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EXHIBIT 1.2
TERMS AGREEMENT
Convertible Preferred Stock
May 12, 1999
Apache Corporation
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and Treasurer
Dear Sirs:
The undersigned underwriter (the "Underwriter") understands that
Apache Corporation (the "Company") proposes to issue and sell 7,000,000 shares
of its depositary shares, each representing 1/50th of a share of its
Automatically Convertible Equity Securities, Conversion Preferred Stock, Series
C, no par value, convertible into common stock, $1.25 par value per share and
related rights to purchase common stock (the "Offered Securities"). Subject to
the terms and conditions set forth herein or incorporated by reference herein,
the Underwriter offers to purchase 7,000,000 Offered Securities at $31 per
depositary share.
The Offered Securities shall have the following terms:
Title of the Offered Securities: $2.015 Depositary Shares, each depositary
share represents 1/50th of a share of
Automatically Convertible Equity
Securities, Conversion Preferred Stock,
Series C
Number of Firm Securities to be issued: 7,000,000
Maximum number of Option Securities to be issued: N/A
Current ratings: ▇▇▇▇▇'▇ Investors Service, Inc. (baa2)
Standard & Poor's Ratings Services (BBB-)
Dividend rate: $100.75 per annum per share of Conversion Preferred Stock,
Series C ($2.015 per annum per Depositary Share)
Dividend payment dates: 15th calendar day (or the preceding business day if
the 15th is not a business day) of each of August,
November, February and May, beginning August 13, 1999
Redemption provisions: None
Conversion provisions: As set forth in the Certificate of Designations,
Preferences and Rights for the Series C
Initial price to public: $31 per Depositary Share
Underwriting commission: $0.93 per Depositary Share
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Purchase price: $30.07 per Depositary Share
Closing Time: May 18, 1999
Place of delivery and payment: ▇▇▇▇▇ & ▇▇▇▇ LLP
One World Trade Center
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Company account for wire transfer of payment: US Bank
Minneapolis, Minnesota
Account No. 150250089953
ABA No. ▇▇▇▇▇▇▇▇▇
Lock-up pursuant to Section 3(j) of the
Underwriting Agreement Basic Terms: yes
Lock-up pursuant to Section 4(e) of the
Underwriting Agreement Basic Terms: yes
Note: If yes, see Schedule A hereto.
Securities exchanges, if any, on which application will be made to list the
Offered Securities: NYSE
Other terms, if any: Underwriter agrees to pay the legal fees and expenses of
its counsel.
At the Closing Time, the Underwriter will pay the Company by wire
transfer to the account specified above $210,490,000.
All the provisions contained in "Apache Corporation-Convertible
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.
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Any notice by the Company to the Underwriter pursuant to this Terms
Agreement shall be sufficient if given in accordance with Section 11 of the
Basic Terms addressed to: ▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President, which shall, for all purposes
of this Agreement, be the "Representative".
Very truly yours,
▇▇▇▇▇▇▇, SACHS & CO.
____________________________
(By ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
Accepted:
APACHE CORPORATION
By: _______________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
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Annex A
[Basic Terms for
Conversion Preferred Stock]
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Schedule A
List of person subject to lock-up
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A.D. ▇▇▇▇▇▇▇, Jr.
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APACHE CORPORATION
CONVERTIBLE PREFERRED STOCK
UNDERWRITING AGREEMENT BASIC TERMS
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APACHE CORPORATION
Convertible 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,
convertible into common stock, $1.25 par value per share (the "Common Stock")
and related preferred stock purchase rights (the "Rights") (the "Convertible
Preferred Stock"). Each issue of Convertible Preferred Stock may vary as to
number of shares, liquidation values, dividend rate or rates and timing of
payments thereof, redemption provisions, if any, convertible provisions and any
other variable terms as set forth in the Terms Agreement (as defined below)
relating thereto. The Convertible 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, N.A. (the
"Depositary"), and all holders from time to time of receipts issued thereunder.
Whenever the Company determines to make an offering of the Convertible
Preferred Stock, the Depositary Shares, if any, and the Common Stock and the
related Rights into which the Convertible Preferred Stock is convertible, 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
Convertible Preferred Stock or Depositary Shares, as the case may be, 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.
333-75633) for the registration of 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, 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 results of operations, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise.
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(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) The Company meets the requirements for use of Form S-3
under the 1933 Act. Each of the Registration Statement and any
Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the
Commission for additional information has been complied with.
(d) There are no contracts, agreements or understandings
between the Company or any of its subsidiaries, on the one
hand, and any person, on the other hand, granting such person
the right to require the Company or any of its subsidiaries to
file a registration statement under the 1933 Act with respect
to any securities (other than contractual obligations by the
Company to file registration statements on Form S-8 covering
issuances of Common Stock pursuant to its employee or director
stock, bonus or compensation plans) or to require the Company
or any of its subsidiaries to include such securities in any
registration statement filed by the Company under the 1933 Act
or in any public offering of securities.
(e) 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
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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.
(f) 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 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.
(g) 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.
(h) 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 Prospectus 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.
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(i) 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.
(j) This Agreement has been duly authorized, executed and
delivered by the Company and, upon execution and delivery by
the Underwriters, will be a valid and legally binding
agreement of the Company.
(k) If 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.
(l) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus (except for
issuances, if any, described in the Prospectus, pursuant to
this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options
referred to in the Prospectus); the shares of issued and
outstanding capital stock set forth therein have been duly
authorized and validly issued and are fully paid and
non-assessable; and the Offered Securities conform to all
statements relating thereto contained in the Prospectus and
such statements conform to the provisions of the instruments
defining the same.
(m) The Convertible Preferred Stock has been duly and validly
authorized for issuance, offer and sale pursuant to this
Agreement, the Deposit Agreement, if any, and the applicable
Terms Agreement; the Convertible Preferred Stock when issued
and delivered against payment therefor as provided for in this
Agreement, the Deposit Agreement, if any, and the applicable
Terms Agreement, will be validly issued, fully paid and
non-assessable; the Depository Shares, if any, when issued and
delivered against payment therefor as provided for in this
Agreement, the Deposit Agreement, if any, and the applicable
Terms Agreement, will be validly issued by the Depositary; and
the holders of the Depositary Shares, if any, will be entitled
to the rights specified in the Depositary Receipts and in the
Deposit Agreement (subject, in the case of the Deposit
Agreement, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles); the Convertible Preferred Stock comprising
the Offered Securities is convertible into shares of Common
Stock in accordance with the terms of the Convertible
Preferred Stock; the shares of Common Stock initially issuable
upon conversion of the Convertible Preferred Stock comprising
the Offered Securities have been duly and validly reserved for
issuance, and when issued and delivered pursuant to the terms
of the Convertible Preferred Stock, will be validly issued,
fully paid and non-assessable; the Rights have been duly and
validly authorized
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for issuance by the Company in accordance with the Rights
Agreement, dated as of January 31, 1996, between the Company
and Norwest Bank Minnesota, N.A.; and the issuance of the
Offered Securities will not be subject to any preemptive or
similar rights.
(n) 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, and (3) except for regular dividends on
the Common Stock and the Company's preferred stock, there has
been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(o) 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 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.
(p) No consent, approval, authorization, order, decree,
registration or qualification of or with 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
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such as have been obtained or rendered, as the case may be, or
as may be required under state securities or Blue Sky laws.
(q) 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.
(r) 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.
(s) 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 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.
(t) 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
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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.
(u) 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.
(v) 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.
(w) 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").
(x) 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.
(y) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or
any of its subsidiaries has a material relationship to
evaluate the extent to which the business or operations of the
Company or any of its subsidiaries will be affected by the
Year 2000 Problem. As a result of such review, the Company has
no reason to believe, and does not
9
15
believe, that the Year 2000 Problem will 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 or result in any material loss or interference
with the Company's business or operations. The "Year 2000
Problem" as used herein means any significant risk that
computer hardware or software used in the receipt,
transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the
operation of mechanical or electrical systems of any kind will
not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1,
2000.
(z) 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.
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(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 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 and the
Option Securities, if any, 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 the Firm Securities, the names
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of the Underwriters and the number of the Offered Securities
which each severally and not jointly has agreed to purchase,
the price per share 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, 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) The Company will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so
as to permit the completion of the distribution of the Offered
Securities as contemplated in this Agreement and in the
Prospectus. If, at any time when a 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 the 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 Convertible
Preferred Stock, Common Stock and Depositary Shares, if any,
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
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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) 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) Prior to 10:00 A.M, New York City time, on the business
day next succeeding the date of this Agreement and from time
to time, 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 has delivered to each Underwriter, without
charge, as many copies of each preliminary Prospectus
Supplement as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act.
(h) 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
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19
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.
(i) 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 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.
(j) If specified in the Terms Agreement, during the 90-day
period following the date of the Terms Agreement, the Company
will not, without the prior written consent of the
Representatives, (i) directly or indirectly, issue, offer,
pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or
dispose of any share of Convertible Preferred Stock, Common
Stock or any Depositary Share or any securities convertible
into or exercisable or exchangeable for Convertible Preferred
Stock, Common Stock or Depositary Shares or any such
substantially similar securities or file any registration
statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement
or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership
of Convertible Preferred Stock, Common Stock or Depositary
Shares, whether any such swap or transaction described in
clause (i) or (ii) above is to be settled by delivery of
Convertible Preferred Stock, Common Stock or Depositary Shares
or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Offered Securities, (B)
any shares of Convertible Preferred Stock or Common Stock or
Depositary Shares issued by the Company upon the exercise of
an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the
Prospectus, (C) any shares of Convertible Preferred Stock or
Common Stock or Depositary Shares issued or options to
purchase Common Stock granted pursuant to existing employee
benefit plans of the Company referred to in the Prospectus,
(D) any shares of Convertible Preferred Stock or Common Stock
or Depositary Shares issued pursuant to any non-employee
director stock plan or dividend reinvestment plan, (E) any
shares of Convertible Preferred Stock or Common Stock or
Depositary Shares issued pursuant to the Company's existing
dividend reinvestment program, (F) the Common Stock, if any,
that is the subject of a concurrent public offering, or (G)
any shares of
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20
Common Stock issuable in connection with any asset purchase or
other transaction described in the Prospectus.
(k) The Company will reserve and keep available at all times,
free of preemptive rights, shares of Common Stock for the
purpose of enabling the Company to satisfy any obligations to
issue shares of its Common Stock upon conversion of the
Convertible Preferred Stock.
(l) The Company will use its best efforts to list, subject to
notice of issuance, the Offered Securities, including the
Common Stock issuable upon conversion of the Convertible
Preferred Stock on the New York Stock Exchange.
(m) The Company will use the net proceeds received by it from
the sale of the Offered Securities in the manner specified in
the Prospectus under "Use of Proceeds".
(n) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) and the Company
shall at the time of filing either pay the Commission a filing
fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the 1933 Act.
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) The Registration Statement and any Rule 462(b)
Registration Statement have become effective and, 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
and any request on the part of the Commission for additional
information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed
with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have
been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to
rely upon Rule 434, a term sheet shall have been filed with
the Commission in accordance with Rule 424(b).
(b) At the Closing Time, the Representatives shall have
received:
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(1) The favorable opinion, dated as of the Closing
Time, of Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel to the
Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) This Agreement and the Terms Agreement have been
duly authorized, executed and delivered by the Company.
(iii) The Convertible Preferred Stock has been duly
and validly authorized for issuance, offer and sale pursuant
to this Agreement, the Deposit Agreement, if any, and the
applicable Terms Agreement; the Convertible Preferred Stock,
when issued and delivered against payment therefor as provided
for in this Agreement, the Deposit Agreement, if any, and the
applicable Terms Agreement, will be validly issued, fully paid
and non-assessable; the Depositary Shares, if any, when issued
and delivered against payment therefor as provided for in this
Agreement, the Deposit Agreement, if any, and the applicable
Terms Agreement, will be validly issued by the Depositary; and
the holders of the Depositary Shares, if any, will be entitled
to the rights specified in the Depositary Receipts and in the
Deposit Agreement (subject, in the case of the Deposit
Agreement, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles); the Convertible Preferred Stock comprising
the Offered Securities is convertible into shares of Common
Stock in accordance with the terms of the Convertible
Preferred Stock; the shares of Common Stock initially issuable
upon conversion of the Convertible Preferred Stock comprising
the Offered Securities have been duly and validly reserved for
issuance, and when issued and delivered pursuant to the terms
of the Convertible Preferred Stock, will be validly issued,
fully paid and non-assessable; the Rights have been duly and
validly authorized for issuance by the Company in accordance
with the Rights Agreement, dated as of January 31, 1996,
between the Company and Norwest Bank Minnesota, N.A.; and the
issuance of the 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 caption
"Description of Capital Stock" and in the Prospectus
Supplement under the headings "Description of Convertible
Preferred Stock", "Description of Depositary Shares" and
similar headings, insofar as they purport to summarize certain
provisions of instruments specifically referred to therein,
are fair and correct 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
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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 Company's certificate of incorporation
or by-laws, each as in effect at the applicable Closing Time,
of the Company.
(vii) If 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 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.
(ix) The information contained in the Prospectus
Supplement under the caption "Certain 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 (i)
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 and (ii) as to the laws of the State of New York
applicable to the enforceability of the Deposit Agreement,
upon the opinion of ▇▇▇▇▇ & Wood LLP. 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.
(2) The favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇,
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.
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(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) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus (except
for issuances, if any, described in the Prospectus, pursuant
to this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options
referred to in the Prospectus); the shares of issued and
outstanding capital stock set forth therein have been duly
authorized and validly issued and are fully paid and
non-assessable; and the Offered Securities conform to all
statements relating thereto contained in the Prospectus and
such statements conform to the provisions of the instruments
defining the same.
(v) The Convertible Preferred Stock has been duly and
validly authorized for issuance, offer and sale pursuant to
this Agreement, the Deposit Agreement, if any, and the
applicable Terms Agreement; the Convertible Preferred Stock,
when issued and delivered against payment therefor as provided
for in this Agreement, the Deposit Agreement, if any, and the
applicable Terms Agreement, will be validly issued, fully paid
and non-assessable; the Depositary Shares, if any, when issued
and delivered against payment therefor as provided for in this
Agreement, the Deposit Agreement, if any, and the applicable
Terms Agreement, will be validly issued by the Depositary; and
the holders of the Depositary Shares, if any, will be entitled
to the rights specified in the Depositary Receipts and in the
Deposit Agreement (subject, in the case of the Deposit
Agreement, as to enforcement, bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity
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principles); the Convertible Preferred Stock comprising the
Offered Securities is convertible into shares of Common Stock
in accordance with the terms of the Convertible Preferred
Stock; the shares of Common Stock initially issuable upon
conversion of the Convertible Preferred Stock comprising the
Offered Securities have been duly and validly reserved for
issuance, and when issued and delivered pursuant to the terms
of the Convertible Preferred Stock, will be validly issued,
fully paid and non-assessable; the Rights have been duly and
validly authorized for issuance by the Company in accordance
with the Rights Agreement, dated as of January 31, 1996,
between the Company and Norwest Bank Minnesota, N.A.; and the
issuance of the Offered Securities will not be subject to any
preemptive or similar rights.
(vi) If 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.
(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,
decree, registration or qualification of or with 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
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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 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.
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In rendering such opinion, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ 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, (ii) as
to matters of law governed by laws other than 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,
such opinions of counsel admitted to practice in the
applicable jurisdictions as ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ deems appropriate,
and (iii) as to matters related to the capital stock of the
Company and each of the Company's Significant Subsidiaries
issued prior to March 30, 1993, the opinion of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇▇, former Senior Vice President and General Counsel
of the Company, dated March 30, 1993, which certificates and
opinions 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 ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, with respect
to the matters set forth in clauses (i) to (v), inclusive, and (viii)
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 Section ▇, ▇▇▇▇▇, ▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇ 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, to the extent deemed appropriate, 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 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
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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 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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
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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 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.
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(2) At the Closing Time, the Underwriters shall have
received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 date of this Agreement, the Representatives shall
have received an agreement substantially in the form of
Exhibit B hereto signed by the persons, if any, listed on
Schedule A to the Terms Agreement.
(f) The Convertible Preferred Stock or, if applicable, the
Depositary Shares comprising the Offered Securities at the
Closing Time shall have been duly listed, subject to notice of
issuance, on the New York Stock Exchange.
(g) 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.
(h) 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 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 opinions of Mayor, Day, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, L.L.P., counsel for the Company, and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities and
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30
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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, reproduction and delivery to the
Underwriters of this Agreement; any Agreement among
Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or
delivery of the Offered Securities;
(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,
counsel and other advisors;
(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 each preliminary
Prospectus Supplement, the Prospectus and any amendments or
supplements thereto, and the delivery by the Underwriters of
the Prospectus and
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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 4, 9 or 10, 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, damage, joint or several, 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 preliminary Prospectus Supplement 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 Supplement or the
Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, damage, joint or several, 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
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32
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 Supplement 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 Supplement 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 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
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33
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 Supplement 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 ▇▇▇▇▇.
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 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
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34
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 ▇▇▇▇ ▇▇▇) 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
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
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35
which the Offered Securities are denominated or payable, or (iv) a downgrading
shall have occurred in the rating accorded to any debt securities or preferred
stock of the Company by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act or such organization shall have publicly announced
that it has under survellience or review, with possible negative implications,
its rating of any debt securities or preferred stock 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
(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.
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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, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Vice President and Treasurer, with a copy to: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. 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.
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
Convertible Preferred Stock
___________ __, 19__
Apache Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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 [depositary shares, representing the right to receive its shares of]
convertible preferred stock, no par value, convertible into common stock, $1.25
par value per share and related rights to purchase common stock (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 the Offered Securities:
Number of Firm Securities to be issued:
Maximum number of Option Securities to be issued:
Current ratings:
Dividend rate:
Dividend payment dates:
Redemption provisions, if any:
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38
Conversion provisions:
Initial price to public:
Underwriting commission:
Purchase price
Closing Time:
Place of delivery and payment:
Company account for wire transfer of payment:
Lock-up pursuant to Section 3(j) of the
Underwriting Agreement Basic Terms: [yes] [no]
Lock-up pursuant to Section 4(e) of the
Underwriting Agreement Basic Terms: [yes] [no]
Note: If yes, see Schedule A hereto.
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-Convertible
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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SCHEDULE A
List of Persons and Entities Subject to Lock-Up
A-3
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EXHIBIT B
[Form of Lock-Up from Directors, Officers or Other
Stockholders Pursuant to Section 4(e)]
[ ], 1999
[NAME OF LEAD UNDERWRITER]
[NAME(S) OF ANY CO-REPRESENTATIVE(S)]
as Representative(s) of the several
Underwriters to be named in the
within-mentioned Underwriting Agreement
Re: Proposed Public Offering by Apache Corporation
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director](1) of
Apache Corporation, a Delaware corporation (the "Company"), understands that
[name of lead underwriter][and [name(s) of co-representative(s), if any]]
propose(s) to enter into an Underwriting Agreement (the "Underwriting
Agreement") with the Company providing for the public offering of preferred
stock convertible into shares (the "Securities") of the Company's common stock,
par value $1.25 per share (the "Common Stock") and related rights to purchase
Common Stock. In recognition of the benefit that such an offering will confer
upon the undersigned as a stockholder [and an officer and/or director]1 of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the Underwriting Agreement that, during a period of
90 days from the date of the Underwriting Agreement, the undersigned will not,
without the prior written consent of [name of lead underwriter], directly or
indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, or otherwise dispose of or transfer any shares
of the Company's Common Stock or any securities convertible into or exchangeable
or exercisable for Common Stock or any such substantially similar securities,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
Very truly yours,
Signature:
-------------------------------
Print Name:
------------------------------
-----------------------------
(1) Delete or revise background language as appropriate.
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ANNEX A
[Apache Corporation--Convertible Preferred Stock--
Underwriting Agreement Basic Terms]
A-1
