UNION PACIFIC RESOURCES GROUP INC.
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[ ]% Securities Due [ ]
UNDERWRITING AGREEMENT
New York, New York
April 8, 1999
1. Introduction. Union Pacific Resources Group Inc., a Utah
corporation (the "Company"), proposes to issue and sell from time to time
certain of its debt securities registered under the registration statement
referred to in Section 2(a) ("Registered Securities"). The Registered Securities
will be issued under an indenture (the "Indenture"), dated as of April 13, 1999,
between the Company, Union Pacific Resources Inc., an Alberta corporation, UPR
Capital Company, a Nova Scotia unlimited liability company, and the Bank of New
York as Trustee, in one or more series, which series may vary as to interest
rates, maturities, redemption provisions, selling prices and other terms, with
all such terms for any particular series of the Registered Securities being
determined at the time of sale. Particular series of the Registered Securities
will be sold pursuant to a Terms Agreement referred to in Section 3, for resale
in accordance with the terms of offering determined at the time of sale. The
Registered Securities involved in any such offering are hereinafter referred to
as the "Securities".
The firm or firms which agree to purchase the Securities are
hereinafter referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any, specified in a
Terms Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives", as
used in this Agreement, shall mean the Underwriters.
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus, or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed
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under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 12 hereof.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) Registration Statement. (i) The Company meets the
requirements for use of Form S-3 under the 1933 Act and has prepared
and filed with the Commission a registration statement (file number
333-62181) on Form S-3 for the registration under the 1933 Act of the
offering and sale of the Registered Securities. Such registration
statement has become effective. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to the Representatives. The Company
will next file with the Commission one of the following: (1) prior to
the Effective Date of such registration statement, a further amendment
to such registration statement, including the form of final prospectus
supplement, (2) after the Effective Date of such registration
statement, a final prospectus supplement in accordance with Rules 430A
and 424(b), or (3) a final prospectus in accordance with Rules 415 and
424(b). In the case of clause (2), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the 1933 Act
and the rules thereunder to be included in such registration statement
and the Final Prospectus. As filed, such amendment and form of final
prospectus supplement, or such final prospectus, shall contain all Rule
430A Information, together with all other such required information,
and, except to the extent the Representa tives shall agree in writing
to a modification, shall
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be in all substantive respects in the form furnished to the
Representatives prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company
has advised the Representatives, prior to the Execution Time, will be
included or made therein. The Registration Statement, at the Execution
Time, meets the requirements set forth in Rule 415(a)(1)(x). Upon the
request of the Representatives, but not without the agreement of the
Representatives, the Company will also file a Rule 462(b) Registration
Statement.
(ii) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the
1933 Act and the Trust Indenture Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the Regis
tration Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date the Indenture
did or will comply in all material respects with the requirements of
the Trust Indenture Act and the rules thereunder; and, on the Effective
Date, the Final Prospectus, if not filed pursuant to Rule 424(b), will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any 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 Company makes no
representations or warranties as to (A) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee
or (B) the information contained in or omitted from the Regis tration
Statement, or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished herein or in
writing to the
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Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(b) Due Incorporation and Qualification. The Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of Utah with full corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Final Prospectus; and
the Company 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
business, properties or results of operations of the Company and its
subsidiaries considered as one enterprise ("Material Adverse Effect").
(c) Subsidiaries. All outstanding shares of capital stock of
each subsidiary of the Company have been duly and validly authorized
and issued and are fully paid and nonassessable, and except as
otherwise set forth in the Final Prospectus, all outstanding shares of
capital stock of the subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any
perfected security interest or any other security interests, claims,
liens or encumbrances.
(d) Incorporated Documents. The documents incorporated by
reference in the Registration Statement and the Final Prospectus, at
the time they were filed with the Commission, complied in all material
respects with the requirements of the 1934 Act and, when read together
and with the other information in the Registration Statement and the
Final Prospectus, do not contain 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 made, not misleading.
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(e) Financial Statements. The consolidated financial
statements and any related notes of the Company included or
incorporated by reference in the Registration Statement and the Final
Prospectus present fairly in all material respects the consolidated
financial position of the Company as of the dates indicated and the
consolidated results of its operations for the periods specified; and,
except as stated therein, said financial statements and related notes
have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis; and said
notes included in the Registration Statement and the Final Prospectus
present fairly the information required to be stated therein.
(f) Authorization and Validity of this Agreement, the
Indenture and the Notes. This Agreement and the Terms Agreement have
been duly authorized, executed and delivered by the Company and, upon
execution and delivery by the Underwriters, will be valid and binding
agreements of the Company; the Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and
binding obligation of the Company enforceable in accordance with its
terms; the Securities have been duly and validly authorized for
issuance, offer and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement, the Terms Agreement and the Indenture, the Securities will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement of
the Indenture or the Securities may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights generally or by general
equity principles; the Securities and the Indenture will be
substantially in the form heretofore delivered to the Underwriters and
conform in all material respects to all statements relating thereto
contained in the Registration Statement and the Final Prospectus; and
the Securities will be entitled to the benefits provided by the
Indenture.
(g) No Defaults. None of the Company or its
subsidiaries is in violation of its certificate of
incorporation or by-laws, or other organizational
documents, or in default in the performance or
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observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it or its properties is bound; the execution and delivery of this
Agreement and the Indenture and the consummation of the transactions
contemplated herein, therein and pursuant to any Terms Agreement
referred to in Section 3 have been duly authorized by all necessary
corporate action by 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 of its subsidiaries pursuant to any material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which any of the Company or its subsidiaries is a party
or by which it may be bound or to which any of the property or assets
of any of the Company or its subsidiaries is subject, nor will such
action result in any violation of the provisions of the certificate of
incorporation or by-laws, or other organizational documents of the
Company, or any law, administrative regulation or administrative or
court order or decree applicable to the Company or its subsidiaries.
(h) Legal Proceedings; Contracts. Except as may be set forth
or incorporated by reference in the Registration Statement, 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 or its subsidiaries, threatened against or affecting,
the Company or its subsidiaries, which might, in the opinion of the
Company, result in a Material Adverse Effect, or might materially and
adversely affect the properties or assets of the Company and its
subsidiaries, or might materially and adversely affect the consummation
of this Agreement or any Terms Agreement referred to in Section 3 by
the Company; and 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 applicable rules
and regulations thereunder which have not been so filed.
(i) Investment Company Act. The Company is not
and, after giving effect to the offering and sale of
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the Securities and the application of the net proceeds thereof as
described in the Final Prospectus, will not be, an "investment company"
or a person directly or indirectly controlled by an "investment
company", as defined in the Investment Company Act of 1940, as amended.
(j) Registration Rights. No holders of
securities of the Company not currently registered
under the 1933 Act have rights to the registration of
such securities under the Registration Statement.
(k) Insurance. The Company and each of its 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; all policies of insurance and
fidelity or surety bonds insuring the Company or any of its
subsidiaries or the Company's or its subsidiaries' respective
businesses, assets, employees, officers and directors are in full force
and effect; the Company and each of its subsidiaries are in compliance
with the terms of such policies and instruments in all material
respects; and there are no claims by the Company or any of its
subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation
of rights clause; neither the Company nor any such subsidiary has been
refused any insurance coverage sought or applied for; and neither the
Company nor any such subsidiary 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 have
a Material Adverse Effect in each case whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(l) Environmental Laws. The Company and each of its
subsidiaries (i) are in compliance with any and all applicable foreign,
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 and are in
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compliance with all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the
aggregate, have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Final Prospectus (exclusive of any supplement
thereto). Except as set forth in the Final Prospectus, none of the
Company or any of its subsidiaries has been named as a "potentially
responsible party" under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(m) Environmental Review. In the ordinary course of its
business, the Company periodically reviews the effect of Environmental
Laws on the business, operations and properties of the Company and its
subsidiaries, in the course of which the Company identifies and
evaluates associated costs and liabilities (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).
On the basis of such review, the Company has reasonably concluded that
such associated costs and liabilities would not, singly or in the
aggregate, have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(n) Employee Benefits. Except as set forth in or contemplated
in the Final Prospectus (exclusive of any supplement thereto), each of
the Company and its subsidiaries has fulfilled its obligations, if any,
under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Employee Retirement Income Security Act of 1974 ("ERISA") and the
regulations and published
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interpretations thereunder with respect to each "plan" (as defined in
Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Company and its subsidiaries
are eligible to participate and each such plan is in compliance in all
material respects with the presently applicable provisions of ERISA and
such regulations and published interpretations. Except as set forth in
or contemplated in the Final Prospectus (exclusive of any supplement
thereto), the Company and its subsidiaries have not incurred any unpaid
liability to the Pension Benefit Guaranty Corporation (other than for
the payment of premiums in the ordinary course) or to any such plan
under Title IV of ERISA.
(o) Year 2000. The Company has adopted a Year 2000 readiness
program and implementation plan. Except as set forth in the Final
Prospectus, the Company has determined that the risks and exposures
related to the Year 2000 will not materially affect future financial
results, or cause reported financial information not to reflect fairly
the future operating results, cash flows or financial condition of the
Company.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company as to matters covered thereby, to each Underwriter.
3. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of
telefaxed or other written communications ("Terms Agreement") at the time the
Company determines to sell the Securities. The Terms Agreement will generally be
in the form attached hereto as Annex I and will incorporate by reference the
provisions of this Agreement, except as otherwise provided therein, and will
specify the firm or firms which will be Underwriters, the names of any
Representatives, the principal amount to be purchased by each Underwriter, the
purchase price to be paid by the Underwriters and the terms of the Securities
not already specified in the Indenture, including, but not limited to, interest
rate, maturity, any redemption provi sions and any sinking fund requirements and
whether any of the Securities may be sold to institutional investors pursuant to
Delayed Delivery Contracts (as defined below).
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The Terms Agreement will also specify the time and date of delivery and payment
(such time and date, or such other time not later than seven full business days
thereafter as the Representatives and the Company agree as the time for payment
and delivery, being herein and in the Terms Agree ment referred to as the
"Closing Date"), the place of delivery and payment and any details of the terms
of offer ing that should be reflected in the prospectus supplement relating to
the offering of the Securities. The obligations of the Underwriters to purchase
the Securities will be several and not joint. It is understood that the
Underwrit ers propose to offer the Securities for sale as set forth in the Final
Prospectus. The Securities delivered to the Underwriters on the Closing Date
will be in definitive fully registered form, in such denominations and
registered in such names as the Underwriters may request. Delivery of Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company at a bank acceptable to the Representatives. Delivery of Securities
shall be made through the facilities of The Depositary Trust Company unless the
Representatives shall otherwise instruct.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex II attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount of Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securi ties"). The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery Contracts. If the
Company executes and delivers Delayed Delivery Contracts, the Contract
Securities will be deducted from the Securities to be purchased by the several
Underwriters and the aggregate principal amount of Securi ties to be purchased
by each Underwriter will be reduced pro
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rata in proportion to the principal amount of Securities set forth opposite each
Underwriter's name in such Terms Agree ment, except to the extent that the
Representatives deter mine that such reduction shall be otherwise than pro rata
and so advise the Company. The Company will advise the Representatives not later
than the business day prior to the Closing Date of the principal amount of
Contract Securities.
4. Certain Agreements of the Company. The Company agrees with
the several Underwriters that, in connection with each offering of Securities:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration Statement unless the Company has
furnished the Representatives a copy for their review prior to filing
and will not file any such proposed amendment or supplement to which
the Representatives reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Final Prospectus is otherwise
required under Rule 424(b), the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company
will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any
supplement to the Final
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Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the 1933 Act, any event
occurs as a result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Prospectus to comply with the
1933 Act or the 1934 Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or which will effect such compliance
and (3) supply any supplemented Final Prospectus to the Representatives
in such quantities as the Representatives may reasonably request.
Neither the Representatives' consent to, nor the Underwriters' delivery
of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 5 hereof.
(c) As soon as practicable, but not later than 16 months after
the date of each Terms Agreement, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Sec tion 11(a) of the 1933 Act and
Rule 158 under the 1933 Act.
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(d) The Company will furnish to the Representa tives signed
copies of the Registration Statement, including all exhibits, in the
form it became effective and, so long as delivery of a prospectus by an
Underwriter or dealer may be required under the 1933 Act, as many
copies of each Preliminary Final Prospectus and the Final Prospectus
and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(e) The Company will arrange for the qualifica tion of the
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as
required for the distribution.
(f) During the period of five years after the date of any
Terms Agreement, the Company will furnish to the Representatives and,
upon request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year, if any; and the Company will
furnish to the Representatives (i) as soon as available, a copy of each
report or definitive proxy statement, if any, of the Company filed with
the Commission under the 1934 Act or mailed to stockholders and (ii)
from time to time, such other information concerning the Company as the
Representatives may reasonably request.
(g) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, for any filing
fees or other expenses (including reasonable fees and disbursements of
counsel) in connection with qualification of the Securities for sale
and determination of their eligibility for investment under the laws of
such jurisdictions as the Representatives may designate and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Securities, for any
fee of the National Association of Securities Dealers, Inc. in
connection with its review of the offering and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses and any
preliminary prospectus supplements to Underwriters.
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(h) Until the Business Day set forth in the Terms Agreement,
the Company will not, without the prior written consent of Credit
Suisse First Boston Corporation, offer, sell or contract to sell or
otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of
the Company) directly or indirectly, or announce the offering of, any
debt securities issued or guaranteed by the Company (other than the
Securities).
(i) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the 1934 Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
5. Conditions of the Obligations of the Under writers. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein as of the Execution Time and the Closing Date, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions precedent:
(a) If filing of the Final Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Final Prospectus, and
such supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness
of the Registration Statement or of any part thereof shall have been
issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Company or any Underwriter, shall be
contemplated by the Commission.
(b) Subsequent to the execution of the Terms Agreement, or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Final
15
Prospectus (exclusive of any amendment thereto), there shall not have
been (i) any change, or any development involving a prospective change,
in or affecting the condition, financial or otherwise, earnings,
business or properties of the Company and its subsidiaries taken as one
enterprise, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto) the effect of which
is, in the sole judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Final Prospectus (exclusive of any supplement thereto); (ii) any
downgrading in the rating of the Company's debt securities by ▇▇▇▇▇'▇
Investors Service, Inc., or Standard & Poor's Corporation or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any
material suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by
Federal, Canadian or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States or Canada is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of
a majority in interest of the Underwriters, including any
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the sale of and payment for the
Securities; or (vi) any change or decrease specified in the letter or
letters referred to in paragraphs (i) and (j) of this Section 5 the
effect of which is, in the sole judgment of the Representatives, so
material and adverse as to make it impracticable or inadvisable to
proceed with the offering or delivery of the Securities as contemplated
by the Registration Statement (exclusive of any
16
amendment thereof) and the Final Prospectus (exclusive
of any supplement thereto).
(c) The Representatives shall have received an opinion, dated
the Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., general counsel of
the Company, or other counsel satisfactory to the Representatives, to
the effect that:
(i) the Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification, except
where the failure to so qualify and be in good standing would
not have a Material Adverse Effect;
(ii) the Company's authorized equity capitalization
is as set forth in the Final Prospectus; the Securities
conform in all material respects to the description thereof
contained in the Final Prospectus; and, except as set forth in
the Final Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights
to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the
Company are outstanding;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company and has been duly
qualified under the Trust Indenture Act; the Securities have
been duly authorized; the Indenture and the Securities other
than any Contract Securities constitute, and any Contract
Securities, when executed, authenticated, issued and delivered
in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will constitute, valid and legally
binding obligations of the Company, enforceable in accordance
with their terms, subject, as to enforcement of remedies, to
applicable bankruptcy, insolvency, reorganization and other
laws affecting creditors' rights generally from time to time
in effect; and the Securities other than any Contract
Securities conform, and any Contract Securities, when so
issued and delivered and sold, will conform, to the
description thereof contained in the Final Prospectus;
17
(iv) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or
the Company's or its subsidiaries' respective property, of a
character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus; there is no franchise, contract or other document
of a character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required;
(v) no consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions
of this Agreement incorporated by reference therein, the
"Underwriting Agreement"), except such as have been obtained
and made under the 1933 Act and the Trust Indenture Act and
such as may be required under state securities laws in
connection with the issuance or sale of the Securities by the
Company;
(vi) the execution, delivery and performance of the
Underwriting Agreement, the Indenture, and any Delayed
Delivery Contracts and the issuance and sale of the Securities
and compliance with the terms and provisions hereof and
thereof will not conflict with, result in a breach or
violation of or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to (A) the
charter or by-laws of the Company, (B) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or its
subsidiaries is bound or to which they or their property is
subject, or (C) any statute, law, rule, regulation, judgment,
order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its properties;
18
(vii) the Registration Statement has become effective
under the 1933 Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than
the financial statements and other financial information
contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirement of the 1933 Act, the 1934 Act, the
Trust Indenture Act and the respective rules thereunder;
(viii) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement; and
(ix) the Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the net proceeds thereof as described in the Final Prospectus,
will not be an "investment company" or a person directly or
indirectly controlled by an "investment company", as defined
in the Investment Company Act of 1940, as amended.
Such counsel shall additionally state that such counsel has no
reason to believe that on the Effective Date or at the Execution Time
the Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or
that the Final Prospectus as of its date and on the Closing Date
included or includes any untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and other
financial information contained therein, as to which such counsel need
express no opinion).
19
In rendering such opinion, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., or
other counsel may rely as to the incorporation of the Company, the
authorization, execution and delivery of the Underwriting Agreement and
all other matters governed by the laws of the State of Utah, upon the
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, special Utah counsel to the
Company, or other Utah counsel satisfactory to the Representatives, a
copy of which shall be delivered concurrently with the opinion of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., or other counsel.
(d) The Representatives shall have received an opinion, dated
the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company
or other counsel satisfactory to the Representatives, to the effect
that:
(i) the Indenture has been duly authorized, executed
and delivered by the Company and has been duly qualified under
the Trust Indenture Act; the Securities have been duly
authorized; the Securi ties other than any Contract Securities
have been duly executed, authenticated, issued and deliv ered;
the Indenture and the Securities other than any Contract
Securities constitute, and any Contract Securities, when
executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally binding
obligations of the Company enforceable in accordance with
their terms, subject, as to enforcement of remedies, to
applicable bankruptcy, insolvency, reorganization and other
laws affecting creditors' rights generally from time to time
in effect; and the Securities other than any Contract
Securities conform, and any Contract Securities, when so
issued and delivered and sold, will conform, to the
description thereof contained in the Final Prospectus;
(ii) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or
the Company's or its subsidiaries' respective property, of a
character required to be disclosed in the Registration
Statement which is not
20
adequately disclosed in the Final Prospectus; and the
statements included or incorporated by reference in the Final
Prospectus under the heading "Certain United States Federal
Income Tax Considerations" and "Description of the Notes"
fairly summarize the matters therein described;
(iii) no consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by the Underwriting Agreement, except such as
have been obtained and made under the 1933 Act and the Trust
Indenture Act and such as may be required under state
securities laws in connection with the issuance or sale of the
Securities by the Company;
(iv) the execution, delivery and performance of the
Underwriting Agreement, the Indenture and any Delayed Delivery
Contracts and the issuance and sale of the Securities and
compliance with the terms and provisions hereof and thereof
will not conflict with, result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to (A) the charter
or by-laws of the Company, (B) to the knowledge of such
counsel, the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument
to which the Company or its subsidiaries is bound or to which
they or their property is subject, or (C) any statute, law,
rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the
Company or any of its properties;
(v) the Registration Statement has become effective
under the 1933 Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has
21
been issued and no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements and
other financial information contained therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the Trust Indenture Act and the rules
thereunder; and
(vi) the Underwriting Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and
delivered by the Company.
Such counsel shall additionally state that such counsel has no
reason to believe that on the Effective Date or at the Execution Time
the Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or
that the Final Prospectus as of its date and on the Closing Date
included or includes any untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and other
financial information contained therein, as to which such counsel need
express no opinion).
In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius or other
counsel may rely as to the incorporation of the Company, the
authorization, execution and delivery of the Underwriting Agreement and
all other matters governed by the laws of the State of Utah, upon the
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, special Utah counsel to the
Company, or other Utah counsel satisfactory to the Representatives, a
copy of which shall be delivered concurrently with the opinion of
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius or other counsel.
(e) The Representatives shall have received an opinion, dated
the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, special Utah counsel for
the Company, or such other counsel as shall be acceptable to the
Underwriters, to the effect that:
(i) the Company has been duly incorporated
and is an existing corporation in good standing
22
under the laws of the State of Utah, with corpo rate power and
authority to own, lease and operate its properties and conduct
its business as described in the Final Prospectus;
(ii) the Underwriting Agreement and any Delayed
Delivery Contract and the Indenture have been duly authorized,
executed and delivered by the Company; and the Securities have
been duly authorized;
(iii) no consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court of the State of Utah is required for the consummation of
the transactions contemplated by the Underwriting Agreement,
except such as may be required under the blue sky laws of the
State of Utah in connection with the issuance or sale of the
Securities by the Company; and
(iv) the execution, delivery and performance of the
Underwriting Agreement, the Indenture and any Delayed Delivery
Contract and the issuance and sale of the Securities and
compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body
of the State of Utah or any court of the State of Utah having
jurisdiction over the Company or any of its properties or the
charter or by-laws of the Company, and the Company has full
power and authority to authorize, issue and sell the
Securities as contemplated by the Underwriting Agreement.
(f) The Representatives shall have received from Cravath,
Swaine & ▇▇▇▇▇, special counsel for the Underwriters (or any other
counsel named as counsel for the Underwriters in any Terms Agreement),
such opinion or opinions, dated the Closing Date, and addressed to the
Representatives with respect to the validity of the Securities, the
Registration Statement, the Final Prospectus and other related matters
as the Representatives may require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon
23
such matters. In rendering such opinion, Cravath, Swaine & ▇▇▇▇▇ (or
such other counsel for the Underwriters named in any Terms Agreement)
may rely as to the incorporation of the Company, the authorization,
execution and delivery of the Terms Agreement and all other matters
governed by Utah law upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, local
counsel for Utah law, or such other counsel as referred to above.
(g) The Representatives shall have received a certificate of
the Company, dated the Closing Date, signed by the Chairman of the
Board or the President and the principal financial or accounting
officer of the Company in which such signers of the certificate state
that they have carefully examined the Registration Statement, the Final
Prospectus, any supplements to the Final Prospectus, this Agreement and
the Terms Agreement, and that the representations and warranties of the
Company in this Agreement are true and correct in all material respects
on and as of the Closing Date, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have
been instituted or to the Company's knowledge are contemplated by the
Commission and that, subsequent to the date of the most recent
financial statements in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by the Final
Prospectus (exclusive of any supplement thereto).
(h) The Representatives shall have received letters, at the
Execution Time and at the Closing Date, dated respectively as of the
Execution Time and as of the Closing Date, of Deloitte & Touche LLP in
form and
24
substance satisfactory to the Representatives, to the
effect that:
(i) They are independent public accountants with
respect to the Company and its subsidiaries within the meaning
of the 1933 Act, the 1934 Act and the respective applicable
rules and regulations thereunder.
(ii) In their opinion, the financial statements and
any supporting schedules, including any pro forma financial
statements, of the Company and its subsidiaries examined by
them and included or incorporated by reference in the
Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act and the rules and regulations promulgated thereunder
with respect to registration statements on Form S-3 and the
1934 Act and the rules and regulations promulgated thereunder.
(iii) They have performed specified procedures, not
constituting an audit, and on the basis of such procedures and
inquiries of certain officials of the Company, nothing came to
their attention that caused them to believe that (A) the
information included or incorporated by reference in the
Registration Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed
Charges) in each case, as applicable, for the years ended
December 31, 1995, 1996 and 1997 is not in conformity with the
applicable disclosure requirements of Regulation S-K, or (B)
the unaudited "capsule" information, if any, included or
incorporated by reference in the Registration Statement do not
agree with the amounts set forth in the unaudited financial
statements for the same periods or were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited financial statements included or
incorporated by reference in the Registration Statement and
the Final Prospectus, in each case, as applicable, for the
years ended December 31, 1995, 1996 and 1997
25
except in each such case as set forth in or contemplated by
the Registration Statement and Final Prospectus or except for
such exceptions enumerated in such letter as shall have been
agreed to by the Representatives and the Company.
(iv) In addition to the examination referred to in
their report included or incorporated by reference in the
Registration Statement and the Final Prospectus, and the
limited procedures referred to in clause (iii) above, they
have carried out certain other 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
Final Prospectus and which are specified by the
Representatives, 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.
(i) The Representatives shall have received letters, at the
Execution Time and at the Closing Date, dated respectively as of the
Execution Time and as of the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or
any successor independent public auditors of the Company in form and
substance satisfactory to the Representatives, to the effect that:
(i) They are independent public accountants with
respect to the Company and its subsidiaries within the meaning
of the 1933 Act and the 1934 Act and the applicable rules and
regulations.
(ii) In their opinion, the financial statements and
any supporting schedules, including any pro forma financial
statements, of the Company and its subsidiaries examined by
them and included or incorporated by reference in the
Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act and the rules and regulations promulgated thereunder
with respect to registration statements on Form S-3 and the
1934 Act and the rules and regulations promulgated thereunder.
26
(iii) They have performed specified procedures, not
constituting an audit, including a review in accordance with
standards established under Statement on Auditing Standards
No. 71, of the latest available interim financial statements
of the Company and its subsidiaries, a reading of the minute
books of the Company 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 its subsidiaries responsible for financial and
accounting matters with respect to the unaudited consolidated
financial statements included in the Registration Statement
and Final 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) the unaudited consolidated
financial statements of the Company and its subsidiaries
included in the Registration Statement and Final Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the
applicable rules and regulations of the Commission with
respect to quarterly reports on Form 10-Q under the 1934 Act
or were not fairly presented in conformity with generally
accepted accounting principles in the United States applied on
a basis substantially consistent with that of the audited
financial statement included therein, (B) 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 or any
increase in consolidated long-term debt of the Company and its
subsidiaries or any decrease in the consolidated net assets or
consolidated stockholders' equity of the Company and its
subsidiaries, or any increase or decrease in any other items
specified by the Representatives, in each case as compared
with the amounts shown on the most recent consolidated balance
sheet of the Company and its subsidiaries included in the
Registration Statement and Final Prospectus or, during the
period from the date of the latest income statement included
in the Final Prospectus to the closing date of the latest
27
available income statement, there were any decreases, as
compared with the corresponding period in the preceding year,
in consolidated revenues or net income of the Company and its
subsidiaries, or any increase or decrease in any other items
specified by the Representatives, except in all instances for
changes, increases or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation
by the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives,
(C) during the period from the date of the latest income
statement included in the Final Prospectus to a specified date
not more than three days prior to the date of such letter,
there were any decreases, compared with the corresponding
period in the preceding year, in consolidated revenues or net
income of the Company and its subsidiaries, or any increase or
decrease in any other items specified by the Representatives,
except in all instances for changes, increases or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives, (D) the information included
or incorporated by reference in the Registration Statement and
Final Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary Financial
Information), Item 402 (Executive Compensation) and Item
503(d) (Ratio of Earnings to Fixed Charges), in each case for
the year ended December 31, 1998, is not in conformity with
the applicable disclosure requirements of Regulation S-K, or
(E) the unaudited "capsule" information, if any, included or
incorporated by reference in the Registration Statement do not
agree with the amounts set forth in the unaudited financial
statements for the same periods or were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited financial statements included or
incorporated by reference in the Registration Statement and
the Final Prospectus, except in each such case as set forth in
or contemplated by the Registration Statement and Final
Prospectus or except for such exceptions enumerated in such
28
letter as shall have been agreed to by the
Representatives and the Company.
(iv) On the basis of a reading of the unaudited pro
forma financial statement included or incorporated in the
Registration Statement, if any, and the Final Prospectus (the
"pro forma financial statements"), carrying out certain
specified procedures; inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters, and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the pro forma financial statement, nothing came to
their attention that caused them to believe that the pro forma
financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X of the rules and regulations.
(v) In addition to the examination referred to in
their report included or incorporated by reference in the
Registration Statement and the Final Prospectus, and the
limited procedures referred to in clause (iii) above, they
have carried out certain other 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
Final Prospectus and which are specified by the
Representatives, 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.
(j) On the Closing Date, counsel to the Representatives shall
have been furnished with such documents and opinions as such counsel
may reasonably require for the purpose of enabling such counsel to pass
upon the issuance and sale of 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 Securities as herein contemplated
29
shall be satisfactory in form and substance to the
Representatives and to counsel to the Representatives.
(k) The Securities shall have been listed and admitted and
authorized for trading on the New York Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the
Representatives.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the offices of Cravath, Swaine & ▇▇▇▇▇, counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing
Date.
6. Reimbursement of Underwriters' Expenses. If the sale of
the Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied, because of any termination pursuant to Section 9 hereof or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Credit Suisse First Boston Corporation on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter, its partners, directors, officers,
employees and agents and each person who controls any Underwriter within the
meaning of either the 1933 Act or the 1934 Act against any and all losses,
claims, damages or liabilities, joint or several, to
30
which they or any of them may become subject under the 1933 Act, the 1934 Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company and each of its directors, each of its
officers who sign the Registration Statement, and each person who controls the
Company within the meaning of the 1933 Act or the 1934 Act to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth (i) under the heading "Underwriting" or "Plan of Distribution", the
sentences related to concessions and reallowances and (ii) the paragraph related
to stabilization, syndicate covering transactions and penalty bids, in each case
in any Preliminary Final Prospectus and the Final Prospectus,
31
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Final Prospectus or the
Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written
32
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding and does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(d) In the event that the indemnification provided for in
paragraph (a) or (b) of this Section 7 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Company and one or more of the Underwriters may be subject 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 from the offering of the Securities.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company, and the Underwriters severally, shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connec tion with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by the Company and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or any 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 on the one hand or the
Underwriters on the other, and the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
33
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this subsection (d), in no case shall any Underwriter (except as may be provided
in any agreement among underwriters relating to the offering of the Securities)
be responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter hereunder.
Notwithstanding the provisions of this subsection (d), 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.
(e) For purposes of this Section 7, each person who controls
an Underwriter within the meaning of either the 1933 Act or the 1934 Act and
each director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the 1933 Act or the 1934 Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company, shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities under the Terms
Agreement and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement or the Terms
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule A to the Terms Agreement
bears to the aggregate principal amount of Securities set forth opposite the
names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that if the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the total principal amount of the Securities set forth on Schedule A to the
Terms Agreement, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the
34
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement and the Terms Agreement shall terminate without
liability to any nondefaulting Underwriter or the Company. In the event of a
default by any Underwriter as set forth in this Section 8, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
Representatives and the Company shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing herein will relieve a
defaulting Underwriter from liability, if any, to any nondefaulting Underwriter
and the Company for its default.
9. Termination. This Agreement and the Terms Agreement shall
be subject to termination in the absolute discretion of the Representatives, by
notice given to the Company prior to delivery of and payment for the Securities,
if at any time prior to such time (i) trading in the Company's Common Stock
shall have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representatives,
impracticable or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Final Prospectus (exclusive of any supplement
thereto).
10. Survival of Representations and Indemnities. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter,
the Company or any of their respective officers, directors or controlling
persons referred to in Section 7 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancelation of this Agreement.
35
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Credit Suisse First Boston Corporation
Transactions Advisory Group (fax no. ▇▇▇-▇▇▇-▇▇▇▇) and confirmed to Credit
Suisse First Boston Corporation, at Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Investment Banking Department--Transactions Advisory
Group; or, if sent to the Company, will be mailed, delivered or telefaxed to
▇▇▇-▇▇▇-▇▇▇▇ and confirmed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention of the Treasurer.
12. Certain Definitions. The terms which follow,
when used in this Agreement, shall have the meanings
indicated.
"1933 Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 2(a) above contained in the Registration Statement at the
Effective Date, including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City or in such location as may be specified in the Terms Agreement.
"Commission" shall mean the Securities and
Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Execution Time" shall mean the date and time that this
Agreement and any Terms Agreement is executed and delivered by the
Company and the Underwriters.
36
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to the filing of
the Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registra tion
statement referred to in paragraph 2(a) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or
any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended
or such Rule 462(b) Registration Statement, as the case may be. Such
term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A", "Rule 462" and
"Regulation S-K" refer to such rules or regulations under the 1933 Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 2(a) above.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
promulgated thereunder.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the Company and such Under writers as are identified in the
Terms Agreement and their respective successors and the officers and directors
and
37
controlling persons referred to in Section 7 hereof, and no other person will
have any right or obligation hereunder.
14. Applicable Law. This Agreement and the Terms Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York, without regard to principles of conflicts of laws.
15. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
ANNEX I
UNION PACIFIC RESOURCES GROUP INC.
(the "Company")
Securities
TERMS AGREEMENT
________________, 1999
UNION PACIFIC RESOURCES GROUP INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [ ]
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we][We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement filed by the
Company on Form 8-K (the "Underwriting Agreement"), the following securities
(the "Securities") on the following terms:
Title: [ ]% Notes Due .
Principal Amount: $[ ]
Interest: [ ]% per annum, from ,
19 , payable semiannually on and
commencing , 19 , to holders of record on the
preceding or , as the case may be.
Maturity:
Optional Redemption: The Securities are redeemable, in whole
or in part, at the option of the Company at any time, at a redemption price
equal to the greater of (i) 100% of the principal amount to be redeemed and (ii)
the sum of the present values of the Remaining Scheduled Payments (as
hereinafter defined) thereon, discounted to the redemption date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months), at the
Treasury Rate, plus [ ] basis points, plus
2
accrued interest in the principal amount being redeemed to
the redemption date.
Sinking Fund: None
Delayed Delivery Contracts: [None.] [Delivery
Date[s] shall be , 19 . Underwriter['s][s'] fee
is [ ]% of the principal amount of the Contract
Securities.]
Purchase Price: [ ]% of principal amount plus
accrued interest[, if any,] from , 1999.
Expected Reoffering Price: [ ]% of principal
amount, subject to change by the undersigned.
Closing: a.m. on , 1999, at the
offices of Cravath, Swaine & ▇▇▇▇▇, Worldwide Plaza,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, in same day funds.
Name[s] and Address[es] of Representative[s]:
Credit Suisse First Boston Corporation, [ ].
Business Day: __________.
The respective principal amounts of the Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
It is understood that we may, with your consent, amend this
offer to add additional Underwriters and reduce the aggregate principal amount
to be purchased by the Underwriters listed in Schedule A hereto by the aggregate
principal amount to be purchased by such additional Underwriters.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The Securities will be made available for checking at the
offices of Cravath, Swaine & ▇▇▇▇▇ at least 24 hours prior to the Closing Date.
3
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us by mail or
hand delivery.]
[Please signify your acceptance of the foregoing
by return wire not later than P.M. today.]
Very truly yours,
Credit Suisse First Boston
Corporation
On behalf of themselves and as
Representatives of the Several
Underwriters
By Credit Suisse First Boston
Corporation
By
Name:
Title:
SCHEDULE A
Underwriter Principal Amount
----------------
Credit Suisse First Boston
Corporation .................................... $
[ ].................................... $
---------------
Total................................................ $
To: Credit Suisse First Boston Corporation,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
[address]
We accept the offer contained in your [letter] [wire], dated , 1999,
relating to $[ ] million principal amount of our [ ]% Notes due [ ]. We also
confirm that, to the best of our knowledge after reasonable investigation, the
representations and warranties of the undersigned in the Underwriting Agreement
filed by the Company on Form 8-K (No. 33- ) (the "Underwriting Agreement") are
true and correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof has
been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the undersigned, are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial
statements in the Final Prospectus (as defined in the Underwriting Agreement),
there has been no Material Adverse Effect (as defined in the Underwriting
Agreement), except as set forth in or contemplated by the Final Prospectus.
Very truly yours,
UNION PACIFIC RESOURCES
GROUP INC.
by
Name:
Title:
ANNEX II
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on [third business day prior to Closing Date], 1999.)
DELAYED DELIVERY CONTRACT
[ ], 1999
Union Pacific Resources Group Inc.
c/o Credit Suisse First Boston Corporation
[address]
Gentlemen:
The undersigned hereby agrees to purchase from Union Pacific
Resources Group Inc., a Utah corporation (the "Company"), and the Company agrees
to sell to the undersigned, [If one delayed closing, insert--as of the date
hereof, for delivery on , 1999 ("Delivery Date")]
$[ ]
principal amount of the Company's [ ]% Notes due [ ] (the "Securities"), offered
by the Company's Prospectus dated August 27, 1998 and a Prospectus Supplement
dated , 1999 relating thereto, receipt of copies of which is hereby
acknowledged, at % of the principal amount thereof plus accrued interest,
if any, and on the further terms and conditions set forth in this Delayed
Delivery Contract ("Contract").
[If two or more delayed closings, insert the
following:
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
Delivery Date Principal Amount
_____________ ________________
_____________ ________________
2
Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on [the] [each] Delivery Date shall be made to the Company
or its order in same day funds at the office of [ ] at [ ] on [the] [such]
Delivery Date upon delivery to the undersigned of the Securities to be purchased
by the undersigned for delivery on such Delivery Date in definitive fully
registered form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to [the] [such] Delivery
Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a purchase
as of the date of this Contract; that the obligations of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on [the] [each] Delivery Date
shall be subject only to the conditions that (1) investment in the Securities
shall not at [the] [such] Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the under signed at its address set forth below
notice to such effect, accompanied by a copy of the opinions of counsel for the
Company delivered to the Underwriters in connection there with.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective succes sors, but will not be assignable
by either party hereto without the written consent of the other.
3
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
(Name of Purchaser)
By
(Title of Signatory)
(Address of Purchaser)
Accepted, as of the above date.
UNION PACIFIC RESOURCES GROUP INC.
By
Name:
Title: