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EXHIBIT 1.2
[Date]
ORYX ENERGY COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (EQUITY)
From time to time, Oryx Energy Company, a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that
provide for the issuance and sale of designated securities to the several
Underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company proposes to issue from time to time common stock and
preferred stock. Such equity securities will, if other than common stock, have
varying liquidation values, rates and times of payment of dividends, selling
prices, conversion terms (including whether they may be converted at the option
of the holder thereof into newly-issued shares (the "Conversion Shares") of the
Company's Common Stock, par value $1.00 per share), redemption terms and other
terms. Any such equity securities and any Conversion Shares are herein
sometimes collectively referred to as the "Securities".
The Company has filed with the Securities and Exchange Commission
(the "Commission"), in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (herein referred to
collectively as the "Act"), a registration statement including a prospectus
relating to the Securities and has filed or proposes to file with the
Commission a prospectus supplement or supplements specifically relating to the
Offered Securities pursuant to Rule 424 under the Act in the form furnished by
the Company to the Manager or Managers named in the Underwriting Agreement (the
"Manager") or, to the extent not completed at the time of execution of the
Underwriting Agreement, in such form as the Company and the Manager shall have
agreed to at such time. The term Registration Statement means the registration
statement as amended to the date of the Underwriting Agreement. The term Basic
Prospectus means the prospectus included in the Registration Statement. The
term Prospectus means the Basic Prospectus together with the prospectus
supplement (other than a preliminary prospectus supplement) specifically
relating to the Offered Securities in the form first used to confirm sales of
the Offered Securities. The term preliminary prospectus means a preliminary
prospectus supplement specifically relating to the Offered Securities, together
with the Basic Prospectus. As used herein, the terms "Registration Statement",
"Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include, in
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each case, the material, if any, incorporated by reference therein.
The Company and the Underwriters agree as follows:
1. Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective portions
of the Offered Securities as soon after this Agreement is entered into as in
the Manager's judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
2. Payment and Delivery. Payment for the Offered Securities shall
be made by certified or official bank check or by wire transfer payable to the
order of the Company in funds specified in the Underwriting Agreement at the
time and place set forth in the Underwriting Agreement, upon delivery to the
Manager for the respective accounts of the several Underwriters of the Offered
Securities registered in such names and in such denominations as the Manager
shall request not less than two full business days prior to the date of
delivery. The time and date of such payment and delivery with respect to the
Offered Securities are herein referred to as the Closing Date.
3. Certain Covenants of the Company. In further consideration
of the agreements of the Underwriters herein contained, the Company covenants
as follows:
(a) To furnish the Manager, without charge, two signed copies
of the Registration Statement (including exhibits thereto and documents
incorporated therein by reference), as many copies of the preliminary
prospectus as the Manager may reasonably request and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated therein by reference, and any supplements and
amendments thereto as the Manager may reasonably request and to pay all
reasonable costs associated therewith, including all printing and
mailing costs. The Company agrees to timely file the Prospectus pursuant
to Rule 424 and to provide the Manager with evidence of such filing. The
terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents subsequently filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are deemed to be incorporated by reference in
the Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish the Manager a copy of each such
proposed amendment or supplement and to file no such proposed amendment
or supplement to which the Manager reasonably objects in writing;
provided, that the foregoing shall not apply to amendments or
supplements that relate to securities registered under the Registration
Statement that are not Offered Securities.
(c) If, at any time when a Prospectus relating to the Offered
Securities is required by law to be delivered under the Act, any event
shall occur as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements
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therein, in light of the circumstances when the Prospectus is delivered
to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and
furnish to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Offered Securities
may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented
will not, in light of the circumstances when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus will comply with
law. The costs and expenses relating to any such amendment or supplement
shall be borne by the Company in the case of an amendment or supplement
within 9 months of the date of the Agreement and by the Underwriters
thereafter.
(d) The Company agrees to use its best efforts to prevent the
issuance of any stop order by the Commission and, if issued, to notify
you of the issuance thereof and to use its best efforts to obtain as
soon as possible the withdrawal thereof.
(e) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request and to take reasonable steps to comply with
such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be reasonably necessary to
complete the distribution of the Offered Securities, and to pay all
reasonable expenses (including fees and disbursements of counsel for the
Underwriters) in connection therewith as well as all fees, if any,
payable in connection with the review of the offering of the Offered
Securities by the National Association of Securities Dealers, Inc.
(f) To make generally available to the Company's security
holders as soon as practicable an earnings statement or statements of
the Company which shall satisfy the provisions of Section 11(a) of the
Act.
(g) That, without the prior written consent of the Manager, it
will not offer, sell, contract to sell or otherwise dispose of any
securities of the Company which are substantial similar to the
Securities or any securities convertible into or exercisable or
exchangeable for Common Stock during the Lock-Up Period specified in the
Underwriting Agreement, other than (i) the Offered Securities to be sold
hereunder; (ii) the Common Stock issuable upon conversion of the Offered
Securities or conversion of any other existing securities convertible
into Common Stock or upon exercise of any existing options to purchase
Common Stock; and (iii) options or shares of Common Stock sold or issued
pursuant to any existing employee benefit plan or arrangement of the
Company or any of its subsidiaries.
(h) To use its best efforts to obtain the listing of the
Offered Securities on any securities exchange or automated quotation
system on which the Company's equity securities of the same class as the
Offered Securities are listed and to pay all costs and expense
associated therewith.
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4. Reimbursement of Underwriters' Expenses. If this Agreement
shall be terminated by the Underwriters or any of them, because of any failure
or refusal on the part of the Company to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Company shall
be unable to perform its obligations under this Agreement, the Company will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement, with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel itemized in
detail reasonably satisfactory to the Company) reasonably incurred by such
Underwriters in connection with the Offered Securities.
5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase and pay for the Offered Securities
hereunder on the First Closing Date or the Option Closing Date, as the case may
be, are subject to the conditions:
(a) That, at such Closing Date, the Company shall have
furnished to the Manager an opinion of Xxxxxxx X. Xxxxxx, Vice
President, General Counsel and Secretary of the Company, dated the
Closing Date, in substantially the form set forth as Exhibit A.
(b) That, at such Closing Date, the Company shall have
furnished to the Manager an opinion of Akin, Gump, Strauss, Xxxxx &
Xxxx, L.L.P., special counsel for the Company, dated the Closing Date,
in substantially the form set forth as Exhibit B.
(c) That, at such Closing Date, the Manager shall have
received an opinion of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the
Underwriters, dated the Closing Date, in substantially the form set
forth as Exhibit C.
(d) That, at such Closing Date, the Company shall have
furnished to the Manager a letter addressed to the Underwriters and
dated such Closing Date, in form and substance satisfactory to the
Manager, from Coopers & Xxxxxxx, independent public accountants,
containing (or confirming as of a later date) statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information relating to the Company contained in or
incorporated by reference into the Registration Statement and the
Prospectus.
(e) That, at the Closing Date, the Company shall have
furnished to the Manager a certificate dated the Closing Date and signed
by an executive officer of the Company, to the effect set forth below.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(i) the representations and warranties of the Company
contained herein are true and correct in all material respects as
of such Closing Date;
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(ii) no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission;
(iii) subsequent to the execution and delivery of this
Agreement and prior to such Closing Date, there has not occurred
any downgrading, nor shall any notice have been given of (A) any
intended or potential downgrading or (B) any review or possible
change that does not indicate the direction of a possible change,
in the rating accorded any of the Company's securities by either
of Standard & Poor's Ratings Group or Xxxxx'x Investors Service,
Inc.; and
(iv) there has not occurred any material adverse change,
or any development involving a prospective material adverse
change, in the financial condition, or in the business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Registration Statement and the
Prospectus exclusive of any supplement or amendment thereto,
whether or not incorporated by reference; and
(v) the Prospectus shall have been filed with the
Commission pursuant to Rule 424 within the applicable time period
prescribed for such filing and in accordance with Section 3(a) of
this Agreement.
(f) That the Company shall have performed in all material
respects such of its obligations under this Agreement as are to be
performed by the terms hereof at or before the time of purchase.
6. Termination of Agreement. If the sale to the Underwriters
of the Offered Securities, as contemplated in this Agreement, is not carried
out by the Underwriters for any reason permitted hereunder or if such sale is
not carried out because the Company shall be unable to comply with any of the
terms hereof, the Company shall not be under any obligation or liability under
this Agreement (except to the extent provided in Sections 4 and 9 hereof), and
the Underwriters shall be under no obligation or liability to the Company under
the agreement (except to the extent provided in Section 9 hereof) or to one
another hereunder.
If the Manager or any group of Underwriters elect to terminate
this Agreement as provided in this Section 6, the Company and each other
Underwriter shall be notified promptly by letter or telegram.
7. Defaulting Underwriters. If, on the First Closing Date or
the Option Closing Date (if any is specified in the Underwriting Agreement), as
the case may be, any Underwriter or Underwriters shall default in its or their
obligation to take up and pay for the Offered Securities to be purchased by it
or them hereunder on such date and,
(i) the aggregate number of Offered Securities which
the defaulting
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Underwriters agreed but failed to purchase is 10% or less of the
aggregate number of Firm Shares to be purchased hereunder, the
non-defaulting Underwriters, whether one or more, or the Company,
may make arrangements satisfactory to the Company and the non-
defaulting Underwriters for the purchase of such Offered
Securities by other persons, including any of the non-defaulting
Underwriters, but if no such arrangements are made by the First
Closing Date or the Option Closing Date, as the case may be, the
non-defaulting Underwriters shall be obligated severally, in the
proportions that the number of Firm Shares set forth opposite
their respective names in the Underwriting Agreement bears to the
aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, to purchase the Offered
Securities which the defaulting Underwriters agreed but failed to
purchase on such date; provided that in no event shall the number
of Offered Securities which any non-defaulting Underwriter has
agreed to purchase hereunder be increased by an amount in excess
of one-ninth of such number, without the written consent of the
non-defaulting Underwriter; or
(ii) the aggregate number of Offered Securities which
the defaulting Underwriters agreed but failed to purchase on such
date is more than 10% of the aggregate number of Firm Shares to
be purchased hereunder and arrangements satisfactory to the non-
defaulting Underwriters and the Company for the purchase of such
Offered Securities are not made by the non-defaulting
Underwriters or the Company within thirty-six hours after such
default, the Underwriting Agreement will terminate without
liability on the part of the non-defaulting Underwriters or the
Company.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Offered Securities hereunder unless all of the Firm Shares are
purchased by the Underwriters (or by substituted underwriters selected by the
Manager with the approval of the Company or selected by the Company with the
Manager's approval).
If a new underwriter or underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provisions, the Company or the Manager shall have
the right to postpone the First Closing Date or the Option Closing Date, as the
case may be, for a period not exceeding five business days in order that
necessary changes in the Registration Statement and Prospectus and other
documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any underwriter substituted under this Section 7 with like effect as if
such substituted underwriter had originally been named herein.
8. Representations and Warranties. The Company represents and
warrants
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to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part
became effective, did not contain, and each such part, as amended or
supplemented, if applicable, will not contain any 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,
(iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this Section 8(b)
do not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter expressly for
use therein.
(c) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the state
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(d) each of Sun Energy Partners, L.P., Sun Operating Limited
Partnership and Oryx U.K. Energy Company has been duly incorporated or
formed and is validly existing in good standing under the laws of the
jurisdiction of its incorporation or formation and has all consents,
authorizations, approvals, orders, certificates and permits of and from,
and has made all declarations and filings with, all federal, state,
local and other governmental authorities, and all courts or other
tribunals necessary to conduct its business as described in the
Prospectus, except to the extent that the lack of such consents,
authorizations, approvals, orders, certificates or permits would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
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(e) this Agreement has been duly authorized, executed and
delivered by the Company;
(f) Coopers & Xxxxxxx are independent accountants with respect
to the Company as required by the Securities Act and the applicable
rules and regulations thereunder;
(g) the Company has authorized and outstanding capital stock
as set forth under "Description of Capital Stock" in the Prospectuses,
which capital stock is validly issued, fully paid and non-assessable and
conforms in all material respects to the descriptions contained therein;
(h) the Offered Securities have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable, and the issuance
of such Offered Securities will not be subject to any preemptive or
similar rights;
(i) the Conversion Shares, if any, have been duly authorized
and reserved for issuance upon conversion of the Offered Securities and,
when issued and delivered upon any such conversion, will be validly
issued, fully paid and non-assessable, and the issuance of such
Conversion Shares will not be subject to any preemptive or similar
rights; and
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement have
been authorized by all necessary corporate action and will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or to
the best of the Company's knowledge, any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or its subsidiaries, that is material to the Company and its
subsidiaries, taken as a whole, and no consent, approval, authorization
or order of or qualification with any governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, except such as may be required by the securities or Blue
Sky laws of the various states.
9. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act, or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities, in so far as such losses, claims, damages and
liabilities arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any Basic Prospectus or any
preliminary prospectus, or arise out of or are based upon
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any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished to the Company in writing by any Underwriter
expressly for use therein. The foregoing indemnity agreement with respect to
any Basic Prospectus or any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Offered Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Offered Securities to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Act, or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
each Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter expressly
for use in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any Basic Prospectus or any preliminary prospectus.
(c) In case any proceeding shall be instituted involving any
person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (hereinafter called the indemnified
party) shall promptly notify the person against whom such indemnity may be
sought (hereinafter called the indemnifying party) in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to differing interests between them. It is understood that
the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties, and
that all such fees and expenses shall be reimbursed as they are incurred. In
the case of any such separate firm for the Underwriters and such control
persons of Underwriters, such firm shall be designated in writing by the
Manager. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying party shall not be
liable for any
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settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) or
(b) of this Section 9 is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Underwriters from the offering of the
Offered Securities or (ii) if the allocation provided by clause (i) above 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 and of the Underwriters in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Underwriters 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.
(e) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 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 in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting percentages determined by the ratio which the original purchase
obligation of any Underwriter appearing in the Underwriting Agreement (or such
amount
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increased as provided in Section 7 above) bears to the total purchase
obligations of the Underwriters set forth therein.
(f) The indemnity and contribution agreements contained in
this Section 9 and the representations and warranties of the Company contained
herein shall remain operative and in full force and effect regardless of (1)
any termination of this Agreement, (2) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (3) acceptance of and payment for any of the Offered Securities.
10. Termination in Certain Events. This Agreement shall be
subject to termination in the Manager's absolute discretion, by notice given to
the Company, if (a) after the execution and delivery of this Agreement and
prior to the First Closing Date or the Option Closing Date, as the case may be,
(i) trading generally shall have been suspended or materially limited on the
New York Stock Exchange; (ii) trading in the common stock of the Company shall
have been suspended or materially limited on the New York Stock Exchange; (iii)
a general moratorium on commercial banking activities in New York shall have
been declared by either Federal or New York State authorities; or (iii) there
shall have occurred any outbreak or escalation of hostilities or any calamity
or crisis that, in the judgment of the Manager, is material and adverse and (b)
such event singly or together with any other such event makes it, in the
judgment of the Manager, impracticable to market the Offered Securities being
delivered on such Closing Date on the terms and in the manner contemplated in
the Prospectus.
11. Counterparts. This Agreement may be signed by the parties
in counterparts which together shall constitute one and the same agreement
between the parties and shall become effective at such time as each of the
parties shall have signed such counterparts and shall have notified the other
party thereof.
12. Construction. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
13. Parties at Interest. This Agreement has been and is made
solely for the benefit of the Underwriters and the Company, and the controlling
persons, directors and officers referred to in Section 9 hereof, and their
respective successors, assigns, executors and administrators. No other person
shall acquire or have any right under or by virtue of this Agreement.
14. Section Headings. The Section headings in this Agreement
have been inserted as a matter of convenience of reference and are not a part
of this Agreement.
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EXHIBIT A
FORM OF OPINION OF
XXXXXXX X. XXXXXX, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY OF THE COMPANY
______________, 19__
[MANAGER]
as Manager for the several Underwriters
[ADDRESS]
Dear Sirs:
I am Vice President, General Counsel and Secretary of Oryx Energy
Company, a Delaware corporation (the "Company"), and in such capacity am
familiar with the Underwriting Agreement dated ____________, 199_ (the
"Underwriting Agreement") between you and the Company, pursuant to which the
Underwriters severally agree to purchase from the Company an aggregate of
_________ shares of [title of securities] of the Company (the "Offered
Securities").
I, or persons responsible to me, have examined originals or copies,
certified or otherwise identified to my satisfaction, and such documents,
corporate records, certificates of public officials and other instruments as I
have deemed necessary or advisable for the purpose of rendering this opinion.
Defined terms herein unless otherwise specified shall have the meanings
specified in the Underwriting Agreement.
I have also examined copies of the Registration Statement on Form S-3
(File No. 33-____) relating to up to an aggregate of _______ shares of Offered
Securities filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), exhibits
thereto and documents incorporated by reference therein. Such Registration
Statement is now effective, and together with the exhibits thereto and
documents incorporated by reference therein is herein called the "Registration
Statement". The prospectus constituting a part thereof, in the form filed with
the Commission pursuant to Rule 424 of the rules and regulations under the Act,
together with the prospectus supplement (other than a preliminary prospectus
supplement) specifically relating to the Offered Securities, as filed with, or
mailed for filing to, the Commission pursuant to Rule 424, is herein called the
"Prospectus".
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Based upon the foregoing, I am of the opinion that:
(1) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and is
duly qualified to do business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect upon
the Company and its subsidiaries, taken as a whole;
(2) Each of the Company, Sun Energy Partners, L.P., Sun Operating
Limited Partnership and Oryx U.K. Energy Inc. (such corporations or
partnerships other than the Company being collectively referred to herein as
the "Subsidiaries") has been duly incorporated or formed and is validly
existing in the jurisdiction of its incorporation or formation, and has all
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, and all courts or other tribunals,
necessary to conduct its business as described in the Prospectus, except to the
extent that the lack of such consents, authorizations, approvals, orders,
certificates or permits could not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(3) The Company has an authorized and outstanding capital stock as
set forth under "Description of Capital Stock" in the Prospectuses, which
capital stock conforms in all material respects to the descriptions contained
therein;
(4) The Offered Securities have been duly authorized and, when issued
and delivered in accordance with the terms of the Underwriting Agreement, will
be validly issued, fully paid and non-assessable, and the issuance of such
Offered Securities will not be subject to any preemptive or similar rights;
(5) The Conversion Shares, if any, have been duly authorized and
reserved for issuance upon conversion of the Offered Securities and, when
issued and delivered upon any such conversion, will be validly issued, fully
paid and non-assessable, and the issuance of such Conversion Shares will not be
subject to any preemptive or similar rights;
(6) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(7) The execution of delivery and performance of the Underwriting
Agreement will not contravene any provision of applicable law or the
Certificate of Incorporation, By-laws or the agreement of limited partnership
of the Company or any Subsidiary or any material agreement or other material
instrument binding upon the Company or any Subsidiary, or any order or
regulation known to me to be applicable to the Company or any Subsidiary of any
court, regulatory body, administrative agency or governmental body having
jurisdiction in the premises, and no consent, approval or authorization of any
governmental body or agency (other
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14
than pursuant to any state securities or Blue Sky law) is required for the
performance of the Underwriting agreement and the issuance and sale of the
Offered Securities pursuant to the Underwriting Agreement;
(8) The statements (1) in the Registration Statement under Item 15
and (2) in the Company's most recent Annual Report on Form 10-K under
["Business and Properties - Other" and "Legal Proceedings"], and the statements
in the Prospectus with regard to the ownership of the Subsidiaries, in each
case insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein;
(9) After due inquiry, I do not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries (including the Subsidiaries) is a party or to which any of the
properties of the Company or any of its subsidiaries (including the
Subsidiaries) is subject which is required to be described or of any contract
or other document which is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required; and
(10) I (a) am of the opinion that (except as to financial statements
included therein, as to which I am not called upon to express any opinion) each
document, if any, filed pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in the Registration
Statement and the Prospectus complied when so filed as to form in all material
respects with the Exchange Act and the rules and regulations of the Commission
thereunder, (b) am of the opinion that the Registration Statement, and
Prospectus, as amended or supplemented, if applicable (except as to financial
statements and other financial data included therein, as to which I am not
called upon to express any opinion), comply as to form in all material respects
with the Securities Act, (c) believe that (except as to financial statements
and other financial data included therein, as to which I am not called upon to
express any belief) each part of the Registration Statement when such part
became effective or was incorporated by reference into the Registration
Statement did not contain, and as of the date this opinion is delivered, does
not contain, any 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 (d) believe that (except as to financial statements
and other financial data included therein, as to which I am not called upon to
express any belief) the Registration Statement and the Prospectus, as amended
or supplemented, if applicable, do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
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I am qualified to practice law in the State of New York and I express no
opinion except as to matters governed by the laws of the State of New York, the
General Corporation Law of the State of Delaware and United States federal
laws.
Very truly yours,
Xxxxxxx X. Xxxxxx
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EXHIBIT B
FORM OF OPINION OF
AKIN, GUMP, STRAUSS, XXXXX & XXXX, L.L.P.
SPECIAL COUNSEL FOR THE COMPANY
___________________, 199__
[Manager]
as Manager for the several Underwriters
[Address]
Dear Sirs:
We have acted as counsel for Oryx Energy Company (the "Company") in
connection with the issue and sale to the several underwriters (the
"Underwriters"), for whom you are acting as Manager, named in the Underwriting
Agreement dated __________, 199_ (the "Underwriting Agreement") an aggregate of
_________ shares of [title of securities] (the "Offered Securities") of the
Company. Defined terms herein unless otherwise specified shall have the
meanings specified in the Underwriting Agreement.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such other documents, corporate records, certificates
of public officials and other instruments as we have deemed necessary or
advisable for the purpose of rendering this opinion, including those relating
to the authorization, execution and delivery by the Company of the Underwriting
Agreement and the authorization, issuance and sale of the Offered Securities by
the Company.
We have reviewed the Company's Registration Statement on Form S-3 (File
No. 33-_____) relating to up to an aggregate ______ shares of Offered
Securities filed with the Securities and Exchange Commission (the "Commission")
pursuant to the provisions of the Securities Act of 1933, as amended (the
"Act"), and the documents incorporated by reference in the prospectus included
therein (the "Incorporated Documents"). In addition, we have reviewed evidence
that the registration statement was declared effective under the Act. The
registration statement (including the Incorporated Documents) as amended to the
date of the Underwriting Agreement is hereinafter referred to as the
"Registration Statement", and the prospectus included in the Registration
Statement, as supplemented by the final prospectus supplement dated __________
specifically relating to the Offered Securities in the form first filed with
the Commission pursuant to Rule 424 under the Act and used to confirm sales of
the Offered Securities is hereinafter referred to as the "Prospectus", and such
term and the term "Registration Statement" each include the Incorporated
Documents.
Based upon the foregoing, we are of the opinion that:
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(i) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(ii) the Offered Securities have been duly authorized and,
when delivered to and paid for by the Underwriters in accordance with the
Underwriting Agreement, will be validly issued, fully paid and nonassessable,
and the issuance of such Offered Securities will not be subject to any
preemptive or similar rights;
[(iii) the Conversion Shares, if any, have been duly authorized
and reserved for issuance upon conversion of the Offered Securities and, when
issued and delivered upon any such conversion, will be validly issued, fully
paid and non-assessable, and the issuance of such Conversion Shares will not be
subject to any preemptive or similar rights; and]
(iv) the statements in the Prospectus under "Description of
Offered Securities" and "Underwriting" (in the Prospectus Supplement), and
"Description of Capital Stock" (in the Basic Prospectus), insofar as such
statements constitute a summary of the documents referred to therein, fairly
present the information called for with respect to such documents.
We have not ourselves confirmed the accuracy or completeness of,
or otherwise verified, the information furnished with respect to other matters
in the Registration Statement or Prospectus. We have generally reviewed and
discussed with your representatives and with certain officers and employees of,
and counsel and independent public accountants for, the Company the information
furnished, whether or not subject to our confirmation and verification. On the
basis of such review and discussion, but without independent confirmation or
verification, except as stated, (i) we believe that the Registration Statement
and Prospectus (except for the financial statements and other financial and
statistical data included therein or omitted therefrom, as to which we are not
called upon to express any statement) on the date of the Underwriting Agreement
did not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading and that
the Prospectus (except as aforesaid) does not on the date hereof contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading and (ii) we are of the opinion that the
Registration Statement and Prospectus (except for the financial statements and
other financial and statistical data included therein or omitted therefrom, as
to which we are not called upon to express an opinion) comply as to form in all
material respects with the Act and the 1939 Act and the rules and regulations
of the Commission thereunder.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York (other than
the state securities or "blue sky" laws of such state), the federal laws of the
United States of America and the General Corporation Law of the State of
Delaware.
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This opinion is furnished by us, as counsel to the Company, to
you as Manager for the several Underwriters in connection with the issuance and
sale of the Offered Securities, solely for your benefit. This opinion may not
be relied upon by you for any other purpose or relied upon by or furnished to
any other person without our prior written consent.
Very truly yours,
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EXHIBIT C
FORM OF OPINION OF
MILBANK, TWEED, XXXXXX & XXXXXX
COUNSEL FOR THE UNDERWRITERS
, 199__
[Manager]
as Manager for the several Underwriters
[Address]
Dear Sirs:
We have acted as counsel for you in connection with the purchase
by the several Underwriters from Oryx Energy Company (the "Company"), pursuant
to the Underwriting agreement dated___________________ ___, 199__ between you
and the Company (the "Underwriting Agreement") of an aggregate of
______________ shares of [name of securities] (the "Offered Securities") of the
Company.
We have examined originals, or copies certified to our
satisfaction, of such corporate records of the Company, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee and other documents as we
have deemed it necessary to require as a basis for the opinions hereinafter
expressed. In our examination of documents we have assumed the genuineness of
all signatures, the authenticity of documents submitted to us as originals, the
conformity with original documents of all documents submitted to us as copies
and the authenticity of the originals of such later documents. As to various
questions of fact material to such opinions we have, when relevant facts were
not independently established, relied upon certifications by officers of the
Company, and other appropriate persons and statements contained in the
Registration Statement and Prospectus hereinafter mentioned.
In addition, we attended the closing held today at our offices in
New York, New York, during the course of which the Company delivered the
Offered Securities to your representative at the office of The Depository Trust
Company, New York, New York, in accordance with the Underwriting Agreement,
against payment therefor.
Based upon the foregoing, and having regard to legal
considerations which we deem relevant, we are of the opinion that:
1. The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware and has corporate power
to transact the business in which it is now engaged.
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2. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
3. The Registration Statement on Form S-3 with respect to the
Offered Securities, as amended (the "Registration Statement"), filed
with the Securities and Exchange Commission (the "Commission") pursuant
to the Securities Act of 1933, as amended (the "Act"), has become
effective and remains in effect at this date, and the Prospectus dated
__ ___________ ___, 199__, including all documents incorporated by
reference pursuant to the requirements of Form S-3 under the Act
constituting a part thereof (the "Basic Prospectus"), as supplemented by
the prospectus supplement dated ______________ ___, 199__ relating to
the Offered Securities (the "Prospectus Supplement") (the Basic
Prospectus as supplemented by the Prospectus Supplement being herein
referred to as the "Prospectus"), may lawfully be used for the purposes
specified in the Act in connection with the offer and sale of the
Offered Securities in the manner therein specified.
4. The Registration Statement and the Prospectus (except the
financial statements and other financial and statistical data included
therein as to which we express no opinion) appear on their face to be
appropriately responsive in all material respects to the requirements of
the Act, the Securities Exchange Act of 1934, as amended, and to the
applicable rules and regulations of the Commission under said Acts.
As to the financial statements included in the Prospectus, we
have made no examination of the Company's books of account and we
therefore express no opinion. As to the statements under "Description of
Offered Securities" in the Basic Prospectus, as supplemented by
statements under "Description of Capital Stock" in the Prospectus
Supplement, we are of the opinion that the statements are accurate and
do not omit any material fact required to be stated therein or necessary
to make such statements not misleading. As to other matters we have not
undertaken to determine independently the accuracy or completeness of
the statements contained in the Registration Statement or in the
Prospectus. We have, however, participated in extended conferences with
counsel for and representatives of the Company in connection with the
preparation of the Registration Statement, and we have reviewed all
documents incorporated by reference in the Prospectus pursuant to the
requirements of Form S-3 under the Act and such of the corporate records
of the Company as we deemed advisable. None of the foregoing disclosed
to us any information which gave us reason to believe that the
Registration Statement or the Prospectus (except the financial
statements and other financial and statistical data included therein as
to which we express no opinion) contains on the date hereof any untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
5. The Offered Securities conform to the terms of the
Underwriting Agreement and to the statements with respect thereto
contained in the Registration
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Statement and the Prospectuses and have been duly authorized and, when
issued and delivered in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Offered Securities will not be subject to any
preemptive or similar rights.
6. The Conversion Shares, if any, have been duly authorized
and reserved for issuance upon conversion of the Offered Securities and,
when issued and delivered upon any such conversion, will be validly
issued, fully paid and non-assessable, and the issuance of such
Conversion Shares will not be subject to any preemptive or similar
rights.
We have also examined the opinions dated the date hereof of
Xxxxxxx X. Xxxxxx, Vice President, General Counsel and Secretary of the
Company, and Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., special counsel for the
Company, delivered in accordance with the provisions of Sections 5(a) and 5(b),
respectively, of the Underwriting Agreement, which opinions are in form
satisfactory to us.
We do not express any opinion as to matters governed by any laws
other than the laws of the State of New York, the Federal laws of the United
States and the General Corporation Law of the State of Delaware.
Very truly yours,
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TERMS AGREEMENT
[DESCRIPTION OF SECURITIES]
[DATE]
Oryx Energy Company
00000 Xxxx Xxxx
Xxxxxx, Xxxxx 00000-0000
Dear Sirs:
We (the "Underwriters") understand that Oryx Energy Company, a Delaware
corporation (the "Company"), proposes to issue and sell an aggregate of
___________ shares (the "Firm Shares") of [Description of Offered Security]
(the "Offered Securities").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell all of the Firm Shares, and
each of the Underwriters agrees, severally and not jointly, to purchase the
respective number of Firm Shares set forth opposite its name below, in each
case at a purchase price of $____ per share of such Offered Securities (the
"Purchase Price").
We also understand that the Company proposes to sell not more than an
additional _______ shares (the "Additional Shares") of the Offered Securities,
if and to the extent that we, as Manager of the offering, shall have determined
to exercise, on behalf of the Underwriters, the right to purchase such shares.
The Firm Shares and the Additional Shares are collectively referred to as the
"Offered Securities."
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell the Additional Shares, and
the Underwriters shall have a one-time right to purchase, severally and not
jointly, up to _______ Additional Shares at the Purchase Price. Additional
Shares may be purchased solely for the purpose of covering over-allotments made
in connection with the offering of the Firm Shares. If any Additional Shares
are to be purchased, each Underwriter agrees, severally and not jointly, to
purchase the number of Additional Shares (subject to adjustments to eliminate
fractional shares as we may determine) that bears the same proportion to the
total number of Additional Shares to be purchased as the number of Firm Shares
set forth opposite its name below bears to the total number of Firm Shares.
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Principal
Amount of
Name Firm Shares
---- -----------
Total . . . . . . . . . . . . . . __________
The Underwriters will pay for such Offered Securities by wire transfer
of Federal or similar same day funds, upon delivery of the Offered Securities
at the offices of Milbank, Tweed, Xxxxxx & XxXxxx at 10:00 a.m. (New York time)
on _____________ or at such other time, not later than 10:00 a.m. (New York
time) on such date as shall be jointly designated by the Underwriters and the
Company (the "First Closing Date").
The Underwriters will pay for any Additional Shares upon delivery
thereof at the offices of Milbank, Tweed, Xxxxxx & XxXxxx at 10:00 a.m. (New
York time) on _____________ or at such other time, not later than 10:00 a.m.
(New York time) on such date as shall be jointly designated by the Underwriters
and the Company (the "Option Closing Date"). The Option Closing Date may be the
same day as the First Closing Date but shall in no event be earlier than the
First Closing Date nor later than [ten] business days after the giving of the
notice referred to hereinafter. The notice of the determination to exercise the
option to purchase Additional Shares and the Option Closing Date may be given
at any time within 30 days after the date of this Agreement.
Certificates for the Firm Shares and the Additional Shares shall be in
definitive form and registered in such names and in such denominations as we
shall request in writing not less than two full business days prior to the
First Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly
paid, against payment of the Purchase Price therefor.
The Lock-Up Period for the offering shall be a period of ____ days
beginning the day after the date of the Prospectus.
The Offered Securities shall have the terms set forth in the Prospectus
dated ___________ and the Prospectus Supplement dated ___________. [IF
PREFERRED STOCK, ADD INFORMATION ABOUT LIQUIDATION PREFERENCE, DIVIDEND RATE,
CONVERSION AND REDEMPTION, AS APPLICABLE].
All provisions of the document entitled Oryx Energy Company
Underwriting Agreement Standard Provisions (Debt) dated ________________, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent
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as if such provisions had been set forth in full herein, except to the extent
that such provisions are amended or supplemented by this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this agreement in the space set forth below and returning the
signed copy to us.
Very truly yours,
[Underwriter]
By:
---------------------------------
Name:
Title:
Accepted:
ORYX ENERGY COMPANY
By:
---------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Executive Vice President,
Finance, Chief Financial
Officer and Treasurer
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