the Final Memorandum at the
Execution Time (as defined below) and are not meant to include any amendment or
supplement subsequent to the Execution Time.
1. Representations and Warranties. The Company represents and warrants to
each Initial Purchaser as set forth below in this Section 1.
(a) The Preliminary Memorandum, at the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Final Memorandum, at the
date hereof, does not, and at the Closing Date (as defined below) will not
(and any amendment or supplement thereto, at the date thereof and at the
Closing Date, will not), contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representation or
warranty as to the information contained in or omitted from the Preliminary
Memorandum or the Final Memorandum, or any amendment or supplement thereto,
in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of the Initial Purchasers through the
Representatives specifically for inclusion therein.
(b) The Securities have been duly and validly authorized and, when
issued, delivered and sold, and authenticated by the Trustee, in accordance
with this Agreement and the Indenture, will have been duly and validly
executed, issued, delivered and authenticated, and will constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms and entitled to the benefits
provided by the Indenture, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other laws
of general application relating to or affecting creditors' rights generally
or the availability of equitable remedies.
(c) The Company has full corporate power and authority to enter into
this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of
the Company and is enforceable against the Company in accordance with the
terms hereof, except as rights to indemnity and contribution hereunder may
be limited by federal and state securities laws and as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
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conveyance or other laws of general application relating to or affecting
creditors' rights generally or the availability of equitable remedies,
regardless of whether such enforcement is considered in a proceeding in
equity or at law. The Indenture has been duly authorized and, when executed
and delivered by the Company and the Trustee, will constitute a valid and
binding agreement of the Company and will be enforceable against the
Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or other laws of general application relating to or affecting creditors'
rights generally or the availability of equitable remedies, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
The Registration Agreement (as defined in the Final Memorandum) has been
duly authorized and, when executed and delivered by the Company and the
Initial Purchasers, will constitute a valid and binding agreement of the
Company and will be enforceable against the Company in accordance with its
terms, except as rights to indemnity and contribution thereunder may be
limited by federal and state securities laws and as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or other laws of general application relating to or affecting creditors'
rights generally or the availability of equitable remedies, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
The performance by the Company of its obligations under this Agreement, the
Indenture, the Registration Agreement and the Securities and the
consummation by it of the transactions contemplated hereby and thereby will
not result in the creation or imposition of any lien, charge or encumbrance
upon any of the assets of the Company or any of its subsidiaries pursuant
to the terms or provisions of, or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or give any
other party a right to terminate any of its obligations under, or result in
the acceleration of any obligation under, the certificate or articles of
incorporation, bylaws or other organizational documents of the Company or
any of its subsidiaries, any contract or other agreement to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries, or any of their respective properties is bound or
affected, or violate or conflict with any judgment, ruling, decree, order,
statute, rule or regulation of any court or other governmental agency or
body applicable to the business or properties of the Company or any of its
subsidiaries.
(d) No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated in this
Agreement, the Registration Agreement, the Indenture and the Securities,
except such as may be required (i) under state securities or blue sky laws
in connection with the purchase and sale of the Securities by the Initial
Purchasers and (ii) under the Securities Act, the Trust Indenture Act or
the rules of the National Association of Securities Dealers, Inc. in
connection with the registration of the Securities pursuant to the
Registration Agreement.
(e) Neither the Company, nor any of its Affiliates (as defined in Rule
501(b)
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of Regulation D under the Securities Act ("Regulation D")), nor any person
acting on its or their behalf has, directly or indirectly, made offers or
sales of any security, or solicited offers to buy any security, under
circumstances that would require the registration of the Securities under
the Securities Act.
(f) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States.
(g) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(h) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf has engaged in any directed selling efforts
with respect to the Securities, and each of them has complied with the
offering restrictions requirement of Regulation S ("Regulation S") under
the Securities Act. Terms used in this paragraph have the meanings given
to them by Regulation S.
(i) The Company has been advised by the National Association of
Securities Dealers, Inc. PORTAL Market that the Securities have been
designated PORTAL eligible securities in accordance with the rules and
regulations of the National Association of Securities Dealers, Inc.
(j) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "Investment Company
Act"), without taking account of any exemption arising out of the number of
holders of the Company's securities.
(k) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
(l) The Company has not paid or agreed to pay to any person any
compensation for soliciting another to purchase any Securities (except as
contemplated by this Agreement).
(m) The information provided by the Company pursuant to Section 5(h)
hereof will not, at the date thereof, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(n) The financial statements, and the related notes thereto, included
in the Final Memorandum present fairly the consolidated financial position
of the Company and
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its consolidated subsidiaries as of the dates indicated and the results of
their operations and changes in their consolidated cash flows for the
periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis. The other financial and statistical information and data
included in the Final Memorandum are, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements
and the books and records of the Company.
(o) Since the respective dates as of which information is given in the
Final Memorandum, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries, or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth, or contemplated in the Final Memorandum. Except as set
forth or contemplated in the Final Memorandum, neither the Company nor any
of its subsidiaries has entered into any transaction or agreement (whether
or not in the ordinary course of business) material to the Company and its
subsidiaries taken as a whole.
(p) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Final Memorandum, and has been
duly qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the general affairs,
business, prospects, management, financial position, stockholders' equity
or results of operations of Company and its subsidiaries, taken as a whole
(collectively, a "Material Adverse Effect").
(q) Each of the Company's subsidiaries has been duly incorporated and
is validly existing as a corporation under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Final Memorandum, and has been
duly qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a Material Adverse Effect. All the outstanding
shares of capital stock of each corporate subsidiary of the Company have
been duly authorized and validly issued, are fully-paid and non-assessable,
and, except as otherwise set forth in the Final Memorandum, are owned by
the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims.
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(r) The Company has an authorized capitalization as set forth in the
Final Memorandum and all of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued, are fully-paid and
non-assessable and are not subject to any preemptive or similar rights.
(s) Neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its respective certificate of incorporation or by-laws or
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a party or
by which it or any of them or any of their respective properties is bound,
except for violations and defaults which individually and in the aggregate
are not material to the Company and its subsidiaries taken as a whole.
(t) Other than as set forth or contemplated in the Final Memorandum,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Company, threatened against
or affecting the Company or any of its subsidiaries or any of their
respective properties or to which the Company or any of its subsidiaries is
or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject which, if determined adversely to the
Company or any of its subsidiaries could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and, to the best
of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(u) The Company and its subsidiaries have good and indefeasible title
in fee simple to all real property (other than oil and gas properties which
are covered in (v) below) and good title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and defects
except such as are described or referred to in the Final Memorandum or such
as do not materially affect the value of such property and do not interfere
with the use made or proposed to be made of such property by the Company
and its subsidiaries; and any property held under lease by the Company and
its subsidiaries are held by them under valid, existing and enforceable
leases with such exceptions as are not material and do not interfere with
the use made or proposed to be made of such property by the Company or its
subsidiaries.
(v) Each of the Company and its subsidiaries has good and defensible
title to its oil and gas properties, free and clear of all liens,
encumbrances, security interests, and claims, title investigation having
been carried out by or on behalf of such person in accordance with good
practice in the oil and gas industry in the areas in which the Company
operates except (i) as specified in the Final Memorandum; (ii) liens for
taxes not yet due; (iii) liens, claims and encumbrances under gas sales
contracts, operating agreements, unitization and pooling agreements and
such other agreements as are customarily found in connection with
comparable drilling and producing operations; and
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(iv) other liens, claims, encumbrances and title defects that are, singly
and in the aggregate, not material in amount and do not materially
interfere with the Company's or any of its subsidiaries' use or enjoyment
of their respective oil and gas properties.
(w) No relationship, direct or indirect, exists between or among the
Company or any or its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which would be required to be described in
the reports of the Company filed with the Commission under the Exchange Act
which is not described in the Final Memorandum or in a report filed with
the Commission.
(x) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act.
(y) The Company and its subsidiaries have filed all federal, state,
local and foreign tax returns which have been required to be filed and have
paid all taxes shown thereon and all assessments received by them or any of
them to the extent that such taxes have become due and are not being
contested in good faith; and, except as disclosed in the Final Memorandum,
there is no tax deficiency which has been or might reasonably be expected
to be asserted or threatened against the Company or any subsidiary.
(z) Each of the Company and its subsidiaries owns, possesses or has
obtained all material licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations and
filings with, all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory organizations
and all courts and other tribunals, domestic or foreign, necessary to own
or lease, as the case may be, and to operate its properties and to carry on
its business as conducted as of the date hereof, and neither the Company
nor any such subsidiary has received any actual notice of any proceeding
relating to revocation or modification of any such license, permit,
certificate, consent, order, approval or other authorization, except as
described in the Final Memorandum. Each of the Company and its
subsidiaries is in compliance with all laws and regulations relating to the
conduct of its business as conducted as of the date hereof, except where
noncompliance with such laws and regulations would not have a Material
Adverse Effect.
(aa) There are no existing or, to the best knowledge of the Company,
threatened labor disputes with the employees of the Company or any of its
subsidiaries which are likely to have a Material Adverse Effect.
(bb) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes,
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pollutants or contaminants ("Environmental Laws"), (ii) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except as described in the Final Memorandum or where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a Material Adverse Effect.
(cc) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or
in the aggregate, have a Material Adverse Effect.
(dd) Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended, ("ERISA")
that is maintained, administered or contributed to by the Company or any of
its affiliates for employees or former employees of the Company and its
affiliates has been maintained in compliance with its terms and the
requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986,
as amended, ("Code"). No prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code has occurred with respect
to any such plan excluding transactions effected pursuant to a statutory or
administrative exemption. For each such plan which is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA no
"accumulated funding deficiency" as defined in Section 412 of the Code has
been incurred, whether or not waived, and the fair market value of the
assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeded the present value of all benefits accrued under
such plan determined using reasonable actuarial assumptions.
(ee) The Company maintains a system of internal accounting control
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
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(ff) The Company maintains insurance policies currently in effect,
including levels of deductibles, that are customary in the oil and gas
industry. Such policies provide coverage for operations of the Company and
its subsidiaries in amounts and covering such risks as the Company believes
is necessary to conduct its business.
(gg) Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any subsidiary
has made any payment of funds of the Company or any subsidiary or received
or retained any funds in violation of any law, rule or regulation.
(hh) Except as described in the Final Memorandum, as of the date
hereof, (i) all royalties, rentals, deposits and other amounts due on the
oil and gas properties of the Company have been properly and timely paid,
and no proceeds from the sale or production attributable to the oil and gas
properties of the Company are currently being held in suspense by any
purchaser thereof, except where such amounts due could not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and (ii) there are no claims under take-or-
pay contracts pursuant to which natural gas purchasers have any make-up
rights affecting the interests of the Company in its oil and gas
properties, except where such claims could not, singly or in the aggregate,
have a Material Adverse Effect.
(ii) Except as described in the Final Memorandum, as of the date
hereof, the aggregate undiscounted monetary liability of the Company for
petroleum taken or received under any operating or gas balancing and
storage agreement relating to its oil and gas properties that permits any
person to receive any portion of the interest of the Company in any
petroleum or to receive cash or other payments to balance any
disproportionate allocation of petroleum could not, singly or in the
aggregate, have a Material Adverse Effect.
(jj) Neither the Company nor any subsidiary of the Company is a
"holding company" or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company," or a "public utility" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Initial Purchaser, and each Initial Purchaser agrees, severally and
not jointly, to purchase from the Company, at a purchase price of 97.625% of the
principal amount thereof, plus accrued interest, if any, from June 8, 1998 to
the Closing Date, the principal amount of Securities set forth opposite such
Initial Purchaser's name in Schedule I hereto.
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3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at 10:00 AM, New York City time, on June 8, 1998, which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). The Securities to be
purchased by the Initial Purchasers hereunder will be represented by one or more
definitive global Securities in book-entry form which will be deposited by or on
behalf of the Company with The Depository Trust Company ("DTC") or its
designated custodian. The Company will deliver each of the global Securities to
Salomon Brothers Inc for the account of each Initial Purchaser, against payment
by or on behalf of such Initial Purchaser of the purchase price therefor to the
Company by wire transfer of same day funds to a bank account designated by the
Company, by causing DTC to credit the Securities to the account of Salomon
Brothers Inc at DTC.
Such Securities, if any, as the Representatives may request upon at least
48 hours' prior notice to the Company (such request to include the authorized
denominations and the names in which they are to be registered), shall be
delivered in definitive certificated form, by or on behalf of the Company to the
Representatives for the account of certain of the Initial Purchasers, against
payment by or on behalf of such Initial Purchasers of the purchase price
therefor to the Company by wire transfer of same day funds to a bank account
designated by the Company. The Company agrees to have the Securities available
for inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 PM on the business day prior to the Closing Date.
The closing of the purchase and sale of the Securities shall be held at the
office of Xxxxxx & Xxxxxx, L.L.P. ("Counsel for the Company"), 0000 Xxxxxxxxx,
Xxxxxxx, Xxxxx.
4. Offering of Securities. Each Initial Purchaser, severally and not
jointly, represents and warrants to and agrees, with the Company that:
(a) It is a qualified institutional buyer (as defined in Rule 144A
under the Securities Act) or an institutional accredited investor (within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act).
(b) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Securities Act) and
that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is aware
that such sale is being made in reliance on Rule 144A or (ii) in accordance
with the restrictions set forth in Exhibit A hereto.
(c) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Securities in the United States by means of any
form of general solicitation
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or general advertising (within the meaning of Regulation D) in the United
States.
5. Agreements. The Company agrees with each Initial Purchaser that:
(a) The Company will furnish to each Initial Purchaser and to Xxxxxx &
Xxxxxx L.L.P. ("Counsel for the Initial Purchasers"), without charge,
during the period referred to in paragraph (c) below, as many copies of the
Final Memorandum and any amendments and supplements thereto as it may
reasonably request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(b) The Company will not amend or supplement the Final Memorandum
without the prior written consent of the Representatives.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the
Representatives), any event occurs as a result of which the Final
Memorandum, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it should be necessary to amend
or supplement the Final Memorandum to comply with applicable law, the
Company will promptly notify the Representatives of the same and, subject
to the requirements of paragraph (b) of this Section 5, will prepare and
provide to the Representatives pursuant to paragraph (a) of this Section 5
an amendment or supplement which will correct such statement or omission or
effect such compliance.
(d) The Company will use its reasonable best efforts to arrange for
the qualification of the Securities for sale by the Initial Purchasers
under the laws of such jurisdictions as the Initial Purchasers may
designate and will maintain such qualifications in effect so long as
required for the sale of the Securities; provided, that the Company will
not be obligated to file any general consent to service of process or
qualify as a foreign corporation or as a dealer in securities in any U.S.
jurisdiction in which it is not so qualified or subject itself to taxation
in respect of doing business in any jurisdiction in which it is not
otherwise subject. 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 Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(e) The Company will not, and will not permit any of its Affiliates
to, resell any Securities that have been acquired by any of them.
(f) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf will, directly or indirectly, make offers or
sales of any security, or solicit offers to buy any security, under
circumstances that would require the registration of the Securities under
the Securities Act.
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(g) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144 (a) (3) under the Securities Act, the
Company will, during any period in which it is not subject to and in
compliance with Section 13 or 15(d) of the Exchange Act, provide to each
holder of such restricted securities and to each prospective purchaser (as
designated by such holder) of such restricted securities, upon the request
of such holder or prospective purchaser, any information required to be
provided by Rule 144A (d) (4) under the Securities Act. This covenant is
intended to be for the benefit of the holders, and the prospective
purchasers designated by such holders, from time to time of such restricted
securities.
(i) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf will engage in any directed selling efforts
with respect to the Securities, and each of them will comply with the
offering restrictions requirement of Regulation S. Terms used in this
paragraph have the meanings given to them by Regulation S.
(j) The Company will cooperate with the Representatives and use its
reasonable best efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company.
(k) During the period of five years hereafter, the Company will
furnish to the Representatives and upon request, to each of the other
Initial Purchasers, as soon as practicable after it is sent to security
holders, a copy of its annual report to stockholders for such year, and the
Company will furnish to the Representatives (i) as soon as practicable
after filing or mailing, a copy of each report or definitive proxy
statement of the Company filed with the Commission under the Exchange Act
or mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as the Representatives may reasonably
request.
6. Conditions to the Obligations of the Initial Purchasers. The
obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein at the date and time that this Agreement is executed
and delivered by the parties hereto (the "Execution Time"), and the Closing
Date, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
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(a) The Company shall have furnished to the Representatives the
opinion of Counsel for the Company, dated the Closing Date, 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 Delaware
with corporate power and authority to own, lease and operate its
assets and conduct its business as described in the Final Memorandum,
and the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which the
nature of its activities requires such qualification, except where
such failure to be in good standing would not have a Material Adverse
Effect.
(ii) Each of the subsidiaries of the Company 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 assets and conduct
its business as described in the Final Memorandum, and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the nature of its activities
requires such qualification, except where such failure to be in good
standing would not have a Material Adverse Effect.
(iii) All the outstanding shares of capital stock of the Company
and each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Final Memorandum, all outstanding
shares of capital stock of the subsidiaries of the Company are owned,
directly or indirectly, by the Company free and clear of any security
interest and, to the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or encumbrances.
(iv) The Company's authorized equity capitalization is as set
forth in the Final Memorandum.
(v) The Company has full corporate power and authority to enter
into each of this Agreement, the Registration Agreement and the
Indenture and each of this Agreement, the Registration Agreement and
the Indenture has been duly authorized, executed and delivered by the
Company (and assuming it has been duly authorized, executed and
delivered by the Trustee), is a valid and binding obligation of the
Company and is enforceable against the Company in accordance with the
terms thereof, except as rights to indemnity and contribution
thereunder may be limited by federal and state securities laws and as
may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other laws of general application relating to
or affecting creditors' rights generally or the availability of
equitable remedies.
-13-
(vi) The Securities have been duly and validly authorized and,
when issued, delivered and sold and authenticated by the Trustee, in
accordance with this Agreement and the Indenture, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms and entitled to the
benefits provided by the Indenture, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws of general application relating to or
affecting creditors' rights generally or the availability of equitable
remedies.
(vii) The statements set forth in the Final Memorandum under the
headings "Business and Properties--Legal Proceedings," "Description of
Existing Indebtedness" and "Description of the Notes" provide a fair
summary of the legal matters, documents and proceedings described
therein in all material respects.
(viii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated herein and in the Registration Agreement,
the Indenture and the Securities, except such as may be required (i)
under the blue sky or securities laws of any jurisdiction in
connection with the purchase and sale of the Securities by the Initial
Purchasers, (ii) under the Securities Act, the Trust Indenture Act or
the rules of the National Association of Securities Dealers, Inc. in
connection with the registration of the Securities pursuant to the
Registration Agreement and (iii) such other approvals (specified in
such opinion) as have been obtained.
(ix) The execution and delivery of this Agreement, the
Registration Agreement, the Securities and the Indenture and the
consummation of the transactions contemplated herein and therein will
not (i) to the best of such counsel's knowledge, conflict with or
constitute a breach of, or default under, or result in the creation of
any lien, charge or encumbrance on any property, or assets of the
Company or any of its subsidiaries pursuant to any material 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 the property or assets of
the Company or any of its subsidiaries is subject, or (ii) result in a
violation of the provisions of the charter or bylaws of the Company
or, to the best of such counsel's knowledge, any law, administrative
regulation or administrative court decree.
(x) Except as set forth or contemplated in the Final Memorandum,
to the best of such counsel's knowledge, there are no legal or
governmental investigations, actions, suits or proceedings pending or
threatened against or affecting the Company or any of its subsidiaries
or any of their respective properties or to which the Company or any
of its subsidiaries is or may be a party
-14-
or to which any property of the Company or its subsidiaries is or may
be the subject which, if determined adversely to the Company or any of
its subsidiaries, could individually or in the aggregate reasonably be
expected to have a material adverse effect on the general affairs,
business, prospects, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole.
(xi) Assuming the accuracy of the representations and warranties
and compliance with the agreements contained herein, no registration
of the Securities under the Securities Act is required, and no
qualification of the Indenture under the Trust Indenture Act of 1939
is necessary, for the offer and sale by the Initial Purchasers of the
Securities in the manner contemplated by this Agreement.
(xii) The Company is not an "investment company" within the
meaning of the Investment Company Act without taking account of any
exemption arising out of the number of holders of the Company's
securities.
(xiii) Such counsel believes that (other than the financial
statements and other financial and statistical and reserve data
included therein as to which such counsel expresses no opinion) the
Final Memorandum, at the Execution Time, did not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and that the Final Memorandum, at the Closing
Date, does not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York, the State of Delaware or the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to Counsel for the Initial Purchasers and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials.
All references in this Section 6(a) to the Final Memorandum shall be
deemed to include any amendment or supplement thereto at the Closing Date.
(b) The Representatives shall have received from Counsel for the
Initial Purchasers such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Final Memorandum
(as amended or supplemented at the Closing Date) and other related matters
as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
-15-
(c) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Final Memorandum, any amendment or supplement
to the Final Memorandum and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date,
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date; and
(ii) since the date of the most recent financial statements
included in the Final Memorandum, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated by the Final Memorandum (exclusive of any
amendment or supplement thereto).
(d) At the Execution Time and at the Closing Date, KPMG Peat Marwick
LLP shall have furnished to the Representatives a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Securities Act and the
Exchange Act and the applicable rules and regulations thereunder and Rule
101 of the Code of Professional Conduct of the American Institute of
Certified Public Accountants (the "AICPA") and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included in the Final Memorandum and
reported on by them comply in form in all material respects with the
applicable accounting requirements of the Exchange Act and the related
published rules and regulations thereunder;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review in accordance with the standards established by the
AICPA of the unaudited interim financial information as indicated in
their report included in the Final Memorandum; carrying out certain
specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth
in such letter; a reading of the minutes of the meetings of the
stockholders, directors and committees of the Company and its
-16-
subsidiaries; and inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events subsequent
to December 31, 1997, nothing came to their attention which caused
them to believe that:
(1) any unaudited financial statements included in the Final
Memorandum do not comply in form in all material respects with
applicable accounting requirements and with the published rules
and regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on Form
10-Q under the Exchange Act; and said unaudited financial
statements are not, in all material respects, in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included in the Final Memorandum; or
(2) with respect to the period subsequent to March 31, 1998,
there were any changes, at a specified date not more than five
business days prior to the date of the letter, in the long-term
debt of the Company and its subsidiaries or capital stock of the
Company or decreases in the stockholders' equity of the Company
or decreases in working capital of the Company and its
subsidiaries as compared with the amounts shown on the March 31,
1998 consolidated balance sheet included in the Final Memorandum,
or for the period from April 1, 1998 to such specified date there
were any decreases, as compared with the corresponding period in
the preceding year; in net revenues or income before income taxes
or in total or per share amounts of net income of the Company and
the Subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; or
(3) the information included under the headings "Offering
Memorandum Summary--Summary Consolidated Financial Data" and
"Selected Financial Data" is not in conformity with the
disclosure requirements of Regulation S-K.
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Final Memorandum agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of legal
interpretation.
-17-
KPMG Peat Marwick LLP shall have also furnished to the Representatives
a letter stating that the Company's system of internal accounting controls
taken as a whole is sufficient to meet the broad objectives of internal
accounting control insofar as those objective pertain to the prevention of
detection of errors or irregularities in amounts that would be material in
relation to the financial statements of the Company and the Subsidiaries.
All references in this Section 6(d) to the Final Memorandum shall be
deemed to include any amendment or supplement thereto at the date of the
letter.
(e) At the Execution Time and at the Closing Date, each of Xxxxx Xxxxx
Company, Xxxxxx and Xxxxx, Ltd., X.X. Xxxxxxxx and Associates, Inc., DOR
Engineering, Inc., X.X. Xxxxx & Company, Inc. and POCO Oil Co. shall have
furnished to the Representatives a letter or letters dated respectively as
of the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, each stating, as of the date of such
letter (or, with respect to matters involving changes or developments since
the respective dates as of which specified information with respect to the
oil and gas reserves is given in the Final Memorandum as of the date not
more than five days prior to the date of such letter), the conclusions and
findings of such firm with respect to the oil and gas reserves of the
Company.
All references in the Section 6(e) to the Final Memorandum shall be
deemed to include any amendment or supplement thereto at the date of the
letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Final Memorandum, there shall not have
been (i) any change or decrease specified in the letter or letters referred
to in paragraph (d) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to market the Securities as contemplated by the Final
Memorandum.
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act) or any notice given of
any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
-18-
(h) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and Counsel for the Initial Purchasers,
this Agreement and all obligations of the Initial Purchasers hereunder may be
canceled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 6 will be delivered
at the office of Counsel for the Company, at 0000 Xxxxxxxxx, Xxxxxxx, Xxxxx, on
the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities provided for
herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Initial Purchasers in payment for the Securities on the Closing Date, the
Company will reimburse the Initial Purchasers severally upon demand for all out-
of-pocket expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed purchase and
sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Initial Purchaser, the directors, officers, employees and
agents of each Initial Purchaser and each person who controls any Initial
Purchaser within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Preliminary
Memorandum, the Final Memorandum or any information provided by the Company to
any holder or prospective purchaser of Securities pursuant to Section 5(h), or
in any amendment thereof 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, in the light
of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will 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 any such untrue
statement or alleged untrue statement or omission or alleged
-19-
omission made in the Preliminary Memorandum or the Final Memorandum, or in any
amendment thereof or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any Initial
Purchasers through the Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Initial Purchaser severally agrees to indemnify and hold harmless
the Company, its directors, its officers, and each person who controls the
Company within the meaning of either the Securities Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each Initial
Purchaser, but only with reference to written information relating to such
Initial Purchaser furnished to the Company by or on behalf of such Initial
Purchaser through the Representatives specifically for inclusion in the
Preliminary Memorandum or the Final Memorandum (or in any amendment or
supplement thereto). This indemnity agreement will be in addition to any
liability which any Initial Purchaser may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page and under the heading "Plan of Distribution" in the Preliminary Memorandum
and the Final Memorandum constitute the only information furnished in writing by
or on behalf of the Initial Purchasers for inclusion in the Preliminary
Memorandum or the Final Memorandum (or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the
-20-
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnifying party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Initial Purchasers agree to contribute
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Initial
Purchasers may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company and by the Initial Purchasers from the
offering of the Securities; provided, however, that in no case shall any Initial
Purchaser (except as may be provided in any agreement among the Initial
Purchasers relating to the offering of the Securities) be responsible for any
amount in excess of the purchase discount or commission applicable to the
Securities purchased by such Initial Purchaser hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Initial Purchasers shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and of the Initial Purchasers in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses), and benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions received by the Initial
Purchasers from the Company in connection with the purchase of the Securities
hereunder. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
Company or the Initial Purchasers. The Company and the Initial Purchasers agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Initial Purchaser within the meaning of either the Securities Act or the
Exchange Act and each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as such Initial Purchaser,
and each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act and each officer and director of the Company
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
-21-
9. Default of an Initial Purchaser. If any one or more Initial Purchasers
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Initial Purchasers) the Securities which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Securities
which the defaulting Initial Purchaser or Initial Purchasers agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Securities set
forth in Schedule I hereto, the remaining Initial Purchasers shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the Securities, and if such non-defaulting Initial Purchasers do not purchase
all the Securities, this Agreement will terminate without liability to any non-
defaulting Initial Purchaser or the Company. In the event of a default by any
Initial Purchaser as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Final Memorandum or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Initial Purchaser of its liability, if
any, to the Company or any non-defaulting Initial Purchaser for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in any of the Company's securities shall have been suspended by the Commission
or the New York Stock Exchange or trading in securities generally on the New
York Stock Exchange shall have been suspended or limited or minimum prices shall
have been established on such exchange, (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities or (iii) there
shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the judgment of
the Representatives, impracticable or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the Final Memorandum.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Initial Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Initial Purchasers or the Company
or any of the officers, directors or controlling persons referred to in Section
8 hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
-22-
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, care of Salomon Brothers Inc, at
Xxxxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at 0000 Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000, attention: Chief Financial Officer.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and,
except as expressly set forth in Section 5(h) hereof, no other person will have
any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
15. Business Day. For purposes of this Agreement, "business day" means
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in The City of New York, New York are authorized or
obligated by law, executive order or regulation to close.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
-23-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
Agreement and your acceptance shall represent a binding agreement between the
Company and the Initial Purchasers.
Very truly yours,
Nuevo Energy Company
By: /s/ NUEVO ENERGY COMPANY
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
Salomon Brothers Inc
X.X. Xxxxxx Securities Inc.
NationsBanc Xxxxxxxxxx Securities LLC
By: Salomon Brothers Inc
By: /s/ SALOMON BROTHERS INC
For themselves and the other Initial Purchasers
named in Schedule I to the foregoing Agreement
-24-
SCHEDULE I
----------------------
Initial Purchasers Principal Amount of
------------------ Securities
to be Purchased
Salomon Brothers Inc.......................... $ 55,000,000
X.X. Xxxxxx Securities Inc.................... 22,500,000
NationsBanc Xxxxxxxxxx Securities LLC......... 22,500,000
----------------------
Total.......................... $100,000,000
-25-
EXHIBIT A
Selling Restrictions for Offers and
Sales outside the United States
(1)(a) The Securities have not been and will not be registered under the
Securities Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except in accordance with Regulation
S under the Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act. Each Initial Purchaser represents and
agrees that, except as otherwise permitted by Section 4(a)(i) of the Agreement
to which this is an exhibit, it has offered and sold the Securities, and will
offer and sell the Securities, (i) as part of their distribution at any time and
(ii) otherwise until 40 days after the later of the commencement of the offering
and the Closing Date, only in accordance with Rule 903 of Regulation S under the
Securities Act. Accordingly, each Initial Purchaser represents and agrees that
neither it, nor any of its affiliates nor any person acting on its or their
behalf has engaged or will engage in any directed selling efforts with respect
to the Securities, and that it and they have complied and will comply with the
offering restrictions requirement of Regulation S. Each Initial Purchaser
agrees that, at or prior to the confirmation of sale of Securities (other than a
sale of Securities pursuant to Section 4(a)(i) of the Agreement to which this is
an exhibit), it shall have sent to each distributor, dealer or person receiving
a selling concession, fee or other remuneration that purchases Securities from
it during the restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered or
sold within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and
specify closing date of the offering, except in either case in accordance
with Regulation S or Rule 144A under the Securities Act. Terms used above
have the meanings given to them by Regulation S."
(b) Each Initial Purchaser also represents and agrees that it has not
entered and will not enter into any contractual arrangement with any distributor
with respect to the distribution of the Securities, except with its affiliates
or with the prior written consent of the Company.
(c) Terms used in this section have the meanings given to them by
Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it has not
offered or sold, and will not offer or sell, any Offered Notes in the United
Kingdom by means of any document other than to persons whose ordinary business
is to buy, hold, manage or dispose of investments, whether as principal or
agent, for purposes of their businesses or otherwise in circumstances that do
not constitute an offer to the public in the United Kingdom within the meaning
of the Public
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Offers of Securities Regulations 1995, (ii) it has complied and will comply with
all applicable provisions of the Financial Services Xxx 0000 of the United
Kingdom with respect to anything done by it in relation to the Offered Notes in,
from or otherwise involving the United Kingdom and (iii) it has only issued or
passed on and will only issue or pass on, to any person in the United Kingdom,
any document received by them in connection with the issue of the Offered Notes,
if that person is of a kind described in Article 11 (3) of the Financial
Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 or is a
person to whom the document may otherwise lawfully be issued or passed on.
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