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EXHIBIT 1.1
TERMS AGREEMENT
Common Stock
May 12, 1999
Apache Corporation
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and Treasurer
Dear Sirs:
The undersigned underwriter (the "Underwriter") understands that Apache
Corporation (the "Company") proposes to issue and sell 13,000,000 shares of its
common stock, $1.25 par value per share and related rights to purchase common
stock (the "Offered Securities"). Subject to the terms and conditions set
forth herein or incorporated by reference herein, the Underwriter offers to
purchase 13,000,000 of Offered Securities at $31 per share on the Closing Time:
The Offered Securities shall have the following terms:
Number of Firm Securities to be issued: 13,000,000
Maximum number of Option Securities to be issued: 1,950,000
Initial price to public: $31 per share
Underwriting Commission: $1.28 per share
Purchase price: $29.72 per share
Closing Time: May 18, 1999
Place of delivery and payment: ▇▇▇▇▇ & Wood LLP
One World Trade Center
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Company account for wire transfer of payment: First National Bank of Chicago
Account No. ▇▇▇▇▇▇▇
ABA No. ▇▇▇▇▇▇▇▇▇
Lock-up pursuant to Section 3(j) of the
Underwriting Agreement Basic Terms: yes
Lock-up pursuant to Section 4(e) of the
Underwriting Agreement Basic Terms: yes
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Note: If yes, see Schedule A hereto.
Other terms, if any: Underwriter agrees to pay the legal fees and expenses of
its counsel.
At the Closing Time, the Underwriter will pay the Company by wire
transfer to the account specified above $386,360,000.
All the provisions contained in "Apache Corporation-Common
Stock--Underwriting Agreement Basic Terms" (the "Basic Terms"), filed as an
exhibit to the Registration Statement relating to the Offered Securities and
attached hereto as Annex A, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined
in such document are used herein as therein defined.
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Any notice by the Company to the Underwriter pursuant to this Terms
Agreement shall be sufficient if given in accordance with Section 11 of the
Basic Terms addressed to: ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President, which shall, for all
purposes of this Agreement, be the "Representative".
Very truly yours,
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
________________________
(By ▇▇▇▇▇▇▇, Sachs & Co.)
Accepted:
APACHE CORPORATION
By: _______________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
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Annex A
[Basic Terms for
Common Stock]
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Schedule A
List of persons subject to lock-up
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G. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
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A.D. ▇▇▇▇▇▇▇, Jr.
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APACHE CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT BASIC TERMS
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APACHE CORPORATION
Common Stock
UNDERWRITING AGREEMENT BASIC TERMS
Apache Corporation, a Delaware corporation (the "Company"), may issue
and sell from time to time its shares of common stock, $1.25 par value per share
(the "Common Stock") and related rights to purchase its Common Stock (the
"Rights"). Each issue of Common Stock may vary as set forth in the Terms
Agreement (as defined below) relating thereto.
Whenever the Company determines to make an offering of Common Stock and
Rights, the Company will enter into an agreement (the "Terms Agreement")
providing for the sale of such securities (the "Offered Securities") to, and the
purchase and offering thereof by, one or more underwriters specified in the
Terms Agreement (the "Underwriters", which term shall include any Underwriters
substituted pursuant to Section 10 hereof). The Terms Agreement relating to the
Offered Securities shall specify the names of the Underwriters participating in
such offering, the amount of Offered Securities which each such Underwriter
severally agrees to purchase, the price at which the Offered Securities are to
be purchased by the Underwriters from the Company, the initial public offering
price, the time and place of delivery and payment, such other information as is
indicated in Exhibit A hereto and such other terms as are agreed by the Company
and the Underwriters. In addition, each Terms Agreement shall specify whether
the Company has agreed to grant to the Underwriters an option to purchase
additional Offered Securities to cover over-allotments, if any, and the number
of Offered Securities subject to such option described in Section 2(b) hereof
(the "Option Securities"). As used herein, the term "Offered Securities" shall
include the Option Securities, if any, and the number of firm shares of Common
Stock and Rights specified in the Terms Agreement (the "Firm Securities"); and
"Representatives" shall mean the Underwriter or Underwriters so specified in the
Terms Agreement or, if no Underwriter is so specified, shall mean each
Underwriter. The Terms Agreement may be in the form of an exchange of any
standard form of written telecommunication between the Underwriters and the
Company. The offering of the Offered Securities will be governed by the Terms
Agreement, as supplemented hereby (collectively, this "Agreement"), and this
Agreement shall inure to the benefit of and be binding upon each Underwriter
participating in the offering of the Offered Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-75633) for the registration of Common Stock and Rights and the Company's
preferred stock, depositary shares and debt securities, including the Offered
Securities, under the Securities Act of 1933, as amended (the
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"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), and has prepared and filed such amendments thereto as may
have been required to the date hereof. Such registration statement, as amended,
has been declared effective by the Commission. As provided in Section 3(a), a
prospectus supplement reflecting the terms of the Offered Securities, the terms
of the offering thereof and the other matters set forth therein has been
prepared and will be filed pursuant to Rule 424 under the 1933 Act. Such
prospectus supplement, in the form first filed after the date of the Terms
Agreement pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement". Such registration statement, as amended at the date of the Terms
Agreement, including the exhibits thereto and the documents incorporated by
reference therein, is herein called the "Registration Statement". Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The basic prospectus included in the Registration
Statement, as supplemented by the Prospectus Supplement, is herein called the
"Prospectus", except that, if such basic prospectus is amended or supplemented
on or prior to the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to the basic prospectus
as so amended or supplemented and as supplemented by the Prospectus Supplement
or, if any revised prospectus shall be provided to the Underwriters by the
Company for their use in connection with the offering of the Offered Securities
which differs from such basic prospectus and Prospectus Supplement (whether or
not required to be filed by the Company pursuant to Rule 424), the term
"Prospectus" shall refer to such revised prospectus (including any prospectus
supplement) from and after the time it is first provided to the Underwriters for
such use, in either case including the documents filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), that are incorporated by reference therein.
SECTION 1. Representations and Warranties. The Company represents and
warrants to each Underwriter named in the Terms Agreement as of the date thereof
and as of the Closing Time referred to in Section 2(c) hereof, and as of each
Date of Delivery (if any) referred to in Section 2(b) hereof (in each case, a
"Representation Date"), as follows:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Delaware with corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company
is duly qualified as a foreign corporation to transact
business and is in good standing in the State of Texas and in
each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
to so qualify and be in good standing would not have a
material adverse effect on the condition, financial or
otherwise, or the results of operations, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise.
(b) Each "significant subsidiary" of the Company as defined in
Rule 405 of Regulation C of the 1933 Act Regulations
(collectively, the "Significant
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Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure to so qualify and be in good standing would
not have a material adverse effect on the condition, financial
or otherwise, or the results of operations, business affairs
or business prospects of the Company and its subsidiaries
considered as one enterprise; and, except as described in the
Prospectus, all of the issued and outstanding capital stock of
each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, except
for directors' qualifying shares (if applicable), is owned by
the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(c) The Company meets the requirements for use of Form S-3
under the 1933 Act. Each of the Registration Statement and any
Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the
Commission for additional information has been complied with.
(d) There are no contracts, agreements or understandings
between the Company or any of its subsidiaries, on the one
hand, and any person, on the other hand, granting such person
the right to require the Company or any of its subsidiaries to
file a registration statement under the 1933 Act with respect
to any securities (other than contractual obligations by the
Company to file registration statements on Form S-8 covering
issuances of Common Stock pursuant to its employee or director
stock, bonus or compensation plans) or to require the Company
or any of its subsidiaries to include such securities in any
registration statement filed by the Company under the 1933 Act
or in any public offering of securities.
(e) At the time the Registration Statement and the Rule 462(b)
Registration Statement, if any, became effective and as of
each Representation Date, the Registration Statement and the
Rule 462(b) Registration Statement, if any, complied and will
comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act and the
rules and regulations of the Commission promulgated
thereunder; the Registration Statement and the Rule 462(b)
Registration Statement, if any, each at the time it became
effective, did not, and at each time thereafter at which any
amendment to the Registration Statement becomes effective or
any Annual Report on Form 10-K is filed by the Company with
the Commission and as of each Representation Date, will not,
contain an untrue statement of a material fact or omit to
state a
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material fact required to be stated therein or necessary to
make the statements therein not misleading; and the
Prospectus, as of each Representation Date, does not and will
not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that
the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration
Statement and the Rule 462(b) Registration Statement, if any,
or the Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement
and the Rule 462(b) Registration Statement, if any, or the
Prospectus.
(f) The documents incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the
Commission, complied or when so filed will comply, as the case
may be, in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission
promulgated thereunder (the "1934 Act Regulations"), and, when
read together and with the other information in the
Prospectus, did not and will not include an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under
which they were or are made, not misleading.
(g) The accountants who certified the financial statements
included or incorporated by reference in the Registration
Statement and the Prospectus are independent public
accountants with respect to the Company as required by the
1933 Act and the 1933 Act Regulations.
(h) The financial statements and any supporting schedules of
the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the
Company and its subsidiaries as of the dates indicated and the
consolidated results of their operations for the periods
specified; except as stated therein, said financial statements
have been prepared in conformity with U.S. generally accepted
accounting principles applied on a consistent basis; the
supporting schedules included or incorporated by reference in
the Registration Statement and the Prospectus present fairly
the information required to be stated therein; and the pro
forma financial statements and the related notes thereto, if
any, included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(i) The petroleum engineers who have consented to being named
as having reviewed certain reserve data included or
incorporated by reference in the
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Prospectus are independent engineers with respect to the
Company and its subsidiaries.
(j) This Agreement has been duly authorized, executed and
delivered by the Company and, upon execution and delivery by
the Underwriters, will be a valid and legally binding
agreement of the Company.
(k) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus (except for
issuances, if any, described in the Prospectus, pursuant to
this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options
referred to in the Prospectus); the shares of issued and
outstanding capital stock set forth therein have been duly
authorized and validly issued and are fully paid and
non-assessable; and the Offered Securities conform to all
statements relating thereto contained in the Prospectus and
such statements conform to the provisions of the instruments
defining the same.
(l) The Offered Securities have been duly and validly
authorized for issuance, offer and sale pursuant to this
Agreement and the applicable Terms Agreement and, when issued
and delivered pursuant to the provisions of this Agreement and
the applicable Terms Agreement against payment of the
consideration therefor, the Offered Securities will be validly
issued, fully paid and non-assessable; the Rights have been
duly and validly authorized for issuance by the Company in
accordance with the Rights Agreement, dated as of January 31,
1996, between the Company and Norwest Bank Minnesota, N.A.;
and the issuance of the Offered Securities will not be subject
to any preemptive or similar rights.
(m) Since the respective dates as of which information is
given in the Registration Statement, any Rule 462(b)
Registration Statement and the Prospectus, except as may
otherwise be stated therein or contemplated thereby, (1) there
has been no material adverse change in the condition,
financial or otherwise, or in the results of operations,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and (2) there have
been no material transactions entered into by the Company or
any of its subsidiaries other than those in the ordinary
course of business, and (3) except for regular dividends on
the Common Stock and the Company's preferred stock, there has
been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(n) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a
party or by which it or any of them or their properties may be
bound, where the consequences of such violation or default
would have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business
affairs or business
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prospects of the Company and its subsidiaries considered as
one enterprise; and the execution and delivery of this
Agreement and the Terms Agreement and the consummation of the
transactions contemplated herein and therein have been duly
authorized by all necessary corporate action of the Company
and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound or to which
any of the property or assets of the Company or any subsidiary
thereof is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the
Company or any law, administrative regulation or
administrative or court order or decree, where the
consequences of such conflict, breach, creation, imposition,
violation or default would have a material adverse effect on
the condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(o) No consent, approval, authorization, order, decree,
registration or qualification of or with any court or
governmental agency or body is required for the consummation
by the Company of the transactions contemplated by this
Agreement or in connection with the sale of Offered Securities
hereunder, except such as have been obtained or rendered, as
the case may be, or as may be required under state securities
or Blue Sky laws.
(p) Except as may be included or incorporated by reference in
the Registration Statement and the Prospectus, there is no
action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending
or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries which might,
in the opinion of the Company, result in any material adverse
change in the condition, financial or otherwise, or in the
results of operations, business affairs or business prospects
of the Company and its subsidiaries considered as one
enterprise, or could reasonably be expected to materially and
adversely affect the properties or assets thereof or could
reasonably be expected to materially and adversely affect the
consummation of this Agreement or the Terms Agreement or any
transaction contemplated hereby or thereby.
(q) There are no contracts or documents of the Company or any
of its subsidiaries which are required to be filed as exhibits
to the Registration Statement by the 1933 Act or by the 1933
Act Regulations which have not been so filed.
(r) Neither the Company nor any of its subsidiaries is in
violation of any law, ordinance, governmental rule or
regulation or court decree to which it may be subject or has
failed to obtain any license, permit, franchise or other
governmental authorization necessary to the ownership of its
property or to the conduct of its business, which violation or
failure would materially adversely affect the
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condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and
the Company and its subsidiaries own or possess or have
obtained all governmental licenses, permits, consents, orders,
approvals and other authorizations and have properly filed
with the appropriate authorities all notices, applications and
other documents necessary to lease or own their respective
properties and to carry on their respective businesses as
presently conducted, except where the failure to possess such
licenses or authorizations or make such filings would not
materially adversely affect the condition, financial or
otherwise, or the results of operations, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise.
(s) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate trademarks, service
marks and trade names necessary to conduct the business now
operated by them, except as set forth or incorporated by
reference in the Registration Statement or except where the
failure to own or possess the same would not materially
adversely affect the condition, financial or otherwise, or the
results of operations, business affairs or business prospects
of the Company and its subsidiaries considered as one
enterprise, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any
trademarks, service marks or trade names which, singly or in
the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially adversely affect the
condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(t) The Company and its subsidiaries have legal, valid and
defensible title to all of their interests in oil and gas
properties and to all other real and personal property owned
by them and any other real property and buildings held under
lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases, in each case
free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances and defects of
any kind, except such as (1) are described in the Prospectus,
(2) liens and encumbrances under operating agreements,
unitization and pooling agreements, production sales
contracts, farm-out agreements and other oil and gas
exploration and production agreements, in each case that
secure payment of amounts not yet due and payable for the
performance of other inchoate obligations and are of a scope
and nature customary in connection with similar drilling and
producing operations, or (3) those that do not have a material
adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise.
(u) The information underlying the estimates of oil and gas
reserves as described in the Prospectus is complete and
accurate in all material respects (or, with regard to any
information underlying the estimates prepared by any petroleum
engineers retained by the seller of such oil and gas reserves,
is, to the best knowledge of the
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Company after reasonable investigation, complete and accurate
in all material respects); other than production of the
reserves in the ordinary course of business and intervening
product price fluctuations described in the Prospectus, the
Company is not aware of any facts or circumstances that would
result in a material adverse change in the reserves or the
present value of future net cash flows therefrom as described
in the Prospectus. Estimates of such reserves and present
values comply in all material respects with the applicable
requirements of Regulation S-X and Industry Guide 2 under the
1933 Act.
(v) Neither the Company nor any of its subsidiaries is
required to be registered under the Investment Company Act of
1940, as amended (the "1940 Act").
(w) The Company has complied and will comply with the
provisions of Florida H.B. 1771, codified as Section 517.075
of the Florida Statutes, 1987, as amended, and all regulations
promulgated thereunder relating to issuers doing business in
Cuba.
(x) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or
any of its subsidiaries has a material relationship to
evaluate the extent to which the business or operations of the
Company or any of its subsidiaries will be affected by the
Year 2000 Problem. As a result of such review, the Company has
no reason to believe, and does not believe, that the Year 2000
Problem will have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise or result in any
material loss or interference with the Company's business or
operations. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in
the receipt, transmission, processing, manipulation, storage,
retrieval, retransmission or other utilization of data or in
the operation of mechanical or electrical systems of any kind
will not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1,
2000.
(y) Except as described in the Registration Statement, (1)
neither the Company nor any of its subsidiaries is in
violation of any local or foreign laws or regulations relating
to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"),
except such violations as would not, singly or in the
aggregate, have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business
affairs or business prospects of the Company and its
subsidiaries considered as
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one enterprise, and (2) to the best of the Company's
knowledge, there are no events or circumstances that could
reasonably be expected to be the basis of an order for
clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to
any Hazardous Materials or the violation of any Environmental
Laws, which, singly or in the aggregate, could reasonably be
expected to have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
Any certificate signed by any director or officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company as to the matters covered
thereby.
SECTION 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase the Offered
Securities pursuant to this Agreement shall be deemed to have been made on the
basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein and therein set forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the Terms Agreement, an option to the
Underwriters named in the Terms Agreement, severally and not jointly, to
purchase up to the number of Option Securities set forth therein at the same
price per share as is applicable to the Offered Securities plus accrued
dividends, if any. Such option, if granted, will expire 30 days after the date
of the Terms Agreement, and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Offered Securities upon
notice by the Representatives to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time and date of payment and delivery for such Option Securities. Any
such time and date of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days and not
earlier than two full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined, unless otherwise
agreed upon by the Representatives and the Company. If the option is exercised
as to all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase the proportion of the total
number of Option Securities then being purchased that the number of Firm
Securities each such Underwriter has agreed to purchase, as set forth in the
Terms Agreement, bears to the total number of Firm Securities, subject to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment of the purchase price for, and delivery of, the Firm
Securities to be purchased by the Underwriters shall be made at the place set
forth in the Terms Agreement, or at such other place as shall be agreed upon by
the Representatives and the Company, on the third business day (unless postponed
in accordance with the provisions of Section 10) following the date of the Terms
Agreement or such other time as shall be agreed upon by the Underwriters and
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the Company (such time and date being referred to as the "Closing Time"). Except
as specified in the Terms Agreement, payment shall be made to the Company by
wire transfer in same day funds to the account of the Company specified in the
Terms Agreement against delivery to the Underwriters for the respective accounts
of the Underwriters of the Firm Securities to be purchased by them. In addition,
in the event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates
representing, such Option Securities shall be made at such place as shall be
agreed upon by the Representatives and the Company, on each Date of Delivery as
agreed by the Representatives and the Company. The Firm Securities and the
Option Securities, if any, shall be in such denominations and registered in such
names as the Underwriters may request in writing at least two business days
prior to the Closing Time or relevant Date of Delivery, as the case may be. The
Firm Securities and the Option Securities, if any, will be made available for
examination and packaging by the Representatives on or before the first business
day prior to the Closing Time or relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Immediately following the execution of the Terms
Agreement, the Company will prepare a Prospectus Supplement in
form approved by the Representatives setting forth the number
of Firm Securities, the names of the Underwriters and the
number of the Offered Securities which each severally and not
jointly has agreed to purchase, the price per share at which
the Offered Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the
selling concession and reallowance, if any, any Option
Securities, and such other information as the Representatives
and the Company deem appropriate in connection with the
offering of the Offered Securities. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission
for filing pursuant to Rule 424 of the 1933 Act Regulations
and will furnish to the Underwriters named therein as many
copies of the Prospectus (including the Prospectus Supplement)
as the Representatives shall reasonably request.
(b) The Company will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so
as to permit the completion of the distribution of the Offered
Securities as contemplated in this Agreement and in the
Prospectus. If, at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the
Offered Securities, any event shall occur or condition exist
as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to
amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered
to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly amend the Registration Statement and the
Prospectus, whether by filing documents
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pursuant to the 1934 Act or the 1933 Act or otherwise, as may
be necessary to correct such untrue statement or omission or
to make the Registration Statement and the Prospectus comply
with such requirements.
(c) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days
after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158
of the 1933 Act Regulations) covering each twelve month period
beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date"
(as defined in such Rule 158) of the Registration Statement
with respect to the sale of Offered Securities.
(d) While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities,
the Company will give the Representatives notice of its
intention to file any additional registration statement with
respect to the registration of additional Common Stock, any
amendment to the Registration Statement (including any filing
under Rule 462(b)) or any amendment or supplement to the
Prospectus, whether pursuant to the 1934 Act, the 1933 Act or
otherwise; will furnish the Underwriters with copies of any
such amendment or supplement or other documents proposed to be
filed a reasonable time in advance of such proposed filing or
use, as the case may be; and will not file any such amendment
or supplement or other documents in a form to which the
Representatives or counsel to the Underwriters reasonably
object.
(e) While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities,
the Company will notify the Representatives immediately, and
promptly confirm the notice in writing, of (i) the
effectiveness of any amendment to the Registration Statement,
(ii) the transmittal to the Commission for filing of any
supplement to the Prospectus or any document to be filed
pursuant to the 1934 Act which will be incorporated by
reference into the Registration Statement or the Prospectus,
(iii) the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus or the
Prospectus Supplement, (iv) any request by the Commission for
any amendment to the Registration Statement, or any amendment
or supplement to the Prospectus or for additional information,
(v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose and (vi)
any change in the rating assigned by any nationally recognized
statistical rating organization to any debt securities of the
Company or the public announcement by any nationally
recognized statistical rating organization that it has under
surveillance or review, with possible negative implications,
its rating of any debt securities of the Company. The Company
will make every reasonable effort to prevent the issuance of
any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(f) Prior to 10:00 A.M, New York City time, on the business
day next succeeding the date of this Agreement and from time
to time, the Company will deliver to
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each Underwriter one conformed copy of the Registration
Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in
the Prospectus) and will also deliver to the Representatives
as many conformed copies of the Registration Statement as
originally filed and of each amendment thereto (without
exhibits) as the Representatives may reasonably request. While
the Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Offered Securities, the Company
will furnish to the Representatives as many copies of the
Prospectus (including the Prospectus Supplement) as the
Representatives reasonably request.
(g) The Company has delivered to each Underwriter, without
charge, as many copies of each preliminary Prospectus
Supplement as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act.
(h) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Offered Securities for offering
and sale under the applicable securities laws of such states
and other jurisdictions of the United States as the
Underwriters may designate, and will maintain such
qualifications in effect for as long as may be required for
the distribution of the Offered Securities; provided, however,
that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so
qualified. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which
the Offered Securities have been qualified as above provided.
The Company will promptly advise the Representatives of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Securities for
sale in any such state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(i) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Offered Securities, will file all
documents required to be filed with the Commission pursuant to
Sections 13, 14 or 15(d) of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act
Regulations.
(j) If specified in the Terms Agreement, during the 90-day
period following the date of the Terms Agreement, the Company
will not, without the prior written consent of the
Representatives, (i) directly or indirectly, issue, offer,
pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or
dispose of any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common
Stock or any such substantially similar securities or file any
registration statement under the 1933 Act with respect to any
of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the
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economic consequence of ownership of the Common Stock, whether
any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence
shall not apply to (A) the Offered Securities, (B) any shares
of Common Stock issued by the Company upon the exercise of an
option or warrant or the conversion of a security outstanding
on the date hereof and referred to in the Prospectus, (C) any
shares of Common Stock issued or options to purchase Common
Stock granted pursuant to existing employee benefit plans of
the Company referred to in the Prospectus, (D) any shares of
Common Stock issued pursuant to any non-employee director
stock plan or dividend reinvestment plan, (E) any shares of
Convertible Preferred Stock or Common Stock or Depositary
Shares issued pursuant to the Company's existing dividend
reinvestment program, or (F) any shares of Common Stock
issuable in connection with any asset purchase or other
transaction described in the Prospectus.
(k) The Company will use the net proceeds received by it from
the sale of the Offered Securities in the manner specified in
the Prospectus under "Use of Proceeds".
(l) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) and the Company
shall at the time of filing either pay the Commission a filing
fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the 1933 Act.
SECTION 4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase Offered Securities pursuant to this Agreement are
subject to the accuracy of the representations and warranties on the part of the
Company herein contained, to the accuracy of the statements which the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance by the Company of all of its covenants and other obligations
hereunder and under the Terms Agreement, and to the following further
conditions:
(a) The Registration Statement and any Rule 462(b)
Registration Statement have become effective and, at the
Closing Time, no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration
Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission
and any request on the part of the Commission for additional
information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed
with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have
been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to
rely upon Rule 434, a term sheet shall have been filed with
the Commission in accordance with Rule 424(b).
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(b) At the Closing Time, the Representatives shall have
received:
(1) The favorable opinion, dated as of the Closing
Time, of Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel to the
Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) This Agreement and the Terms Agreement have been
duly authorized, executed and delivered by the Company.
(iii) The Offered Securities have been duly and
validly authorized for issuance, offer and sale pursuant to
this Agreement and the applicable Terms Agreement and, when
issued and delivered pursuant to the provisions of this
Agreement and the applicable Terms Agreement against payment
of the consideration therefor, will be validly issued, fully
paid and non-assessable; the Rights have been duly and validly
authorized for issuance by the Company in accordance with the
Rights Agreement, dated as of January 31, 1996, between the
Company and Norwest Bank Minnesota, N.A.; and the issuance of
the Offered Securities will not be subject to any preemptive
or similar rights.
(iv) The Offered Securities conform in all material
respects to the statements relating thereto in the Prospectus;
and the statements in the Prospectus under the captions
"Description of Capital Stock -- Common Stock" and
"Description of Capital Stock -- Stockholder Rights Plan",
insofar as they purport to summarize certain provisions of
instruments specifically referred to therein, are fair and
correct summaries of such provisions.
(v) The Registration Statement, including any Rule
462(b) Registration Statement, has been declared effective by
the Commission under the 1933 Act and, to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(vi) The execution and delivery of this Agreement and
the Terms Agreement, the issuance of Offered Securities
covered by the Terms Agreement, the incurrence of the
obligations set forth herein and therein, and the consummation
of the transactions herein and therein contemplated do not and
will not conflict with or constitute or result in a breach of,
or default under, the Company's certificate of incorporation
or by-laws, each as in effect at the applicable Closing Time,
of the Company.
(vii) The Registration Statement, including any Rule
462(b) Registration Statement, and the Prospectus (except for
financial statements and engineering reports and other
financial or engineering data, as to which such counsel need
not express any opinion), as of their respective effective or
issue dates, appeared on
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their face to be appropriately responsive to the requirements
of the 1933 Act and the 1933 Act Regulations.
In rendering such opinion, counsel for the Company may rely as
to matters of fact upon the representations of officers of the
Company contained in any certificate delivered to such counsel
and certificates of public officials, which certificates shall
be attached to or delivered with such opinion. Such opinion
shall be limited to the General Corporation Law of the State
of Delaware, the laws of the State of Texas and the laws of
the United States of America.
(2) The favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇,
General Counsel of the Company, to the effect that:
(i) The Company has the corporate power and authority
to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and
perform its obligations under this Agreement and the Terms
Agreement.
(ii) To the best knowledge and information of such
counsel, the Company is duly qualified as a foreign
corporation to transact business and is in good standing in
the State of Texas and in each other jurisdiction in which
such qualification is required, except where the failure to so
qualify and be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise.
(iii) Each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and conduct its business as
described in the Prospectus, and, to the best of such
counsel's knowledge and information, is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify and be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and
all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable, and is owned by the
Company, directly or indirectly, free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity (except
as described in the Prospectus).
(iv) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus (except
for issuances, if any, described in the Prospectus, pursuant
to this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options
referred to in the Prospectus); the shares of issued
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and outstanding capital stock set forth therein have been duly
authorized and validly issued and are fully paid and
non-assessable; and the Offered Securities conform to all
statements relating thereto contained in the Prospectus and
such statements conform to the provisions of the instruments
defining the same.
(v) The Offered Securities have been duly and validly
authorized for issuance, offer and sale pursuant to this
Agreement and the applicable Terms Agreement and, when issued
and delivered pursuant to the provisions of this Agreement and
the applicable Terms Agreement against payment of the
consideration therefor, will be validly issued, fully paid and
non-assessable; the Rights have been duly and validly
authorized for issuance by the Company in accordance with the
Rights Agreement, dated as of January 31, 1996, between the
Company and Norwest Bank Minnesota, N.A.; and the issuance of
the Offered Securities will not be subject to any preemptive
or similar rights.
(vi) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (except for
financial statements, supporting schedules and other financial
or statistical information as to which no opinion need be
rendered) appeared on its face to be appropriately responsive
when so filed to the requirements of the 1934 Act and the 1934
Act Regulations.
(vii) Neither the Company nor any of its subsidiaries
is required to be registered under the 1940 Act.
(viii) No consent, approval, authorization, order,
decree, registration or qualification of or with any court or
governmental authority or agency is required that has not been
obtained in connection with the consummation by the Company of
the transactions contemplated by this Agreement, except such
as have been obtained or rendered, as the case may be, or as
may be required under the 1933 Act, the 1933 Act Regulations,
the 1934 Act, the 1934 Act Regulations or state securities
laws; and the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein and
therein have been duly authorized by all necessary corporate
action of the Company and, to the best knowledge and
information of such counsel, will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it
or any of them may be bound or to which any of the property or
assets of the Company or any such subsidiary is subject, nor
will such action result in any violation of the provisions of
the charter or by-laws of the Company or any applicable law,
administrative regulation or, to the best knowledge and
information of such counsel, administrative or court order or
decree.
(ix) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or by-laws.
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(x) To the best knowledge and information of such
counsel, neither the Company nor any of its subsidiaries is in
violation of any law, ordinance, governmental rule or
regulation or court decree to which it may be subject or has
failed to obtain any license, permit, franchise or other
governmental authorization necessary to the ownership of its
property or to the conduct of its business, which violation or
failure would materially adversely affect the condition,
financial or otherwise, or the results of operations, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and, to the best
knowledge and information of such counsel, the Company and its
subsidiaries own or possess or have obtained all governmental
licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own their respective
properties and to carry on their respective businesses as
presently conducted, except where the failure to obtain such
authorizations would not have a material adverse effect on the
condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xi) To the best of such counsel's knowledge and
information, there is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending, or threatened against or affecting, the
Company or any of its subsidiaries, which would be reasonably
expected to result in any material adverse change in the
condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, or
would materially and adversely affect the properties or assets
thereof or would materially and adversely affect the
consummation of this Agreement and the Terms Agreement or any
transaction contemplated hereby or thereby.
(xii) To the best of such counsel's knowledge and
information, there are no contracts or other documents
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto, the descriptions thereof or
references thereto are correct in all material respects, and,
to the best of such counsel's knowledge and information, no
default exists in the due performance or observance of any
material obligation, agreement, covenant or conditions
contained in any contract, or other documents so described,
referred to, filed or incorporated by reference where the
consequences of such default would have a material adverse
effect on the condition, financial or otherwise, or the
results of operations, business affairs or business prospects
of the Company and its subsidiaries considered as one
enterprise.
In rendering such opinion, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ may
rely (i) as to matters of fact upon the representations of
officers of the Company contained in any certificate delivered
to such counsel and certificates of public officials, (ii) as
to matters of law governed by laws other than the General
Corporation Law of the State of Delaware, the laws of the
State of Texas and the laws of the United States of America,
such opinions of counsel admitted to practice in the
applicable
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jurisdictions as ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ deems appropriate, and (iii)
as to matters related to the capital stock of the Company and
each of the Company's Significant Subsidiaries issued prior to
March 30, 1993, the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, former
Senior Vice President and General Counsel of the Company,
dated March 30, 1993, which certificates and opinions shall be
attached to or delivered with such opinion. Such opinion shall
be limited to the General Corporation Law of the State of
Delaware, the laws of the State of Texas and the laws of the
United States of America.
(3) The favorable opinion, dated as of the Closing
Time, of ▇▇▇▇▇ & Wood LLP, counsel for the Underwriters, with respect
to the matters set forth in clauses (i) to (v), inclusive, and (vii )
of subsection (b)(1) of this Section.
(4) In giving their opinions required by subsection
(b)(1), (b)(2) and (b)(3), respectively, of this Section ▇, ▇▇▇▇▇, ▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇ LLP
shall each additionally state that in the course of the preparation of
the Registration Statement and the Prospectus such counsel has
considered the information set forth therein in light of the matters
required to be set forth therein, and has participated in conferences
with officers and representatives of the Company, including its
independent public accountants, during the course of which the contents
of the Registration Statement and the Prospectus and related matters
were discussed. Such counsel need not independently check the accuracy
or completeness of, or otherwise verify, and accordingly need not pass
upon, and accordingly need not assume responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, and such counsel may, in good
faith, rely as to materiality, to the extent deemed appropriate, upon
the judgment of officers and representatives of the Company. Such
counsel shall additionally state that, however, as a result of such
consideration and participation, nothing has come to such counsel's
attention which causes such counsel to believe that the Registration
Statement, at the time it became effective (or, if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed
by the Company with the Commission subsequent to the effectiveness of
the Registration Statement, then at the time such amendment became
effective or at the time of the most recent such filing, as the case
may be), contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto, at the time the
Prospectus was issued, at the time any such amendment or supplement was
issued, or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to
the financial statements and engineering reports and other financial or
engineering data contained in the Registration Statement (including the
Prospectus)).
(c) At the Closing Time, there shall not have been, since the
date of the Terms Agreement or since the respective dates as
of which information is given in the
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Registration Statement and the Prospectus, any material
adverse change in the condition, financial or otherwise, or in
the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course
of business, and the Representatives shall have received a
certificate of the Chief Executive Officer, President or a
Vice President and the Treasurer, the Assistant Treasurer, the
principal financial officer or principal accounting officer of
the Company, dated as of the Closing Time, to the effect that
(i) there has been no such material adverse change with
respect to the Company and its subsidiaries, (ii) the
representations and warranties of the Company contained in
Section 1 are true and correct as of the Closing Time, (iii)
the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate and (iv)
no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been
issued and no proceedings for that purpose have been initiated
or threatened by the Commission. As used in this Section 4(c),
the term "Prospectus" means the Prospectus in the form first
provided to the applicable Underwriter or Underwriters for use
in confirming sales of the Offered Securities.
(d)(1) On the date of the Terms Agreement, the Underwriters
shall have received a letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated
as of the date thereof and in form and substance satisfactory
to the Underwriters, to the effect that:
(i) They are independent accountants with respect to
the Company and its subsidiaries within the meaning of the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations.
(ii) It is their opinion that the consolidated
financial statements and supporting schedule(s) included or
incorporated by reference in the Registration Statement and
the Prospectus and audited by them and covered by their
opinions therein comply in form in all material respects with
the applicable accounting requirements of the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest
available interim financial statements of the Company and its
indicated subsidiaries, a reading of the minute books of the
Company and such subsidiaries since the end of the most recent
fiscal year with respect to which an audit report has been
issued, inquiries of and discussions with certain officials of
the Company and such subsidiaries responsible for financial
and accounting matters with respect to the unaudited
consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus and
the latest available interim unaudited financial statements of
the Company and its subsidiaries, and such other inquiries and
procedures as may be specified in such letter, and on the
basis of such inquiries and procedures, nothing came to their
attention that caused them to believe that: (A) any material
modifications should be made to the unaudited consolidated
financial statements
20
26
of the Company and its subsidiaries included or incorporated
by reference in the Registration Statement and the Prospectus
for them to be in conformity with generally accepted
accounting principles in the United States, (B) the unaudited
consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations or
(C) at a specified date not more than three days prior to the
date of such letter, there was any change in the consolidated
capital stock, any increase in consolidated long-term debt or
any decrease in the consolidated net current assets or
consolidated net assets of the Company and its subsidiaries,
in each case as compared with the amounts shown on the most
recent consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus or, during the
period from the date of such balance sheet to a specified date
not more than three days prior to the date of such letter,
there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated revenues or in
the total or per-share amounts of income before extraordinary
items or of net income of the Company and its subsidiaries,
except in all instances for changes, increases or decreases
that the Registration Statement and the Prospectus disclose
have occurred or may occur or except for such exceptions
enumerated in such letter as shall have been agreed to by the
Underwriters and the Company.
(iv) They have performed specified procedures, not
constituting an audit, set forth in their letter, based upon
which nothing came to their attention that caused them to
believe that the unaudited pro forma consolidated condensed
financial statements, if any, included or incorporated by
reference in the Registration Statement or the Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X and that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements.
(v) In addition to the audit referred to in their
opinions and the limited procedures referred to in clauses
(iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are
included or incorporated by reference in the Registration
Statement and the Prospectus and which are specified by the
Underwriters, and have found such amounts, percentages and
financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
(2) At the Closing Time, the Underwriters shall have
received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, a letter, dated as of the
Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (d)(1) of
this Section, except that the specified date referred to shall
be a date not more than three days prior to the Closing Time.
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27
(e) At the date of this Agreement, the Representatives shall
have received an agreement substantially in the form of
Exhibit B hereto signed by the persons, if any, listed on
Schedule A to the Terms Agreement.
(f) The Offered Securities at the Closing Time shall have been
duly listed, subject to notice of issuance, on the New York
Stock Exchange.
(g) At the Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to
pass upon the issuance and sale of the Offered Securities as
herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by
the Company in connection with the issuance and sale of the
Offered Securities as herein and in the Terms Agreement
contemplated shall be satisfactory in form and substance to
the Representatives.
(h) In the event that the Terms Agreement provides for Option
Securities and the Underwriters exercise their option pursuant
to Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the
Company contained herein and the statements in any
certificates furnished by the Company hereunder shall be true
and correct as of each Date of Delivery, and the Underwriters
shall have received:
(1) Unless the Date of Delivery is the Closing Time,
a certificate, dated such Date of Delivery, of the Chief
Executive Officer, President or a Vice President and the
Treasurer, the Assistant Treasurer, the principal financial
officer or principal accounting officer of the Company, in
their capacities as such, confirming that the certificate
delivered at the Closing Time pursuant to Section 4(c) hereof
remains true and correct as of such Date of Delivery.
(2) The favorable opinions of Mayor, Day, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, L.L.P., counsel for the Company, and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, General Counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Securities and
otherwise substantially to the same effect as the opinions
required by subsections (1) and (2) of Section 4(b) hereof.
(3) The favorable opinion of ▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise to the same
effect as the opinion required by subsection (3) to Section
4(b) hereof.
(4) Unless the Date of Delivery is the Closing Time,
a letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in form and substance
satisfactory to the Underwriters and dated such Date of
Delivery, substantially the same in scope and substance as the
letter furnished to the Underwriters at the Closing Time
pursuant to Section 4(d)
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28
hereof, except that the "specified date" in the letter shall
be a date not more than three days prior to such Date of
Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including:
(a) the preparation and filing of the Registration Statement,
including any Rule 462(b) Registration Statement, and all
amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) the preparation, filing, reproduction and delivery to the
Underwriters of this Agreement; any Agreement among
Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or
delivery of the Offered Securities;
(c) the preparation, printing, issuance and delivery of the
Offered Securities, including any stock or other transfer
taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Offered Securities;
(d) the fees and disbursements of the Company's accountants,
counsel and other advisors;
(e) except as otherwise provided in the Terms Agreement, the
reasonable fees and disbursements of counsel to the
Underwriters;
(f) the qualification of the Offered Securities under state
securities laws in accordance with the provisions of Section
3(k) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue
Sky or Legal Investment Survey;
(g) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of each preliminary
Prospectus Supplement, the Prospectus and any amendments or
supplements thereto, and the delivery by the Underwriters of
the Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the
Offered Securities;
(h) all fees and disbursements of any transfer and paying
agent;
(i) any fees charged by nationally recognized statistical
rating organizations for the rating of the Offered Securities;
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29
(j) the fees and expenses incurred in connection with any
listing of Offered Securities on a securities exchange;
(k) the fees and expenses incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(l) any out-of-pocket expenses of the Underwriters incurred
with the approval of the Company; and
(m) the cost of providing any CUSIP or other identification
numbers for the Offered Securities.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 4, 9 or 10, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, damage, joint or several, and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including any Rule
462(b) Registration Statement, including information deemed to be part
of the Registration Statement pursuant to Rule 430A(b) of the 1933 Act
Regulations, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
included in any preliminary Prospectus Supplement or the Prospectus (or
any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, unless such untrue statement or omission or
such alleged untrue statement or omission was made in reliance upon and
in conformity with written information furnished to the Company by an
Underwriter expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary Prospectus Supplement or the
Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, damage, joint or several, and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that such
settlement is effected with the written consent of the Company, which
consent shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and expenses of counsel chosen by such Underwriter),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any
24
30
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent (x) the
Company is required to do so under Section 6(c) below and (y) that any
such expense is not paid under (i) or (ii) above.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), any Rule 462(b) Registration Statement or
any preliminary Prospectus Supplement or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter expressly for use in the
Registration Statement (or any amendment thereto), any Rule 462(b) Registration
Statement or any preliminary Prospectus Supplement or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
each Underwriter shall have the right to employ counsel to represent jointly the
Underwriters and their respective controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Underwriters against the Company under this Section if, in the judgment
of any of the Underwriters, it is advisable for such Underwriter or Underwriters
and controlling persons to be jointly represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by the
Company. In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties (which
shall not unreasonably be withheld), settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation,
25
31
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) For purposes of this Section 6, all references to the Registration
Statement, any preliminary Prospectus Supplement or the Prospectus, or any
amendment or supplement to any of the foregoing, shall be deemed to include,
without limitation, any electronically transmitted copies thereof, including,
without limitation, any copies filed with the Commission pursuant to ▇▇▇▇▇.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Offered
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Offered Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Offered Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the total
commission or underwriting discount received by each Underwriter, in each case
as set forth on the cover of the Prospectus Supplement, bear to the aggregate
initial public offering price of the Offered Securities sold to or through such
Underwriter as set forth on such cover. The relative fault of the Company on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities sold to or through such Underwriter were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged
26
32
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the principal
amount of Offered Securities sold to or through each Underwriter and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person of an Underwriter, or by or on behalf of the Company, and
shall survive each delivery of and payment for any Offered Securities.
SECTION 9. Termination.
(a) The Representatives may terminate this Agreement immediately upon
notice to the Company, at any time at or prior to the Closing Time if (i) there
has been, since the date of the Terms Agreement or since the respective dates as
of which information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there shall have occurred any material
adverse change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or crisis
the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Offered Securities or enforce
contracts for the sale of the Offered Securities, or (iii) trading in any
securities of the Company has been suspended by the Commission or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium shall
have been declared by either Federal, New York or Texas authorities or if a
banking moratorium shall have been declared by the relevant authorities in the
country or countries of origin of any foreign currency or currencies in which
the Offered Securities are denominated or payable, or (iv) a downgrading shall
have occurred in the rating accorded to any debt securities or preferred stock
of the Company by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule 436(g)(2) under
the 1933 Act or such organization shall have publicly announced that it has
under survellience or review, with possible negative implications, its rating of
any debt securities or preferred stock of the Company, or (v) there shall have
come to the attention of the Representatives any facts that would cause them to
reasonably believe that the Prospectus, at the time it was required to be
delivered to a purchaser of the Offered Securities,
27
33
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not misleading. As used in
this Section 9, the term "Prospectus" means the Prospectus in the form first
provided to the applicable Underwriter or Underwriters for use in confirming
sales of the related Offered Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 5. Notwithstanding any such termination, (i)
the covenants set forth in Section 3(b), (d), and (e) with respect to any
offering of Offered Securities shall remain in effect so long as any Underwriter
owns any such Offered Securities purchased from the Company pursuant to this
Agreement and during the period when the Prospectus is required to be delivered
in connection with sales of the Offered Securities and (ii) the covenants set
forth in Section 3(c), (g), (h) and, if applicable, (i), the provisions of
Section 5, the indemnity agreement set forth in Section 6, the contribution
provisions set forth in Section 7 and the provisions of Sections 8, 11, 12 and
13 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters shall fail at
the Closing Time or a Date of Delivery to purchase the Firm Securities which it
or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), then the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, during such 24 hours the Representatives
shall not have completed such arrangements for the purchase of all of the
Defaulted Securities, then:
(a) if the amount of Defaulted Securities does not exceed 10%
of the amount of Firm Securities to be purchased on such date,
each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof
in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the amount of Defaulted Securities exceeds 10% of the
number of Firm Securities to be purchased on such date, this
Agreement or, with respect to any Date of Delivery which
occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Company to sell the Option
Securities to be purchased and sold on such Date of Delivery
shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company shall
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34
have the right to postpone the Closing Time or the relevant Date of Delivery, as
the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing, either delivered by hand, by mail or by telex, telecopier
or telegram, and any such notice shall be effective when received at the address
specified in this Section 11. Notices to the Underwriters shall be directed as
provided in the Terms Agreement. Notices to the Company shall be directed to
Apache Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Vice President and Treasurer, with a copy to: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. Any party to this Agreement may from time to time
designate another address to receive notice pursuant to this Agreement by notice
duly given in accordance with the terms of this Section 11.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Offered Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. Governing Law. This Agreement and all the rights and
obligations of the parties hereto shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such State.
SECTION 14. Counterparts. Any Terms Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts thereof shall constitute a single instrument.
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35
EXHIBIT A
TERMS AGREEMENT
Common Stock
___________ __, 19__
Apache Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: [Title]
Dear Sirs:
The undersigned underwriters (the "Underwriters") understand that
Apache Corporation (the "Company") proposes to issue and sell [number of] shares
of its common stock, $1.25 par value per share and related rights to purchase
common stock (the "Offered Securities"). Subject to the terms and conditions set
forth herein or incorporated by reference herein, the Underwriters offer to
purchase, severally and not jointly, the number of Offered Securities set forth
below opposite their respective names at $___ per share together with accrued
dividend thereon from __________, 19__ to the Closing Time:
Number of
Underwriter Firm Securities
---------------
Total
===============
The Offered Securities shall have the following terms:
Number of Firm Securities to be issued:
Maximum number of Option Securities to be issued:
Initial price to public:
Underwriting commission:
Purchase price
Closing Time:
Place of delivery and payment:
Company account for wire transfer of payment:
A-1
36
Lock-up pursuant to Section 3(j) of the
Underwriting Agreement Basic Terms: [yes] [no]
Lock-up pursuant to Section 4(e) of the
Underwriting Agreement Basic Terms: [yes] [no]
Note: If yes, see Schedule A hereto.
Securities exchanges, if any, on which application will be made to list the
Offered Securities:
Other terms, if any:
All the provisions contained in "Apache Corporation-Common
Stock--Underwriting Agreement Basic Terms" (the "Basic Terms"), filed as an
exhibit to the Registration Statement relating to the Offered Securities and
attached hereto as Annex A, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined.
Any notice by the Company to the Underwriters pursuant to this Terms
Agreement shall be sufficient if given in accordance with Section 11 of the
Basic Terms addressed to: [insert name and address of the lead manager or
managers or, if only one underwriter is a party hereto, of such firm] which
shall, for all purposes of this Agreement, be the "Representatives".
Very truly yours,
REPRESENTATIVE[S]
By:
[Acting for themselves and as
Representative[s] of the Underwriters]
Accepted:
APACHE CORPORATION
By:
------------------------------------
Title:
A-2
37
SCHEDULE A
List of Persons and Entities Subject to Lock-Up
38
EXHIBIT B
[Form of Lock-Up from Directors, Officers or
Other Stockholders Pursuant to Section 4(e)]
, 1999
[NAME OF LEAD UNDERWRITER]
[NAME(S) OF ANY CO-REPRESENTATIVE(S)]
as Representative(s) of the several
Underwriters to be named in the
within-mentioned Underwriting Agreement
Re: Proposed Public Offering by Apache Corporation
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director](1) of
Apache Corporation, a Delaware corporation (the "Company"), understands that
[name of lead underwriter][and [name(s) of co-representative(s), if any]]
propose(s) to enter into an Underwriting Agreement (the "Underwriting
Agreement") with the Company providing for the public offering of shares (the
"Securities") of the Company's common stock, par value $1.25 per share (the
"Common Stock") and related rights to purchase Common Stock. In recognition of
the benefit that such an offering will confer upon the undersigned as a
stockholder [and an officer and/or director]1 of the Company, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with each underwriter to be named in the
Underwriting Agreement that, during a period of 90 days from the date of the
Underwriting Agreement, the undersigned will not, without the prior written
consent of [name of lead underwriter], directly or indirectly, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any shares of the Company's
Common Stock or any securities convertible into or exchangeable or exercisable
for Common Stock or any such substantially similar securities, whether now owned
or hereafter acquired by the undersigned or with respect to which the
undersigned has or hereafter acquires the power of disposition, or file any
registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
Very truly yours,
Signature:
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Print Name:
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(1) Delete or revise background language as appropriate.
B-1
39
ANNEX A
[Apache Corporation--Common Stock--
Underwriting Agreement Basic Terms]
A-1