15,000,000 SHARES
PREMCOR INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
_______________, 2002
_______________, 2002
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Deutsche Bank Securities Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
Premcor Inc., a Delaware corporation (the "COMPANY"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"UNDERWRITERS") 15,000,000 shares of its common stock, par value $0.01 per share
(the "FIRM SHARES"). The Company also proposes to issue and sell to the several
Underwriters not more than an additional 2,250,000 shares of its common stock,
par value $0.01 per share, (the "ADDITIONAL SHARES") if and to the extent that
you, as Managers of the offering, shall have determined to exercise, on behalf
of the Underwriters, the right to purchase such shares of common stock granted
to the Underwriters in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "SHARES." The shares of
common stock, par value $0.01 per share, of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission
(the "COMMISSION") a registration statement (file no. 333-70314), including a
prospectus, relating to the Shares. The registration statement as amended at the
time it becomes effective, including the information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), is
hereinafter referred to as the "REGISTRATION STATEMENT"; the prospectus in the
form first used to confirm sales of Shares is hereinafter referred to as the
"PROSPECTUS." If the Company has filed an abbreviated registration statement to
register additional shares of Common Stock pursuant to Rule 462(b) under the
Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference
herein to the term
"REGISTRATION STATEMENT" shall be deemed to include such Rule 462 Registration
Statement.
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) the Registration
Statement and the Prospectus comply and, as amended or supplemented,
if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (iii) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph do not
apply to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) Each significant subsidiary (as such term is defined in
Rule 1-02(w) of Regulation S-X, as promulgated by the Commission)
(each, a "Significant Subsidiary") of the Company that is a
corporation has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction
of its incorporation; each Significant
2
Subsidiary that is a limited partnership has been duly organized and
is validly existing as a limited partnership in good standing under
the laws of its jurisdiction of formation; each Significant Subsidiary
has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole; all of the issued and
outstanding shares of capital stock of each of The Premcor Refining
Group Inc. and Premcor USA Inc. have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; all of the issued and outstanding
shares of capital stock of Port ▇▇▇▇▇▇ Finance Corp. ("PAFC") have
been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by Port ▇▇▇▇▇▇ ▇▇▇▇▇ Co. L.P.
("PACC"), free and clear of all liens, encumbrances, equities or
claims, other than a lien created by the Common Security Agreement,
dated as of August 19, 1999, among PAFC, PACC, Sabine River Holding
Corp. ("Sabine"), Neches River Holding Corp. ("Neches"), Bankers Trust
Company, Deutsche Bank AG, Winterthur International Insurance Company
Limited and HSBC Bank USA (the "Common Security Agreement"); all of
the issued and outstanding limited partnership interests and general
partnership interests of PACC have been duly and validly issued, and
are owned by Neches and Sabine, respectively, free and clear of all
liens, encumbrances, equities or claims, other than a lien created by
the Common Security Agreement; all of the issued and outstanding
shares of capital stock of Neches have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly by Sabine, free and clear of all liens, encumbrances,
equities or claims; and all of the issued and outstanding capital
stock of Sabine have been duly and validly authorized and issued, are
fully paid and non-assessable and 6,136,364 of such shares,
representing 90% of the issued and outstanding shares of capital stock
of Sabine, are owned directly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
3
(g) The shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or similar rights.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene (i) any provision of applicable law, (ii) the
amended and restated certificate of incorporation or the amended and
restated by-laws of the Company, (iii) any agreement or other
instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole, or
(iv) any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any subsidiary,
except in the case of clauses (i), (iii) and (iv) above for such
contraventions that would not reasonably be expected to have a
material adverse effect on the Company and its subsidiaries, taken as
a whole, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this
Agreement, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale
of the Shares.
(j) There has not occurred any material adverse change, or any
development that would reasonably be expected to result in a
prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
4
(l) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Securities
Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
(m) The Company is not, and after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus will not be, required to register as an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(n) The Company and its Significant Subsidiaries (i) are in
compliance with any and all applicable federal, state and local laws
and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii) have received
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses
as described in the Prospectus and (iii) are in compliance with all
terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, reasonably be expected to have
a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(o) Except as described in the Prospectus, there are no costs
or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws
or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties)
which would, singly or in the aggregate, reasonably be expected to
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(p) Except for rights that have been waived in writing or have
been described in the Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of
the Company or to require the Company to include such securities with
the Shares registered pursuant to the Registration Statement.
5
(q) Except in each case as described in the Prospectus,
subsequent to December 31, 2001, (i) the Company and its subsidiaries
have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the
ordinary course of business; (ii) the Company has not purchased any
of its outstanding capital stock, nor declared, paid or otherwise
made any dividend or distribution of any kind on its capital stock
other than ordinary and customary dividends; and (iii) there has not
been any material change in the capital stock, short-term debt or
long-term debt of the Company and its subsidiaries, except in each
case as described in the Prospectus.
(r) The Company and its Significant Subsidiaries have good and
marketable title in fee simple to all real property owned by them and
good and marketable title to all personal property owned by them, in
each case which is material to the business of the Company and its
subsidiaries and is free and clear of all liens, encumbrances and
defects, except for such liens, encumbrances and defects as (i) are
described in the Prospectus, (ii) are described in paragraph (d) of
this Section, or (iii) would not reasonably be expected to have a
material adverse effect on the Company and its subsidiaries, taken as
a whole, and do not interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries; and any
real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as
described in the Prospectus or except as would not reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(s) The Company and its Significant Subsidiaries own or
possess, or can acquire on reasonable terms, all material patents,
patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks and trade names currently employed by them in connection with
the business now operated by them, 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 of the
foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be
expected to have a material adverse affect on the Company and its
subsidiaries, taken as a whole.
6
(t) No labor dispute with the employees of the Company or any
of its Significant Subsidiaries exists, except as described in the
Prospectus, or, to the knowledge of the Company, is imminent which,
in either case, would reasonably be expected to have a material
adverse affect on the Company and its subsidiaries, taken as a whole;
and the Company is not aware of any existing, threatened or imminent
labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that would reasonably be expected to
have a material adverse affect on the Company and its subsidiaries,
taken as a whole.
(u) The Company and each of its Significant Subsidiaries are
insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; neither the
Company nor any of its Significant Subsidiaries has been refused any
insurance coverage sought or applied for; and neither the Company nor
any of its Significant Subsidiaries has any reason to believe that it
will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not reasonably be expected to have a material adverse affect on
the Company and its subsidiaries, taken as a whole, except as
described in the Prospectus.
(v) The Company and its Significant Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, and, with respect to any of the
foregoing, neither the Company nor any of its Significant
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected
to have a material adverse affect on the Company and its
subsidiaries, taken as a whole, except as described in the
Prospectus.
(w) The Company and each of its Significant Subsidiaries
maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
7
(x) Except as described in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), the Company has not sold, issued or distributed any
shares of Common Stock during the six-month period preceding the date
hereof, including any sales pursuant to Rule 144A under, or
Regulation D or S of, the Securities Act, other than shares issued
pursuant to employee benefit plans, qualified stock option plans or
other employee compensation plans or pursuant to outstanding options,
rights or warrants.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $______ a share (the "PURCHASE PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to 2,250,000
Additional Shares at the Purchase Price. If you, on behalf of the Underwriters,
elect to exercise such option, you shall so notify the Company in writing not
later than 30 days after the date of this Agreement, which notice shall specify
the number of Additional Shares to be purchased by the Underwriters and the date
on which such shares are to be purchased. Such date may be the same as the
Closing Date (as defined below) but not earlier than the Closing Date nor later
than ten business days after the date of such notice. Additional Shares may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter agrees, severally and
not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the
same proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the period
ending 180 days after the date of the Prospectus, (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 to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (ii) enter
8
into any swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the
Common Stock, whether any such 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 Shares to be sold hereunder, (B) the issuance by the
Company of shares of Common Stock upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof
of which the Underwriters have been advised in writing, (C) the
issuance of Common Stock or the grant of an option to purchase Common
Stock under our stock plans described in the Prospectus, (D) the
issuance of Common Stock in connection with the acquisition of another
company if recipients of the Common Stock agree to be bound for 180
days by the restrictions contained in this paragraph, and the filing
of a registration statement with respect thereto, or (E) transactions
by any person other than us, relating to shares of Common Stock or
other securities acquired in open market or other transactions after
the completion of this offering.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$_____________ a share (the "PUBLIC OFFERING PRICE") and to certain dealers
selected by you at a price that represents a concession not in excess of $______
a share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of $_____ a share, to any
Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on ____________, 2002, or at
such other time on the same or such other date, not later than _________, 2002,
as shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than _______, 2002, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "OPTION CLOSING DATE."
9
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of
the Company to sell the Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than _______ (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the
rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development which would reasonably be expected to result in a
prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms
and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in Section 5(a)(i)
above and to the
10
effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing
Date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is
validly existing and in good standing as a corporation under
the laws of the State of Delaware, with full corporate power
and authority to conduct its business as described in the
Registration Statement and the Prospectus;
(ii) All outstanding shares of Common Stock, including
the Shares, have been duly authorized, and all outstanding
shares of Common Stock have been, and upon payment and
delivery in accordance with this Agreement the Shares will be,
validly issued, fully paid and nonassessable.
(iii) The statements made in the Prospectus under the
caption "Description of Capital Stock", insofar as they
purport to constitute summaries of the terms of the Company's
capital stock (including the Shares), constitute accurate
summaries of the terms of such capital stock in all material
respects.
(iv) This Agreement has been duly authorized, executed
and delivered by the Company.
(v) The issue and sale of the Shares by the Company
and the execution, delivery and performance by the Company of
this Agreement will not breach or result in a default under
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument filed or incorporated by
reference as an exhibit to the Registration Statement, nor
will such action violate the Amended and Restated Certificate
of Incorporation or Amended and Restated By-laws of the
Company or any federal or New York statute or the Delaware
General Corporation Law or any rule or regulation that has
been issued pursuant to any federal or
11
New York statute or the Delaware General Corporation Law or
any judgement, order or decree known to us issued pursuant
to any federal or New York statute or the Delaware General
Corporation Law by any court or governmental agency or body
having jurisdiction over the Company or any of its
subsidiaries or any of their properties.
(vi) No consent, approval, authorization, order,
registration or qualification of or with any federal or New
York governmental agency or body or any Delaware governmental
agency or body acting pursuant to the Delaware General
Corporation Law or, to our knowledge, any federal or New York
court or any Delaware court acting pursuant to the Delaware
General Corporation Law is required for the issue and sale of
the Shares by the Company and the performance by the Company
of any of the provisions of this Agreement, except for the
registration of the Shares under the Act and the Exchange Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
of the Shares by the Underwriters.
(vii) The Registration Statement has become effective
under the Act and the Prospectus was filed within the required
time period pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act and, to our
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued or proceeding for that
purpose has been instituted or threatened by the Commission.
(viii) There are no preemptive or other rights under
federal or New York law or under the Delaware General
Corporation Law to subscribe for or purchase shares of the
Company's Common Stock. There are no preemptive or other
rights to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, any shares of the Company's
Common Stock pursuant to the Company's Amended and Restated
Certificate of Incorporation or Amended and Restated By-laws
or any agreement or other instrument filed or incorporated
by reference as an exhibit to the Registration Statement.
(ix) Each of The Premcor Refining Group Inc., Premcor
USA Inc., Port ▇▇▇▇▇▇ ▇▇▇▇▇ Company L.P. ("PACC"), Port ▇▇▇▇▇▇
Finance Corp., Sabine River Holding Corp. and Neches
12
River Holding Corp., which are subsidiaries of the Company,
has been duly incorporated (or duly organized as a limited
partnership, in the case of PACC) and is validly existing
and in good standing as a corporation (or as a limited
partnership in the case of PACC) under the laws of the State
of Delaware, and each such subsidiary has the corporate
power and authority (or partnership power and authority, in
the case of PACC) to conduct its business as described in
the Registration Statement and the Prospectus.
(x) To our knowledge, there are no statutes or
regulations or pending or threatened legal or governmental
proceedings required to be described in the Prospectus which
are not described as required, or any contracts or documents
of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement or incorporated by reference therein
which are not described and filed or incorporated by reference
as required.
(xi) The statements made in the Prospectus under the
caption "Certain U.S. Tax Consequences to Non-U.S. Holders"
insofar as they purport to constitute summaries of matters of
United States federal tax law and regulations or legal
conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material
respects.
(xii) To our knowledge, there are no contracts or
agreements between the Company and any person granting such
person the right (other than rights which have been waived or
satisfied) to require the Company to include any securities of
the Company owned or to be owned by such person in the
securities registered pursuant to the Registration Statement.
(xiii) The Company is not, and after giving effect to
the offering and sale of the Shares and the application of the
proceeds therefrom as discussed in the Prospectus will not be,
an "investment company" within the meaning of and subject to
regulation under the Investment Company Act of 1940, as
amended.
(xiv) such counsel (A) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical
data included therein as to which such counsel need not
express any opinion) comply as to form in all material
respects with the
13
Securities Act and the applicable rules and regulations of
the Commission thereunder, (B) has no reason to believe that
(except for financial statements and schedules and other
financial and statistical data as to which such counsel need
not express any belief) the Registration Statement and the
prospectus included therein at the time the Registration
Statement became effective contained any untrue statement of
a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading and (C) has no reason to believe that
(except for financial statements and schedules and other
financial and statistical data as to which such counsel need
not express any belief) the Prospectus contains any untrue
statement of a material fact 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.
(d) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President and General
Counsel of the Company, dated the Closing Date, to the effect that:
(i) The Company is duly qualified to transact business
and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or its leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(ii) Each of The Premcor Refining Group Inc. ("PRG"),
Premcor USA Inc. ("USA"), Port ▇▇▇▇▇▇ ▇▇▇▇▇ Company ("PACC"),
Port ▇▇▇▇▇▇ Finance Corp. ("PAFC"), Sabine River Holding
Corp. ("Sabine") and Neches River Holding Corp. ("Neches"),
which are subsidiaries of the Company, has been duly
qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or
its ownership or its leasing of property requires such
qualification, except to the extent that the failure to be
so qualified or be in good standing would not reasonably be
expected to have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(iii) All of the issued and outstanding shares of
capital stock of each of PRG and USA have been duly and
validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the
Company, free and clear of all
14
liens, encumbrances, equities or claims. All of the issued
and outstanding shares of capital stock of PAFC have been
duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by PACC, free and
clear of all liens, encumbrances, equities or claims, other
than a lien created by the Common Security Agreement, dated
as of August 19, 1999, among PAFC, PACC, Sabine, Neches,
Bankers Trust Company, as Collateral Trustee and Depositary
Bank, Deutsche Bank AG, New York Branch, as Administrative
Agent, Winterthur International Insurance Company Limited,
as Oil Payment Insurers Administrative Agent and insurer
under the Debt Service Reserve Insurance Guarantee and HSBC
Bank USA, as Capital Markets Trustee (the "Common Security
Agreement"). All of the issued and outstanding limited
partnership interests and general partnership interests of
PACC have been duly and validly issued, and are owned by
Neches and Sabine, respectively, free and clear of all
liens, encumbrances, equities or claims, other than a lien
created by the Common Security Agreement. All of the issued
and outstanding shares of capital stock of Neches have been
duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by Sabine, free and
clear of all liens, encumbrances, equities or claims. All of
the issued and outstanding capital stock of Sabine have been
duly and validly authorized and issued, are fully paid and
non-assessable and 6,136,364 of such shares, representing
90% of the issued and outstanding shares of capital stock of
Sabine, are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims.
(iv) The Company and its subsidiaries (A) are in
compliance with any and all applicable Environmental Laws,
as defined in the Underwriting Agreement, (B) have received
all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their
respective businesses and (C) are in compliance with all
terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or
in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(e) The Underwriters shall have received on the
Closing Date an
15
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, dated the Closing Date, to the effect that the
Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable and
the issuance of such Shares will not be subject to any
preemptive or similar rights, and covering the matters
referred to in Sections 5(c)(iii), 5(c)(iv) (and also
covering the statements in the Prospectus under
"Underwriters") and 5(c)(xiv) above.
With respect to Section 5(c)(xiv) above, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may state that their opinion and
belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the contents
thereof, but are without independent check or verification, except as
specified.
The opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇
described in Sections 5(c) and 5(d) above shall be rendered to the
Underwriters at the request of the Company and shall so state
therein.
(f) The Underwriters shall have received, on each of
the date hereof and the Closing Date, a letter dated the date
hereof or the Closing Date, as the case may be, in form and
substance satisfactory to the Underwriters, from Deloitte &
Touche LLP, independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
provided that the letter delivered on the Closing Date shall
use a "cut-off date" not earlier than the date hereof.
(g) The "lock-up" agreements, each substantially in
the form of Exhibit A hereto, between you and certain
shareholders, officers and directors of the Company relating
to sales and certain other dispositions of shares of Common
Stock or certain other securities, delivered to you on or
before the date hereof, shall be in full force and effect on
the Closing Date.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the delivery to you on the
Option Closing Date of such documents as you may reasonably request
with respect to the good standing of the Company, the due
authorization and issuance of the Additional Shares and other matters
related to the issuance of the Additional Shares.
6. Covenants of the Company. In further consideration of the
16
agreements of the Underwriters herein contained, the Company
covenants with each Underwriter as follows:
(a) To furnish to you, without charge, _____ signed
copies of the Registration Statement (including exhibits
thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits
thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business
day next succeeding the date of this Agreement and during the
period mentioned in Section 6(c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to
the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each
such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which you reasonably
object, and to file with the Commission within the applicable
period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the
public offering of the Shares as in the opinion of counsel for
the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names
and addresses you will furnish to the Company) to which
Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus, as amended or supplemented, will comply
with law.
(d) To endeavor to qualify the Shares for offer and
sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request, provided that
in connection therewith, the Company shall not be required to
qualify as a foreign corporation or consent to service of
process
17
in any jurisdiction where it has not already so qualified or
consented.
(e) To make generally available to the Company's
security holders and to you as soon as practicable an earning
statement covering the twelve-month period ending June 30,
2003 that satisfies the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder.
(f) Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is
terminated, to pay or cause to be paid all expenses incident
to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection
with the registration and delivery of the Shares under the
Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement,
any preliminary prospectus, the Prospectus and amendments and
supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses
related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable
thereon, (iii) the cost of printing or producing any Blue Sky
or Legal Investment memorandum in connection with the offer
and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares
for offer and sale under state securities laws as provided in
Section 6(d) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with
the Blue Sky or Legal Investment memorandum, (iv) all filing
fees and the reasonable fees and disbursements of one
counsel to the Underwriters incurred in connection with the
review and qualification of the offering of the Shares by
the National Association of Securities Dealers, Inc., (v)
all fees and expenses in connection with the preparation and
filing of the registration statement on Form 8-A relating to
the Common Stock and all costs and expenses incident to
listing the Shares on the New York Stock Exchange, (vi) the
cost of printing certificates representing the Shares, (vii)
the costs and charges of any transfer agent, registrar or
depositary, (viii) the costs and expenses of the Company
relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering
of the Shares, including, without limitation, expenses
associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior
approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such
consultants,
18
and one-half of the cost of any aircraft chartered in
connection with the road show, and (ix) all other costs and
expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except
as provided in this Section, Section 7 and the last
paragraph of Section 9 below, the Underwriters will pay all
of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares by them and any advertising
expenses connected with any offers they may make.
7. Indemnity and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), from and against any and all
losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating
to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to
any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as
then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by
law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or
liabilities, unless such failure is the result of noncompliance
by the Company with Section 7(a) hereof.
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing
19
indemnity from the Company to such Underwriter, but only with
reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter
through you expressly for use in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendments
or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to Section
7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall
promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the
indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses
of any indemnified party in connection with any proceeding
or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be
designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in the case of
parties indemnified pursuant to Section 7(a), and by the
Company, in the case of parties indemnified pursuant to
Section 7(b). The indemnifying party shall not be liable for
any settlement of any proceeding effected without its
written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without
the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such
proceeding.
20
(d) To the extent the indemnification provided for in
Section 7(a) or 7(b) is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand
from the offering of the Shares or (ii) if the allocation
provided by clause 7(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause
7(d)(i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the
Shares (before deducting expenses) received by the Company and
the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on
the cover of the Prospectus, bear to the aggregate Public
Offering Price of the Shares. The relative fault of the
Company on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this
Section 7(d) are several in proportion to the respective
number of Shares they have purchased hereunder, and not
joint.
(e) The Company and the Underwriters agree that it
would not be just or equitable if contribution pursuant to
this Section 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 that does not take
account of the equitable considerations referred to in Section
7(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such
21
action or claim. 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 Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7
are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at
law or in equity.
(f) The indemnity and contribution provisions
contained in this Section 7 and the representations,
warranties and other statements of the Company contained in
this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any person
controlling the Company or Blackstone (iii) acceptance of and
payment for any of the Shares.
8. Termination. The Underwriters may terminate this Agreement by
notice given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, the New York Stock
Exchange or the Nasdaq National Market, (ii) trading of any securities of the
Company or any of its subsidiaries shall have been suspended on any exchange or
in any over-the-counter market, (iii) a material disruption in securities
settlement, payment or clearance services in the United States shall have
occurred, (iv) any moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (v) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and which singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate
22
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares to
be purchased, and arrangements satisfactory to you and the Company for the
purchase of such Firm Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
23
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
24
Very truly yours,
Premcor Inc.
By:
---------------------------------
Name:
Title:
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Deutsche Bank Securities Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Acting severally on behalf of themselves and
the several Underwriters named in
Schedule I hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:
----------------------------------------
Name:
Title:
25
SCHEDULE I
NUMBER-OF-FIRM-SHARES
UNDERWRITER TO BE PURCHASED
------------------------------------------------------------------------- ------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.......................................
Credit Suisse First Boston Corporation..................................
▇▇▇▇▇▇▇, Sachs & Co. ...................................................
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ..............................................
Deutsche Bank Securities Inc............................................
Bear, ▇▇▇▇▇▇▇ & Co. ....................................................
[NAMES OF OTHER UNDERWRITERS]...........................................
-----------------------------------------
Total: ......................................................
=========================================