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EXHIBIT 1(d)
ANADARKO PETROLEUM CORPORATION
(a Delaware corporation)
Equity Securities
1998 UNDERWRITING AGREEMENT
(Standard Provisions)
To the Representatives of the several Underwriters named in
the respective Terms Agreements hereinafter described.
Dear Sirs:
Anadarko Petroleum Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell up to $300,000,000 aggregate initial public offering
price of its equity securities (the "Securities") in one or more offerings on
terms determined at the time of sale. Each issue of Securities may vary as to
number of shares, liquidation values, dividend rate or rates and timing of
payments thereof, redemption provisions and conversion provisions, if any, and
any other variable terms.
The term "you" or "your" as used herein, unless the context otherwise
requires, shall mean such of the parties to whom this Agreement is addressed as
are named in the applicable Terms Agreement. References to this Agreement
include, where the context so requires, the applicable Terms Agreement.
Each offering of Securities will be made through one or more of you or
through an underwriting syndicate managed by one or more of you. Whenever the
Company determines to make an offering of Securities, it will enter into an
agreement (the "Terms Agreement") providing for the sale of such Securities to,
and the purchase and offering thereof by, one or more of you and such other
underwriters, if any, selected by you as have authorized you to enter into such
Terms Agreement on their behalf (the "Underwriters", which term shall include
you whether acting alone in the sale of Securities or as members of an
underwriting syndicate). The Terms Agreement relating to each offering of
Securities shall specify the class, designation and terms of the Securities to
be issued, the names of the Underwriters participating in such offering (subject
to substitution as provided in Section 9 hereof) and the number of Securities
which each Underwriter severally agrees to purchase (collectively, the "Firm
Securities") the names of such of you and such other Underwriters, if any,
acting as co-managers in connection with such offering, the price at which the
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price and the time and place of delivery and payment. In
addition, the Terms Agreement shall specify the maximum number of Securities, if
any (the "Additional Securities"), that the Company proposes to issue and sell
to the Underwriters if and to the extent that you shall have determined to
exercise, on behalf of the several Underwriters, the right to purchase such
Additional Securities. The Terms Agreement, which shall be substantially in the
form of Exhibit A hereto, may take the form of an exchange of any standard form
of written telecommunication between you and the Company. Each offering of
Securities will be governed by this Agreement, as supplemented by the applicable
Terms Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon each Underwriter participating in the offering of
such Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 relating to the Securities
and offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act") , and has 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. Such registration statement, as amended, and the prospectus relating
to the sale of Securities by the Company constituting a part thereof, including
all documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934 (the "1934 Act"),
the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus," respectively; provided, however, that a
supplement of the Prospectus contemplated by Section 3(a) hereof (a "Prospectus
Supplement") shall be deemed to have supplemented the Prospectus only with
respect to the offering of Securities to which it relates.
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SECTION 1. Representations and Warranties. The Company represents and
warrants to each of you, and to each Underwriter named in a Terms Agreement as
of the date thereof (the "Representation Date"), as follows:
(a) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective and as of the
Representation Date, complied, and will comply, in all material
respects with the requirements of the 1933 Act and the rules and
regulations thereunder (the "1933 Act Regulations"); the Registration
Statement, at the time the Registration Statement became effective and
as of the Representation Date, did not, and will not, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and the Prospectus, at the time the Registration Statement
became effective and as of the Representation Date, did not, and will
not, contain 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 or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter expressly for use in the Registration Statement or
Prospectus.
(b) The documents incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the Commission,
complied, and will comply, in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto became or become
effective, and when filed under the 1934 Act, did not, and will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
are made, not misleading.
(c) The accountants who certified the financial statements
included or incorporated in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(d) The consolidated financial statements included or
incorporated in the Registration Statement and Prospectus present
fairly the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the results of their
operations and the changes in their financial position for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles consistently applied
during the period, except as stated therein.
(e) Since the respective dates as of which information is
given in the Prospectus, except as otherwise stated therein or
contemplated thereby, there has been (A) no material adverse change in
the condition, financial or otherwise, of the Company and its
subsidiaries considered taken as a whole and (B) no litigation or
governmental proceeding instituted or, to the knowledge of the Company,
threatened against the Company or any subsidiary which would reasonably
be expected to have any material adverse effect on the financial
condition of the Company and its subsidiaries taken as a whole.
(f) 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 the corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified or licensed to do
business as a foreign corporation in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification or licensing, except to the extent
that the failure to be so qualified or licensed or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(g) Each subsidiary of the Company listed in Exhibit 21 to the
most recent Annual Report on Form 10-K on file with the Commission (a
"Significant Subsidiary") is a duly incorporated and validly existing
corporation in good standing under the laws of its jurisdiction of
incorporation with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus. Each Significant Subsidiary is duly qualified or licensed
to do business as a foreign
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corporation in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification or licensing, except to the extent that the failure to be
so qualified or licensed or be in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole. The issued and outstanding common stock of each of the
Significant Subsidiaries has been duly authorized and validly issued
and is fully paid and non-assessable and is owned by the Company free
and clear of any mortgages, liens or similar encumbrances.
(h) Neither the Company nor any Significant Subsidiary is in
violation of its certificate of incorporation or by-laws, and the
Company is not in default in the performance or observance of any
obligation in any indenture, mortgage, evidence of indebtedness or
similar agreement or instrument to which it is a party or by which it
or any of its properties may be bound which default would have a
material adverse effect on the Company and its subsidiaries taken as a
whole. The execution and delivery of this Agreement and the Terms
Agreement and the consummation of the transactions contemplated herein
and therein and the incurrence of the obligations herein and therein
set forth, have been or will be duly authorized by all necessary
corporate action and do not and will not, conflict with, or constitute
or result in a breach of or default under, the certificate of
incorporation or by-laws of the Company or any law, order, rule,
regulation or court decree or, except for any such conflict, breach or
default which would not have a material adverse effect on the Company
and its subsidiaries taken as a whole, any bond, debenture, note or
other evidence of indebtedness or any material contract, lease,
license, indenture, mortgage, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective properties may be bound.
(i) No consent, approval, authorization, order or
qualification or registration of or with any court or governmental
agency or body is required for the consummation of the transactions
contemplated in this Agreement, except for the registration of the
offer and sale of the Securities under the 1933 Act and such consents,
approvals, authorizations, orders, qualifications or registrations as
may be required under the Blue Sky or securities laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters.
(j) The Company and each Significant Subsidiary possess such
valid franchises, certificates of convenience and necessity, easements,
rights-of-way, operating rights, licenses, permits, consents,
authorizations and orders of governmental political subdivisions or
regulatory authorities as, in the opinion of the Company, are
materially necessary to carry on the respective businesses of each as
described in the Prospectus.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) The authorized capital stock of the Company conforms as to
legal matters to the descriptions thereof contained in the Prospectus.
(m) The Securities have been duly authorized and, when issued
and delivered in accordance with the terms of this Agreement and the
applicable Terms Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Securities will not be subject
to any preemptive or similar rights.
(n) The shares of the Company's Common Stock, par value $.10
per share (the "Common Stock"), into which the Securities may be
converted, if any (the "Conversion Shares"), have been duly authorized
and reserved for issuance upon conversion of the 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.
SECTION 2. Purchase and Sale. The several commitments of the
Underwriters to purchase, and the obligation of the Company to sell, Securities
pursuant to any Terms 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 set forth.
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Payment of the purchase price for, and delivery of, any Firm Securities
to be purchased by the Underwriters shall be made at such time and place and on
such date as specified in the applicable Terms Agreement (unless postponed in
accordance with the provisions of Section 9) (each such time and date being
referred to as a "Closing Time"). Payment shall be made to the Company in
Federal or other funds immediately available in New York City or by such other
means as may be specified in the Terms Agreement against delivery to you for the
respective accounts of the Underwriters of the Firm Securities to be purchased
by them.
If so specified in the applicable Terms Agreement, the Underwriters
shall have a one-time right to purchase, severally and not jointly, up to the
number of Additional Securities set forth in the applicable Terms Agreement at
the purchase price set forth in the applicable Terms Agreement plus accrued
dividends, if any. Additional Securities may be purchased solely for the purpose
of covering over-allotments made in connection with the offering of the Firm
Securities. If any Additional Securities are to be purchased, each Underwriter
agrees, severally and not jointly, to purchase the number of Additional
Securities (subject to such adjustments to eliminate fractional shares as you
may determine) that bears the same proportion to the total number of Additional
Securities to be purchased as the number of Firm Securities set forth opposite
its name in the applicable Terms Agreement bears to the total number of Firm
Securities.
Payment of the purchase price for, and delivery of, any Additional
Securities to be purchased by the Underwriters shall be made at such time (which
may be the same as the Closing Time but shall in no event be earlier than the
Closing Time nor later than ten business days after the giving of the notice
hereinafter referred to) and place as shall be designated in a written notice
from you to the Company of your determination, on behalf of the Underwriters, to
purchase a number, specified in such notice, of Additional Securities, or at
such other time, in any event not later than 30 days after the Closing Time, as
shall be designated in writing by the Underwriters. The time and date of such
payment are hereinafter referred to as the "Option Closing Time". The notice of
the determination to exercise the option to purchase Additional Securities and
of the Option Closing Time may be given at any time within 30 days after the
date of the Terms Agreement.
Certificates evidencing the Firm Securities and Additional Securities
shall be in definitive form and registered in such names in such denominations
as you shall request in writing not less than two full business days prior to
the Closing Time or the Option Closing Time, as the case may be. The
certificates evidencing the Firm Securities and Additional Securities shall be
delivered to you at the Closing Time or the Option Closing Time, 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 Securities to the
Underwriters duly paid, against payment of the purchase price therefor.
SECTION 3. Covenants of the Company. The Company covenants with each of
you, and with each Underwriter participating in the applicable offering of
Securities, as follows with respect to such offering of Securities:
(a) As soon as practicable, following the execution of the
applicable Terms Agreement, the Company will prepare a Prospectus
Supplement setting forth the number, class and designation of
Securities covered thereby and their terms, the names of the
Underwriters participating in the offering and the number of Securities
which each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the offering, the
price at which the Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the selling
concession and reallowance, if any, any Additional Securities
information and such other information as you and the Company deem
appropriate in connection with the offering of the Securities. The
Company will transmit copies of the Prospectus Supplement to the
Commission in compliance with Rule 424 of the 1933 Act Regulations and
will furnish to the Underwriters named therein as many copies of the
Prospectus and such Prospectus Supplement as you shall reasonably
request for the purposes contemplated by the 1933 Act or the 1933 Act
Regulations.
(b) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of such Securities any
event shall occur or condition exist as a result of which it is
necessary to further amend or supplement the Prospectus in order that
the Prospectus will not include an
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untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in the light of
circumstances existing at the time it is delivered to a purchaser or if
it shall be necessary at any time 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, as soon as practicable, prepare and file (if required) with the
Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act or otherwise, as may be necessary to correct
such untrue statement or omission or to make the Registration Statement
comply with such requirements.
(c) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 18
months after the date of the Prospectus Supplement relating to such
Securities, earnings statements of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the 1933
Act and the 1933 Act Regulations (including at the option of the
Company Rule 158).
(d) The Company, during the period when the Prospectus is
required by the 1933 Act to be delivered in connection with sales of
such Securities, will give you notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus, whether pursuant to the 1934 Act, the 1933 Act or
otherwise and will furnish you with copies of any such amendment or
supplement or other documents proposed to be filed in a reasonable time
for review by the Underwriters in advance of filing.
(e) The Company, during the period when the Prospectus is
required by the 1933 Act to be delivered by you in connection with
sales of Securities, will notify each of you, as soon as practicable,
and confirm the notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the mailing or delivery
to the Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act, (iii) the receipt of any
comments from the Commission with respect to the Registration
Statement, the Prospectus or any 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 and (v) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or of the threat or initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(f) The Company will deliver to each of you, as soon as
practicable, as many conformed copies 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 pursuant to Item 12 of Form
S-3 under the 0000 Xxx) as you may reasonably request and will also
deliver to you a conformed copy of the Registration Statement and each
amendment thereto for each of the Underwriters.
(g) The Company will cooperate with you to qualify such
Securities for offering and sale under the applicable Blue Sky or
securities laws of such states and other jurisdictions of the United
States as you may designate, and will cooperate in maintaining such
qualifications in effect for as long as may be required for the
distribution of such Securities except that the Company shall not be
obligated to file any general consent to service or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified. In each jurisdiction in which such
Securities of the sale thereof shall have been qualified as above
provided, the Company will cooperate with you to make and file such
statements and reports in each year as may be required by the laws of
such jurisdiction. The Company will cooperate in the determination of
the eligibility for investment of the Securities under the laws of such
jurisdictions as you reasonably request.
(h) If so specified in the applicable Terms Agreement, the
Company will not, without your prior written consent, offer, sell,
contract to sell or otherwise dispose of any securities of the Company
designated in such Terms Agreement during the Lock-up Period specified
in the applicable Terms Agreement, other than (i) the Securities to be
sold hereunder; (ii) the Common Stock, if any, issuable upon conversion
of the Securities or conversion of any other existing securities
convertible into Common Stock
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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
employee benefit plan or arrangement of the Company or any of its
subsidiaries existing on the date of the applicable Terms Agreement.
SECTION 4. Conditions of Your Obligations. The obligations of the
Underwriters to purchase Securities pursuant to any Terms Agreement are subject
to the accuracy in all material respects of the representations and warranties
on the part of the Company herein contained as of the date of the Terms
Agreement and as of the applicable Closing Time, to the performance by the
Company in all material respects of all of its covenants and other obligations
hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and, in the case of an offering hereunder
of preferred stock, (ii) the rating assigned by any nationally
recognized securities rating agency to any debt securities of the
Company as of the date of the applicable Terms Agreement shall not have
been lowered since the execution of such Terms Agreement.
(b) At the applicable Closing Time you shall have received
signed copies of:
(1) The opinion, dated as of the applicable Closing
Time, of special counsel for the Company specified in the
Prospectus, in form and substance satisfactory to you, to the
effect that:
(i) The Company is duly incorporated and
validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) The Company has the corporate power and
corporate authority to own, lease and operate its
properties and conduct its business as described in
the Prospectus.
(iii) This Agreement and the applicable
Terms Agreement have been duly authorized, executed
and delivered by the Company.
(iv) The Securities covered by the
applicable Terms Agreement 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 Securities will not be subject to any preemptive
or similar rights.
(v) The Conversion Shares, if any, have been
duly authorized, and, when issued and delivered upon
conversion of the Securities covered by the
applicable Terms Agreement, 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.
(vi) The Registration Statement is effective
under the 1933 Act and, to the best of their
knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(vii) No regulatory consent, authorization,
approval or filing is required by the laws of the
United States or of any state thereof for the
issuance, sale and delivery of the Securities covered
by the applicable Terms Agreement by the Company to
the Underwriters except such as have been obtained or
made under the 1933 Act, the 1934 Act and other
applicable legislation specified in such opinion and
such as may be required under state securities or
Blue Sky laws in connection with the purchase and
distribution of the Securities by you.
(viii) The execution and delivery of this
Agreement and any applicable Terms Agreement, the
issuance of Securities covered by the applicable
Terms
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Agreement, the incurrence of the obligations set
forth herein and therein, and the consummation of the
transactions herein and therein contemplated do not
and will not conflict with or constitute or result in
a breach of, or default under, the certificate of
incorporation or by-laws, each as in effect at the
applicable Closing Time, of the Company.
(ix) (A) Such counsel is of the opinion that
the Registration Statement and the Prospectus and any
supplements or amendments thereto (except for
financial statements or other financial or
statistical data contained therein as to which such
counsel need not express any opinion) comply as to
form in all material respects with the 1933 Act and
the 1933 Act Regulations; and (B) nothing which has
come to the attention of such counsel has caused them
to believe that the Registration Statement at the
time of the applicable Terms Agreement (except for
financial statements or other financial or
statistical data contained therein as to which such
counsel need not express any belief) contained any
untrue statement of a material fact or omitted to
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading or that the Prospectus, as amended or
supplemented, if applicable, contains any untrue
statement of a material fact or omits 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.
With respect to subparagraph (ix) above, such counsel may
state that their opinion and belief are based upon their participation
in the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification
except as specified.
In rendering the foregoing opinion or opinions, such counsel
shall opine only as to the Federal laws of the United States, the laws
of the State of New York and the General Corporation Law of the State
of Delaware. Such counsel may also state that they have relied as to
certain matters on information obtained from public officials, officers
of the Company and other sources believed by them to be responsible. In
rendering the foregoing opinion, special counsel for the Company shall
have received and may rely upon such certificates and other documents
and information as they may reasonably request to pass upon such
matters.
(2) The opinion or opinions, dated as of the
applicable Closing Time, of the General Counsel or Associate
General Counsel of the Company, in form and substance
satisfactory to you, to the effect that:
(i) The Company and each Significant
Subsidiary is duly qualified or licensed to do
business as a foreign corporation in good standing in
each jurisdiction in which the conduct of its
business or its ownership or leasing of property
requires such qualification or licensing, except to
the extent that the failure to be so qualified or
licensed or be in good standing would not have a
material adverse effect on the Company and its
subsidiaries, taken as a whole.
(ii) 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 with full corporate
power and authority to own, lease and operate its
properties and conduct its business as described in
the Registration Statement.
(iii) The issued and outstanding common
stock of each Significant Subsidiary has been duly
authorized and validly issued and is fully paid and
non-assessable; and the Company owns the issued and
outstanding common stock of each Significant
Subsidiary free and clear of any mortgages, liens or
similar encumbrances.
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(iv) The authorized capital stock of the
Company conforms as to legal matters to the
description thereof contained in the Prospectus.
(v) To the knowledge of such counsel, the
execution and delivery of this Agreement and any
applicable Terms Agreement, the issuance of the
Securities, 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, (a) any judgment,
order or decree of any domestic government,
governmental instrumentality or court having
jurisdiction over the Company, any Significant
Subsidiary, or any of their property, which is
material to such corporations, taken as a whole or
(b) any provision of any indenture, mortgage or
similar agreement or instrument known to such counsel
to which the Company or any Significant Subsidiary is
a party or by which they or any material part of
their property is bound except for such conflicts,
breaches or defaults as would not have a material
adverse effect on the Company and its subsidiaries
taken as a whole.
(vi) No regulatory consent, authorization,
approval or filing is required by the laws of the
State of Texas or, to the best of his knowledge, any
other state for the issuance, sale and delivery of
the Securities covered by the applicable Terms
Agreement by the Company to the Underwriters except
such as have been obtained or made under the 1933
Act, the 1934 Act and other applicable legislation
specified in such opinion and such as may be required
under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities
by you.
(vii) Such counsel does not know of any
litigation or any governmental proceeding instituted
or threatened against the Company or any Significant
Subsidiary which would be required to be disclosed in
the Prospectus and which is not disclosed.
(viii) (A) Such counsel is of the opinion
that the Registration Statement and the Prospectus
and any supplements or amendments thereto (except for
financial statements or other financial or
statistical data contained therein as to which such
counsel need not express any opinion) comply as to
form in all material respects with the 1933 Act and
the 1933 Act Regulations and the documents
incorporated by reference therein complied as to form
in all material respects when filed with the 1934 Act
and the 1934 Act Regulations; and (B) nothing which
has come to the attention of such counsel in the
course of his representation of the Company has
caused him to believe that any part of the
Registration Statement at the time of the applicable
Terms Agreement (except for financial statements or
other financial or statistical data contained therein
as to which such counsel need not express any belief)
contained any untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading and the Prospectus, as amended
or supplemented, if applicable, does not contain any
untrue statement of a material fact or omit to state
a material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading
With respect to subparagraph (viii) above, such counsel may
state that he does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and Prospectus except for those made under the
captions "Description of Capital Stock, Rights Agreement and Restated
Certificate of Incorporation" and "Description of Offered Securities"
(or similar caption) insofar as they relate to provisions of documents
therein described.
In rendering the foregoing opinion or opinions, such counsel
shall opine only as to matters governed by the Federal laws of the
United States, the laws of the State of Texas and the General
Corporation Law of the State of Delaware. Such counsel may also state
that he has relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by
him to be responsible.
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(3) The opinion or opinions, dated as of the
applicable Closing Time, of counsel for the Underwriters
specified in the Prospectus, with respect to the validity of
the Securities, the Registration Statement, the Prospectus and
other related matters as you reasonably may request. In
rendering the foregoing opinion, such counsel may rely, to the
extent recited therein, as to matters involving the laws of
any jurisdiction other than the States of Delaware and New
York, upon opinions of local counsel. Such counsel may also
state that they have relied as to certain matters on
information obtained from public officials, officers of the
Company and other sources believed by them to be responsible.
(c) At the applicable Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus,
any material adverse change or any development involving a prospective
material adverse change in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its
subsidiaries taken as a whole, and you shall have received a
certificate of the Chairman of the Board, President or a Vice President
of the Company, dated as of such Closing Time, that to the best of his
knowledge after reasonable investigation, there has been no such
material adverse change or development involving such a prospective
material adverse change, the representations and warranties of the
Company contained in Section 1 are true and correct in all material
respects with the same force and effect as though expressly made at and
as of such Closing Time, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened by the Commission.
(d) At the applicable Closing Time, you shall have received
from KPMG Peat Marwick LLP a letter, dated such date, in form and
substance satisfactory to you, containing 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 and its subsidiaries
contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(e) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such documents as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the 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 Securities as
herein contemplated shall be satisfactory in form and substance to you
and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the applicable
Terms Agreement may be terminated by you by notice to the Company at any time at
or prior to the applicable Closing Time, and such termination shall be without
liability of any party to any other party except as otherwise provided in
Sections 5 and 6.
The obligations of the Underwriters to purchase Additional Securities
pursuant to any Terms Agreement are subject to the delivery to you at the Option
Closing Time of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional Securities and other matters related to the issuance of the
Additional Securities.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Securities to the Underwriters, (iii) the fees and disbursements of the
Company's counsel and accountants, (iv) the qualification of the Securities
under Blue Sky or securities laws in accordance with the provisions of Section 3
(g), including filing fees and the fees and disbursements of counsel in
connection therewith and in connection with the preparation of any Blue Sky
Survey and Legal Investment Survey, (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus and any amendments
or supplements thereto, (vi) the fees of rating agencies, (vii) all fees and
disbursements of any
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transfer and paying agent and (viii) the fees and expenses, if any, incurred in
connection with the listing of the Securities on the New York Stock Exchange.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 4 or Section 8 (i), the Company shall reimburse the
Underwriters named in such Terms Agreement for all of their reasonable
out-of-pocket expenses, including the fees and disbursements of counsel for the
Underwriters, incurred in connection with such Terms Agreement and the proposed
offering, purchase and sale of the related Securities. Except as otherwise
provided in this Section 5, the Company shall not be required to pay your
expenses or those of other Underwriters.
SECTION 6. Indemnity 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 1933 Act or Section 20
of the 1934 Act from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused
by 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 relating to
any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
The foregoing indemnity with respect to any untrue statement
contained in or omission from any preliminary prospectuses shall not
inure to the benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any such loss, liability,
claim or damages purchased any of the Securities which are the subject
thereof if the untrue statement contained in or omission from any
preliminary prospectuses or any preliminary prospectus supplement was
corrected in a Prospectus (or any amendment or supplement thereto) but
such person did not receive a copy of such Prospectus (or any amendment
or supplement thereto) at or prior to confirmation of the sale of such
Securities to such person in any case where such delivery is required
by the 1933 Act, unless such failure to receive a copy of such
amendment or supplement resulted from non-compliance by the Company
with Sections 3(a) or (b) hereof.
(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
1933 Act or Section 20 of the 1934 Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in
the Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 6(a) or 6(b), such
person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (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 actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of
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any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by you, in the case of parties indemnified
pursuant to Section 6(a), and by the Company, in the case of parties
indemnified pursuant to Section 6(b). The indemnifying party shall not
be liable for any 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. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second and third sentences
of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. 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) To the extent the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient 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 on
the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause 6(d)(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 6(d)(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 that resulted in such losses, claims,
damages or liabilities, 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 Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Securities
(before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate Public Offering Price of the Securities. 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
Underwriters' respective obligations to contribute pursuant to this
Section 6 are several in proportion to the respective number of
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 6 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 that does not take account of the equitable considerations
referred to in Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph 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 6, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled
to contribution from any person who was not guilty of such
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fraudulent misrepresentation. The remedies provided for in this Section
6 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in
this Section 6 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) 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 person
controlling the Company and (iii) acceptance of and payment for any of
the Securities.
SECTION 7. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of any Securities to the Underwriters.
SECTION 8. Termination. This Agreement may be terminated for any reason
at any time by either the Company or a majority of you upon the giving of 30
days' written notice of such termination to the other parties hereto. Such of
you as may be named in any Terms Agreement may also terminate such Terms
Agreement, immediately upon notice to the Company, at any time at or prior to
the applicable Closing Time (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries taken as a whole, or in the
earnings, business or operations of the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, or (ii) if
there has occurred any new outbreak of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States is such as to
make it, in the reasonable judgment of such of you as are named in such Terms
Agreement, impracticable to market the Securities or enforce contracts for the
sale of the Securities, or (iii) if trading generally on either the American
Stock Exchange or the New York Stock Exchange has 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 such exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal or New York authorities. In the event of any
such termination, the provisions of Sections 5, 6, 7 and 12 shall remain in
effect.
SECTION 9. Default. If one or more of the Underwriters participating in
an offering of Securities shall fail at the applicable Closing Time or Option
Closing Time, as the case may be, to purchase the Securities which it or they
are obligated to purchase at such time hereunder and under the applicable Terms
Agreement (the "Defaulted Securities"') , then such of you as are named therein
shall have the right, within 36 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 36 hours you shall not have completed such arrangements for the purchase of
all of the Defaulted Securities, and if the Company shall not have completed
arrangements for the purchase of all, but not less than all, of the Defaulted
Securities by other underwriters satisfactory to such of you as are named in the
applicable Terms Agreement, then:
(a) if the aggregate number of Defaulted Securities does not
exceed 10% of the aggregate number of Firm Securities to be purchased
pursuant to such Terms Agreement, the non-defaulting Underwriters shall
be obligated to purchase the full amount thereof in the proportions
that the number of Firm Securities set forth opposite their respective
names in the applicable Terms Agreement bears to the aggregate number
of Firm Securities set forth opposite the names of all such
non-defaulting Underwriters, or
(b) if the aggregate number of Defaulted Securities exceeds
10% of the aggregate number of Firm Securities to be purchased pursuant
to such Terms Agreement, the applicable Terms Agreement shall
terminate, without any liability on the part of any non-defaulting
Underwriter or the Company.
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No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement and the applicable Terms Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section which does not result in a termination of the applicable
Terms Agreement, either you or the Company shall have the right to postpone the
applicable Closing Time or Option Closing Time, as the case may be, for a period
of not exceeding seven days in order that any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements
may be effected.
SECTION 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed, or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you, at the address indicated in the
applicable Terms Agreement; and notices to the Company shall be directed to it
at 00000 Xxxxxxxxxx Xx., Xxxxxxx, Xxxxx 00000, attention of Vice President and
Treasurer, or to such other address or person as may be designated in any such
notice.
SECTION 11. Parties. This Agreement shall inure to the benefit of and
be binding upon you and the Company, and any Terms Agreement shall inure to the
benefit of and be binding upon the Company and any Underwriter who becomes a
party to a Terms Agreement, and their respective successors. Nothing expressed
or mentioned in this Agreement or a Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
or thereto and their respective successors and the controlling persons and
officers and directors referred to in Section 6 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and such 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 any
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 12. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
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EXHIBIT A
ANADARKO PETROLEUM CORPORATION
Equity Securities
TERMS AGREEMENT
Dated:
--------------------
To: Anadarko Petroleum Corporation
00000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Vice President and Treasurer
Re: Underwriting Agreement (Standard Provisions) Equity Securities 1998
Title of Securities:
Number of Firm Securities to be issued:
Maximum number of Additional Securities to be issued:
Current ratings:
Dividend rate:
Redemption provisions:
Conversion provisions:
Other terms:
Public offering price:
Purchase price:
Specified funds for payment of purchase price:
Closing date and location:
Lock-up Period:
Additional co-managers, if any:
Subject to the terms and provisions of the above referenced Underwriting
Agreement, which is incorporated herein in its entirety and made a part hereof,
the Company agrees to sell and each Underwriter severally agrees to purchase the
number of Firm Securities set forth opposite its name.
Name Number of Firm Shares
---- ---------------------
We represent that as representatives of the several Underwriters we are
entitled to execute this Terms Agreement on behalf of the several Underwriters
and otherwise to act as representatives on their behalf. The Company shall be
entitled to act and rely upon any request, consent, notice or agreement given by
us as representatives of the several Underwriters.
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By
--------------------------------------
By
--------------------------------------
By
--------------------------------------
Acting on behalf of themselves and the
other named Underwriters.
Address for Notices:
Accepted:
ANADARKO PETROLEUM CORPORATION
By:
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