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EXHIBIT 1.1
OCCIDENTAL PETROLEUM CORPORATION
UNDERWRITING AGREEMENT
April 2, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
Occidental Petroleum Corporation, a Delaware corporation (the "Company"),
confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities Inc., BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (collectively the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 11 hereof) with respect to the sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of the respective principal amounts set forth opposite their names on Schedule A
hereto, of the Company's $250 million aggregate principal amount of 6.50% Senior
Notes due April 1, 2005 (the "Seven-Year Notes"), $200 million aggregate
principal amount of 7.20% Senior Debentures due April 1, 2028 (the "Thirty-Year
Debentures") and $450 million aggregate principal amount of 6.40% Senior Notes
due April 1, 2013, Mandatorily Tendered on April 1, 2003 (the "Mandatorily
Tendered Notes" and, together with the Seven-Year Notes and the Thirty-Year
Debentures, the "Notes"). The Notes are to be issued pursuant to an indenture
(the "Indenture", which term, for the purpose of this Agreement, shall include
the Officers' Certificate with respect to the Notes delivered pursuant to
Sections 201 and 301 of the Indenture), dated as of April 1, 1998, between the
Company and The Bank of New York, as trustee (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-59395) and, if
applicable, one or more amendments thereto for the registration of senior debt
securities, including the Notes, under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"). Such registration statement
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(as amended, if applicable) has been declared effective by the Commission and
the Indenture has been qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). Such registration statement (as amended, if
applicable) and the prospectus constituting a part thereof, together with any
prospectus supplement relating to the Notes, including, in each case, all
Incorporated Documents (as hereinafter defined), are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that, if any
revised prospectus or revised prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the offering of the Notes
that is not required to be filed by the Company pursuant to Rule 424(b) of the
1933 Act Regulations, the term "Prospectus" shall refer to such revised
prospectus or prospectus supplement, as the case may be, from and after the time
it is first provided to the Underwriters for such use. Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations and relating
to the Registration Statement is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. Any reference herein to
the Registration Statement, any preliminary prospectus or the Prospectus shall
be deemed to refer to and include the documents, financial statements and
schedules incorporated or deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, and any reference to any
amendment or supplement to the Registration Statement or the Prospectus shall be
deemed to refer to and include any documents, financial statements and schedules
filed by the Company with the Commission under the Securities Exchange Act of
1934, as amended (the "1934 Act"), and so incorporated or deemed to be
incorporated by reference (such incorporated documents, financial statements and
schedules being herein called the "Incorporated Documents"). Notwithstanding the
foregoing, for purposes of this Agreement any prospectus supplement prepared or
filed with respect to an offering pursuant to the Registration Statement of a
series of debt securities other than the Notes shall not be deemed to have
supplemented the Prospectus.
For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus or the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
The Company understands that the Underwriters propose to make a public
offering of the Notes as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each of the Underwriters as
follows:
(i) The Incorporated Documents, when they were filed or became
effective (or, if an amendment with respect to any such Incorporated
Document was filed or became effective, when such amendment was filed or
became effective) with the Commission, as the case may be, complied in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and any Incorporated Documents filed subsequent to the date
hereof and prior to the termination of the offering of the Notes, will,
when they are filed with the Commission, comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations; no such
Incorporated Document, when it was filed or became effective (or, if an
amendment with respect to any such Incorporated Document was filed or
became effective, when such amendment was filed or became effective) with
the Commission, contained, and no Incorporated Document filed subsequent to
the date hereof and prior to the termination of the offering of the Notes
will contain, an untrue statement of a material fact or omitted, or will
omit, to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were or will be made, not misleading.
(ii) Each preliminary prospectus relating to the Notes filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 of the 1933 Act
Regulations, when so filed, and the Registration Statement and the Rule
462(b) Registration Statement, at the respective times they became
effective, complied in all material respects with the provisions of the
1933 Act and the 1933 Act Regulations; at the date hereof and at the
Closing Time, the Registration
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Statement, the Rule 462(b) Registration Statement and the Prospectus, and
any supplement or amendment thereto relating to the Notes, comply and will
comply in all material respects with the provisions of the 1933 Act and the
1933 Act Regulations; and the Registration Statement, the Rule 462(b)
Registration Statement and the Prospectus, and any such supplement or
amendment thereto relating to the Notes, at all such times did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; except that this representation and warranty does not
apply to statements or omissions in the Registration Statement, the Rule
462(b) Registration Statement, the Prospectus or any preliminary
prospectus, or any amendment or supplement thereto, made in reliance upon
information furnished to the Company in writing by or on behalf of any
Underwriter expressly for use therein or to those parts of the Registration
Statement that constitute the Trustee's Statement of Eligibility on Form
T-1 under the 1939 Act (the "Form T-1"). There is no contract or document
of a character required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement
that is not described or filed as required. In the event that the
Registration Statement (including any prospectus filed as part of the
Registration Statement), the Rule 462(b) Registration Statement, any
preliminary prospectus or the Prospectus or any amendment or supplement to
any of the foregoing was or is filed electronically pursuant to ▇▇▇▇▇, then
the Registration Statement (including any prospectus filed as part
thereof), the Rule 462(b) Registration Statement, such preliminary
prospectus, the Prospectus and any such amendment or supplement delivered
to the Underwriters for use in connection with the offering of the Notes
was or will be, as the case may be, identical (as to content) to the
electronically transmitted copy thereof filed with the Commission pursuant
to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(iii) This Agreement, the Indenture, the Remarketing Agreement (the
"Remarketing Agreement"), dated as of April 1, 1998, between the Company
and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Remarketing
Dealer") and the Notes have been duly authorized by the Company and conform
in all material respects to the descriptions thereof in the Prospectus.
(iv) The Indenture (assuming the due execution and delivery thereof by
the Trustee) and the Remarketing Agreement are, and the Notes (when
executed by the Company and authenticated in accordance with the Indenture
and delivered to and paid for by the purchasers thereof) will be, the
legal, valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as such enforceability
may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
enforcement of creditors' rights generally and (B) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). The Notes (when executed by the Company
and authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the purchasers thereof) will be entitled to
the benefits of the Indenture (subject to the exceptions set forth in the
preceding sentence).
(v) The Company and each of Occidental Chemical Holding Corporation, a
California corporation, and Occidental Oil and Gas Corporation, a
California corporation (each a "Principal Domestic Subsidiary" and
collectively the "Principal Domestic Subsidiaries") is a validly existing
corporation in good standing under the laws of its state of incorporation.
The Company and each Principal Domestic Subsidiary has full corporate power
and authority to own its properties and carry on its business as presently
conducted, as described in the Prospectus, and is duly registered or
qualified to conduct business, and is in good standing, in each
jurisdiction in which it owns or leases property or transacts business and
in which such registration or qualification is necessary, except as to
jurisdictions where the failure to do so would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. All of the
outstanding capital stock or other securities evidencing equity ownership
of each Principal Domestic Subsidiary has been duly and validly authorized
and issued and is fully paid and non-assessable, and is owned by the
Company, directly or indirectly through subsidiaries, free and clear of any
security interest, claim, lien or encumbrance. There are no outstanding
rights, warrants or options to
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acquire, or instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in any such Principal Domestic
Subsidiary, except for rights, warrants or options held by the Company.
(vi) Except as contemplated in the Prospectus or reflected therein by
the filing of any amendment or supplement thereto or any Incorporated
Document, since the date of the most recent consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, unless the Company has notified the
Underwriters as provided in Section 4(d) hereof, there has not been any
material adverse change in the consolidated financial condition of the
Company and its subsidiaries, taken as a whole.
(vii) The Company is not in violation of its Restated Certificate of
Incorporation or Bylaws, in each case, as amended. The execution and
delivery of this Agreement and the Remarketing Agreement by the Company,
the issuance and sale of the Notes and the performance by the Company of
its obligations under this Agreement, the Remarketing Agreement and the
Indenture will not conflict with or constitute a breach of or a default
(with the passage of time or otherwise) under (A) the Restated Certificate
of Incorporation or Bylaws of the Company, in each case, as amended, (B)
any agreement or instrument (which is, individually or in the aggregate,
material to the Company and its subsidiaries, taken as a whole) to which
the Company is a party or by which it is bound or (C) any order of any
court or governmental agency or authority presently in effect and
applicable to the Company or any Principal Domestic Subsidiary. Except for
orders, permits and similar authorizations required under the securities or
Blue Sky laws of certain jurisdictions, including jurisdictions outside the
United States, or required of any securities exchange on which any of the
Notes might be listed, no consent, approval, authorization or other order
of any regulatory body, administrative agency or other governmental body is
legally required for the valid issuance and sale of the Notes.
(viii) To the best of the Company's knowledge, the accountants who
have audited and reported upon the consolidated financial statements filed
with the Commission as part of the Registration Statement and the
Prospectus are independent accountants as required by the 1933 Act. The
consolidated financial statements included in the Registration Statement
and Prospectus, or incorporated therein by reference, fairly present the
consolidated financial position and results of operations of the entities
to which such statements relate at the respective dates and for the
respective periods to which they apply. Such consolidated financial
statements have been prepared in accordance with generally accepted
accounting principles consistently applied, except as set forth in the
Registration Statement and Prospectus.
(ix) The Company has complied with, and is and will be in compliance
with, the provisions of that certain Florida act relating to disclosure of
doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder (collectively, the "Cuba
Act") or is exempt therefrom.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to the Underwriters or to counsel for the Underwriters
in connection with transactions contemplated hereby shall be deemed a
representation and warranty by the Company to such Underwriters as to the
matters covered thereby on the date of such certificate.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
(a) Purchase and Sale. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Company, at 98.805% of the principal amount thereof, the principal amount of
Seven-Year Notes set forth on Schedule A opposite the name of such Underwriter,
at 98.904% of the principal amount thereof, the principal amount of Thirty-Year
Debentures set forth on Schedule A opposite the name of such Underwriter, and at
102.063% of the principal amount thereof, the principal amount of Mandatorily
Tendered Notes set forth on Schedule A opposite the name of such Underwriter.
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(b) Closing Time. Payment of the purchase price for, and delivery of the
certificates for, the Notes shall be made at the offices of ▇▇▇▇▇ & Wood LLP,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place
as shall be agreed upon by the Underwriters and the Company, at 10:00 a.m., New
York City time, on April 6, 1998 (unless postponed in accordance with the
provisions of Section 11), or such other time not later than ten business days
after such date as shall be agreed upon by the Underwriters and the Company
(such time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately available
funds to a bank account designated by the Company, against delivery to the
Underwriters of certificates for the Notes to be purchased by them. Certificates
for the Notes shall be in such denominations and registered in such names as the
Underwriters may request in writing by 12:00 noon New York City time at least
one full business day before Closing Time. It is understood that each
Underwriter has authorized for its respective account, to accept delivery of,
and receipt for, and make payment of the purchase price for, the Notes which
such Underwriter has agreed to purchase. The certificates for the Notes will be
made available for examination and packaging by the Underwriters not later than
10:00 a.m. on the last business day prior to Closing Time in The City of New
York.
SECTION 3. Foreign Offerings.
Each Underwriter, severally and not jointly, represents and agrees that (i)
such Underwriter has not solicited, and will not solicit, offers to purchase any
of the Notes from, (ii) such Underwriter has not sold, and will not sell, any of
the Notes to, and (iii) such Underwriter has not distributed, and will not
distribute, the Prospectus to, any person or entity in any jurisdiction outside
of the United States (collectively "Foreign Offers and Sales") except, in each
case, in compliance in all material respects with all applicable laws and, in
connection with the initial offering of, or subscription for, any of the Notes,
only with the prior written consent of the Company and in full compliance with
any requirements and procedures established by the Company with respect to any
such Foreign Offers and Sales. For the purposes of this paragraph, "United
States" means the United States of America, its territories, its possessions
(including the Commonwealth of Puerto Rico) and other areas subject to its
jurisdiction.
In particular and without limiting the generality of the foregoing:
(i) Each Underwriter, severally and not jointly, agrees to distribute,
in connection with any Foreign Offers and Sales, only those Prospectuses
used in connection therewith that have been appropriately "stickered" for
use in the jurisdiction in which such Foreign Offers and Sales are to be
made.
(ii) With respect to the United Kingdom, each Underwriter, severally
and not jointly, represents and agrees that (A) it has not offered or sold
and, prior to the expiry of the period of six months from the Closing Time,
will not offer or sell any Notes to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995, (B) it has complied and will comply with all applicable provisions of
the Financial Services Act of 1986 (the "Financial Services Act") with
respect to anything done by it in relation to the Notes in, from or
otherwise involving the United Kingdom and (C) it has only issued or passed
on, and will only issue or pass on, in the United Kingdom any document
received by it in connection with the issue of the Notes, other than any
document which consists of or any part of listing particulars,
supplementary listing particulars or any other document required or
permitted to be published by listing rules under Part IV of the Financial
Services Act, to a person who is of a kind described in Article 11(3) of
the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom such document may otherwise lawfully be
issued or passed on.
(iii) With respect to Japan, each Underwriter understands that the
Notes have not been, and will not be, registered under the Securities and
Exchange Law of Japan, and, accordingly, each Underwriter, severally and
not jointly, represents and agrees that (A) in connection with the initial
offering of any of the Notes, such Underwriter has not, directly or
indirectly, offered or sold, and will not, directly or
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indirectly, offer or sell, any of the Notes in Japan or to any resident of
Japan (including any corporation or other entity incorporated or organized
under the laws of Japan), or to others for re-offering or resale, directly
or indirectly, in Japan or to any such resident of Japan, except, in each
case, in compliance in all material respects with the Securities and
Exchange Law of Japan, and (B) with respect to any such sale of the Notes
made by such Underwriter, such Underwriter will effect all necessary
filings in connection with such sale, including, without limitation, any
required filings of notifications with the Minister of Finance of Japan, as
required pursuant to the provisions of relevant securities or foreign
exchange control legislation of Japan.
(iv) With respect to the Provinces of Canada (the "Provinces"), each
Underwriter, severally and not jointly, represents and agrees that, in
connection with the initial offering of any of the Notes, (A) such
Underwriter will not, directly or indirectly, offer or sell any of the
Notes in any of the Provinces or to, or for the benefit of, any resident of
any of the Provinces after the date (the "Canadian Ending Date") set by the
Company for the end of the offer of such Notes, and, without the prior
written consent of the Company, such Underwriter will not distribute or
permit to be distributed any Prospectus in any of the Provinces or to, or
for the benefit of, any resident of any of the Provinces after the Canadian
Ending Date, (B) with respect to anything done by such Underwriter in
relation to the Notes in, from, or otherwise involving, any of the
Provinces, such Underwriter has complied, and will comply, in all material
respects, with all applicable provisions of the securities legislation of
Canada and the Provinces (the "Canadian Securities Legislation")
(including, without limitation, the conveyance, or the provision of
assistance to the Company in conveying, any right of rescission, damages or
other right as required by applicable Canadian Securities Legislation) so
that any offer or sale of any of the Notes in the Provinces, or any of
them, will qualify for exemptions from prospectus, registration and
equivalent requirements, or exemptions from other applicable requirements,
as prescribed by the Canadian Securities Legislation in force at the time
when such offer or sale is made, provided that such offer or sale is made
pursuant to the Prospectus, as supplemented to the extent required by the
Canadian Securities Legislation (the Prospectus, as so supplemented,
hereinafter referred to as the "Canadian Offering Memorandum"), (C) with
respect to Notes offered or sold, or to be offered or sold, by such
Underwriter, or Notes purchased, or to be purchased, by such Underwriter,
it has provided, and will provide, investors, where required pursuant to
the provisions of applicable Canadian Securities Legislation, with (1) the
Canadian Offering Memorandum, and (2) a list of the documents filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the 1934 Act subsequent to the date of the Prospectus, dated April 2,
1998, and will obtain from each of such investors an acknowledgement in
form satisfactory to the Company, and (D) with respect to any such sale of
the Notes made by such Underwriter, such Underwriter will effect all
necessary filings in connection with such sale, including, without
limitation, any required filings of (x) reports of trades and (y) the
Canadian Offering Memorandum, in each case with provincial securities
commissions, as required pursuant to the provisions of applicable Canadian
Securities Legislation.
SECTION 4. Covenants of the Company.
The Company covenants with each Underwriter as follows:
(a) Notice of Certain Events. During the period from the date hereof to
and including the time at which the distribution of the Notes is completed, the
Company will notify the Underwriters promptly (i) of the effectiveness of any
post-effective amendment to the Registration Statement, (ii) of the receipt of
any comments from the Commission with respect to the Registration Statement, the
Rule 462(b) Registration Statement or the Prospectus, (iii) of any request by
the Commission for any amendment to the Registration Statement or the Rule
462(b) Registration Statement or any amendment or supplement to the Prospectus
or for additional information and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
Rule 462(b) Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the issuance
of any such stop order and, if any such stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
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(b) Proposed Filings. During the period from the date hereof to and
including the Closing Time, the Company will not file any amendment or
supplement to the Registration Statement or the Rule 462(b) Registration
Statement, or file any amendment or supplement to the Prospectus, in any such
case relating to the Notes, of which the Underwriters shall not previously have
been advised or to which the Underwriters shall reasonably object in writing,
unless, in the judgment of the Company and its counsel, such amendment or
supplement is necessary to comply with law.
(c) Copies of the Registration Statement, the Rule 462(b) Registration
Statement and the Prospectus. The Company will deliver to each of the
Underwriters one signed and as many conformed copies of the Registration
Statement (as originally filed), the Rule 462(b) Registration Statement and of
each amendment thereto relating to the Notes (including the Incorporated
Documents and any exhibits filed therewith or incorporated by reference therein)
as the Underwriters may reasonably request. The Company will furnish to the
Underwriters as many copies of the Prospectus (as amended or supplemented) as
the Underwriters shall reasonably request so long as the Underwriters are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes.
(d) Revisions of Prospectus -- Material Changes. So long as the
Underwriters are required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Notes, if any event shall occur or
condition exist as a result of which it is necessary, in the opinion of counsel
for the Company and of counsel for the Underwriters, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading, in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, prompt notice shall be
given to the Underwriters, and the Company will promptly prepare and file an
amendment or supplement to the Prospectus so that the Prospectus, as amended or
supplemented, will not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein not
misleading, in the light of the circumstances existing at the time it is
delivered to the Underwriters.
(e) Earnings Statements. The Company will make generally available to its
security holders a consolidated earnings statement (which need not be audited)
covering a period of at least twelve months commencing after the Closing Time
(but in no event commencing later than 90 days after the Closing Time), as soon
as is reasonably practicable after the end of such period, which earnings
statement shall satisfy the provisions of Section 11(a) and Rule 158 of the 1933
Act.
(f) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Underwriters, to qualify the Notes for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Underwriters may reasonably designate (provided no registration shall be
required in any jurisdiction outside the United States), and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; provided, however, that the Company will promptly notify the
Underwriters of any suspension of any such qualifications; and provided,
further, that the Company shall not be obligated to register or qualify as a
foreign corporation or take any action which would subject it to general service
of process in any jurisdiction where it is not now so subject.
(g) Filing of Prospectus. Immediately following the execution and delivery
of this Agreement, the Company will prepare and file or transmit for filing with
the Commission in accordance with Rule 424(b) of the 1933 Act Regulations,
copies of a supplement to the Prospectus containing the terms of the Notes and
such other information as the Underwriters and the Company deem appropriate.
SECTION 5. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(i) The preparation and filing of the Registration Statement, the Rule
462(b) Registration Statement and all amendments thereto and the Prospectus
and any amendments or supplements thereto and all Incorporated Documents;
(ii) The preparation, filing and printing of this Agreement and the
Remarketing Agreement;
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(iii) The preparation, printing, issuance and delivery of the Notes;
(iv) The fees and disbursements of the Trustee and its counsel, of any
calculation agent or exchange rate agent and of The Depository Trust
Company;
(v) The qualification of the Notes under securities laws in accordance
with the provisions of Section 4(f) hereof, including filing fees and the
reasonable fees and disbursements of counsel to the Underwriters in
connection therewith and in connection with the preparation of any Blue Sky
survey and any legal investment survey;
(vi) The printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the Registration Statement, the Rule 462(b)
Registration Statement and any amendments thereto, and of the Prospectus
and any amendments or supplements thereto relating to the Notes, and the
delivery by the Underwriters of the Prospectus and any amendments or
supplements thereto in connection with solicitations of offers to purchase,
or confirmations of sales of, the Notes;
(vii) The preparation, printing and delivery to the Underwriters of
copies of the Indenture;
(viii) Any fees charged by rating agencies for the rating of the
Notes; and
(ix) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc. relating
to the offering made hereby.
If this Agreement is terminated pursuant to any of the provisions hereof
(otherwise than by notice given by the Underwriters in connection with the
occurrence of any event set forth in clauses (ii) through (iv) of Section 10(a)
or pursuant to Section 11), the Company shall reimburse the Underwriters for all
of their out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Underwriters.
SECTION 6. Conditions of Underwriters' Obligations.
The obligations of the Underwriters hereunder are subject to the accuracy
of the representations and warranties on the part of the Company herein and the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all covenants and agreements herein contained on its part to
be performed and observed and to the following additional conditions precedent:
(a) At the Closing Time, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be instituted or threatened or, to the knowledge of the Company or
any of the Underwriters, contemplated by the Commission; no stop order
suspending the sale of the Notes in any jurisdiction designated by the
Underwriters pursuant to Section 4(f) shall have been issued and no proceedings
for that purpose shall have been instituted or threatened or, to the knowledge
of the Company or the Underwriters, shall be contemplated; any request of the
Commission for additional information (to be included in the Registration
Statement or Prospectus or otherwise) shall have been complied with to the
satisfaction of the Underwriters. The supplement to the Prospectus referred to
in Section 4(g) of this Agreement shall have been transmitted to the Commission
for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the
prescribed time period, and prior to Closing Time the Company shall have
provided evidence satisfactory to the Underwriters of such timely filing.
(b) The Underwriters shall have received an opinion from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq., Associate General Counsel for the Company, dated as of the Closing Time
and in form and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is validly existing in
good standing under the laws of the State of Delaware. Each Principal
Domestic Subsidiary is validly existing in good standing under the laws of
its state of incorporation.
(ii) The Company has full corporate power and corporate authority to
enter into and perform its obligations under this Agreement and the
Indenture, to borrow money as contemplated in this Agreement and the
Indenture, and to issue, sell and deliver the Notes.
(iii) This Agreement has been duly authorized, executed and delivered
by the Company.
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(iv) The Indenture and the Remarketing Agreement have been duly
authorized, executed and delivered by the Company and (assuming the due
authorization, execution and delivery of the Indenture and the Remarketing
Agreement by the Trustee and the Remarketing Dealer, respectively) are
valid and binding agreements of the Company enforceable against the Company
in accordance with their terms, except that such enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, (B) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (C) in the
case of the Remarketing Agreement any law limiting rights of indemnity or
contribution.
(v) No consent or approval of any United States governmental authority
or other United States person or United States entity is required in
connection with the issuance or sale of the Notes other than registration
thereof under the 1933 Act, qualification of the Indenture under the 1939
Act, and such registrations or qualifications as may be necessary under the
securities or Blue Sky laws of the various United States jurisdictions in
which the Notes are to be offered or sold.
(vi) The Notes have been duly authorized by the Company and, when
executed by the Company and authenticated by the Trustee in accordance with
the terms of the Indenture (assuming the due authorization, execution and
delivery of the Indenture by the Trustee) and issued to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company enforceable against the Company in accordance
with their respective terms, except that such enforceability may be limited
by (A) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and
(B) general principles of equity (regardless of whether such enforcement is
sought in a proceeding in equity or at law).
(vii) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the 1933 Act and the
Indenture has been qualified under the 1939 Act, and, to the best of such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated.
(viii) The execution and delivery of this Agreement, the Remarketing
Agreement and the Indenture by the Company, the issuance and sale of the
Notes and the fulfillment of this Agreement, the Remarketing Agreement and
the Indenture by the Company will not conflict with or constitute a breach
of or a default (with the passage of time or otherwise) under (A) the
Restated Certificate of Incorporation or Bylaws of the Company, in each
case, as amended, (B) any statute, law or regulation to which the Company
or any Principal Domestic Subsidiary or any of their respective properties
may be subject or (C) any judgment, decree or order, known to such counsel,
after reasonable inquiry, of any court or governmental agency or authority
entered in any proceeding to which the Company or any Principal Domestic
Subsidiary was or is now a party or by which it is bound, except that such
counsel may state that the opinion set forth in clause (B) of this
paragraph (viii) is limited to those statutes, laws or regulations in
effect on the date of such opinion which, in such counsel's experience, are
normally applicable to transactions of the type contemplated by this
Agreement and that such counsel expresses no opinion as to the securities
or Blue Sky laws of the various jurisdictions in which the Notes are to be
offered.
(ix) The Registration Statement and the Rule 462(b) Registration
Statement, as of their respective effective dates, and the Prospectus, as
of its date, including each Incorporated Document when such Incorporated
Document was filed or became effective, or if any such Incorporated
Document was amended, when such amendment was filed or became effective,
appeared on their face to be appropriately responsive in all material
respects to the applicable requirements of the 1933 Act or the 1934 Act, as
the case may be, except that in each case such counsel need not express an
opinion as to the financial statements and schedules and other financial
data included or incorporated by reference therein or as to the Form T-1.
(x) The statements in the Prospectus under the captions "Description
of the Debt Securities" and "Description of the Notes," insofar as they
purport to summarize certain provisions of documents specifically referred
to therein, are in all material respects accurate summaries of such
provisions.
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(xi) Except as set forth in the Prospectus (including the Incorporated
Documents), there is not pending or, to the knowledge of such counsel,
after reasonable inquiry, threatened any action, suit or proceeding against
the Company or any of its subsidiaries before or by any court or
governmental agency or body, which is likely (to the extent not covered by
insurance) to have a material adverse effect on the consolidated financial
condition of the Company and its subsidiaries, taken as a whole.
(xii) To the best of such counsel's knowledge, after reasonable
inquiry, there is no contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement that is not described or filed as
required.
(xiii) To the best of such counsel's knowledge, after reasonable
inquiry, the Company is not in violation of its Restated Certificate of
Incorporation or Bylaws, in each case, as amended.
(xiv) To the best of such counsel's knowledge, after reasonable
inquiry, the execution and delivery of this Agreement, the Remarketing
Agreement and the Indenture by the Company, the issuance and sale of the
Notes and the performance by the Company of its obligations under this
Agreement, the Remarketing Agreement and the Indenture will not conflict
with or constitute a breach of or a default (with the passage of time or
otherwise) under any agreement or instrument that is, individually or in
the aggregate, material to the Company and its subsidiaries, taken as a
whole, to which the Company is a party or by which it is bound.
In rendering such opinion such counsel may state that with respect to
certain matters he has relied upon advice of other counsel employed by the
Company who are more familiar with such matters.
In addition, such counsel shall state that he has participated in
conferences with officers and other representatives of the Company, outside
counsel for the Company, representatives of the independent public
accountants for the Company, representatives of the Underwriters and
counsel for the Underwriters, at which conferences the contents of the
Registration Statement, the Rule 462(b) Registration Statement and
Prospectus and related matters were discussed and, although he is not
passing upon, and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Rule 462(b) Registration Statement or the Prospectus (other
than as set forth in paragraph (x) above) and has not made any independent
check or verification thereof, on the basis of the foregoing, nothing has
come to such counsel's attention that leads him to believe that either the
Registration Statement (including the Incorporated Documents) at the time
such Registration Statement became effective, and if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed by
the Company with the Commission subsequent to the effectiveness of the
Registration Statement and prior to the date of such statement, then at the
time such amendment became effective or at the time of the most recent such
filing (to the extent deemed to be incorporated by reference therein), or
the Rule 462(b) Registration Statement at the time such Rule 462(b)
Registration Statement became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that
the Prospectus (including the Incorporated Documents) as of its date and as
of the Closing Time contained or contains an untrue statement of a material
fact or omitted 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, except that such counsel need express no opinion with
respect to the financial statements, schedules and other financial data
included or incorporated by reference in the Registration Statement, the
Rule 462(b) Registration Statement or Prospectus or with respect to the
Form T-1.
(c) The Underwriters shall have received an opinion from ▇▇▇▇▇ & Wood LLP,
counsel to the Underwriters, dated as of the Closing Time and in form and
substance satisfactory to the Underwriters.
(d) Officer's Certificate. Except as contemplated in the Prospectus or
reflected therein by the filing of any amendment or supplement thereto or any
Incorporated Document, at the Closing Time, there shall not have been, since the
date of the most recent consolidated financial statements included or
incorporated by reference in the Prospectus, any material adverse change in the
consolidated financial condition of the Company and its subsidiaries, taken as a
whole. The Underwriters shall have received a certificate signed by an officer
of the Company, dated as of the Closing Time, to the effect (i) that there has
been no such material adverse change, (ii) that the representations and
warranties of the Company contained in Section 1(a) hereof
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(other than Section 1(a)(vi)) are true and correct in all material respects with
the same force and effect as though expressly made at and as of the date of such
certificate, (iii) that the Company has complied with all agreements and
satisfied all conditions required by this Agreement or the Indenture on its part
to be performed or satisfied at or prior to the date of such certificate and
(iv) that no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the best of such officer's knowledge, no
proceedings for that purpose have been initiated or threatened by the
Commission.
(e) Comfort Letter. On the date hereof, the Underwriters shall have
received a letter from the Company's independent public accountants, dated as of
the date hereof and in form and substance satisfactory to the Underwriters,
containing statements and information of a type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Registration Statement and the Prospectus; and, if financial
statements for any assets, business or entity acquired by the Company are
included or incorporated by reference in the Registration Statement or the
Prospectus, the Underwriters shall have received a similar "comfort letter" from
a firm of independent public accountants, dated as of the date hereof and in
form and substance satisfactory to the Underwriters, with respect to such
financial statements and any financial information with respect to such assets,
business or entity, as the case may be, contained or incorporated by reference
in the Registration Statement and the Prospectus. Without limitation to the
foregoing, the letter delivered by the Company's independent public accountants
shall state that nothing has come to their attention that caused them to believe
that at a specified date not more than five days prior to the date of such
letter, there was any change in the outstanding capital stock of the Company or
any increase in consolidated long-term debt of the Company or any decrease in
the stockholders' equity of the Company, in each case as compared with the
amounts shown on the most recent consolidated balance sheet of the Company
incorporated by reference in the Registration Statement and Prospectus or,
during the period from the date of such balance sheet to a specified date not
more than five days prior to the date of such letter, there were any decreases,
as compared with the corresponding period in the preceding year, in consolidated
net sales and operating revenues or net income of the Company, except in each
such case as set forth in or contemplated by the Registration Statement and
Prospectus or except for such exceptions enumerated in such letter as shall have
been agreed to by the Underwriters and the Company.
(f) Subsequent Delivery of Comfort Letter. At the Closing Time, the
Underwriters shall have received from each firm of independent public
accountants which delivered a letter pursuant to subsection (e) of this Section,
a letter, dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not more
than five days prior to the Closing Time.
(g) Other Documents. At the Closing Time, counsel for the Underwriters
shall have been furnished with resolutions of the Company's Board of Directors
authorizing and approving the issuance and sale of the Notes and matters related
thereto and such other documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Notes as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained.
(h) Tax Opinion. The Underwriters shall have received an opinion from
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, dated as of
the Closing Time and in form and substance satisfactory to counsel for the
Underwriters, to the effect that although the discussion in the Prospectus under
the captions "United States Taxation" and "Certain United States Federal Tax
Considerations" do not purport to discuss all possible United States federal
income tax consequences of the purchase, ownership, and disposition of the
Notes, in the opinion of such counsel, such discussions together constitute, in
all material respects, a fair and accurate summary of the United States federal
income tax consequences of the purchase, ownership, and disposition of the
Notes, based upon current law and subject to the qualifications set forth
therein.
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by any of
the Underwriters by notice to the Company at any time at or prior to the Closing
Time, and any such termination shall be without liability of any party to any
other
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party, except as provided in Section 5, and except that the indemnity and
contribution agreements set forth in Sections 7 and 8 hereof and the provisions
of Section 9 hereof shall remain in effect.
SECTION 7. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel chosen by the
Underwriters), as incurred, insofar as such loss, liability, claim, damage
or expense arises out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arises out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel chosen by the
Underwriters), as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever, insofar as such loss, liability, claim, damage or expense
arises out of any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever (including, subject to
the limitations set forth in subsection (c) below, the reasonable fees and
disbursements of counsel chosen by the Underwriters), as incurred,
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever, based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission;
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense (A) to the extent arising out of or based upon any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon the Form T-1 under the 1939 Act filed as an exhibit to the
Registration Statement; or (B) to the extent arising out of any untrue statement
or omission or alleged untrue statement or omission in the Prospectus, if such
untrue statement or alleged untrue statement or omission or alleged omission is
corrected in an amendment or supplement to the Prospectus and if, having
previously been furnished by or on behalf of the Company with copies of the
Prospectus, as so amended or supplemented, such Underwriter thereafter failed to
deliver such Prospectus, as so amended or supplemented, prior to or concurrently
with the sale of a Note or Notes to the person asserting such loss, liability,
claim, damage or expense who purchased such Note or Notes that are the subject
thereof from such Underwriter; or (C) as to which such Underwriter may be
required to indemnify the Company pursuant to the provisions of subsection (b)
of this Section 7; or (D) if such loss, liability, claim, damage or expense is
covered by any other written agreement between the Company and such Underwriter
pertaining to the sale of the Notes pursuant to which such Underwriter may be
required to indemnify the Company for such loss, liability, claim, damage or
expense.
(b) Indemnification of the Company. Each Underwriter agrees, severally and
not jointly, to indemnify and hold harmless the Company, its directors, each of
its officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 7, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement or the Prospectus in reliance upon
and in
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conformity with written information furnished to the Company by or on behalf of
any such Underwriter expressly for use in the Registration Statement or the
Prospectus.
(c) General. (i) In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought against
any Underwriter or any person controlling such Underwriter, based upon the
Registration Statement or the Prospectus and with respect to which indemnity may
be sought against the Company pursuant to this Section 7, such Underwriter or
controlling person shall promptly notify the Company in writing, and the Company
shall assume the defense thereof, including the employment of counsel and
payment of all expenses. Any such Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and expenses
of such separate counsel shall be at the expense of such Underwriter or such
controlling person, unless (A) the employment of such counsel shall have been
specifically authorized in writing by the Company, (B) the Company shall have
failed to assume the defense and employ counsel or (C) the named parties to any
such action, suit or proceeding (including any impleaded parties) shall include
both such Underwriter or such controlling person and the Company, and such
Underwriter or such controlling person shall have been advised by such counsel
that there may be one or more legal defenses available to it that are different
from, or additional to, those available to the Company (in which case, if such
Underwriter or such controlling person notifies the Company in writing that it
elects to employ separate counsel at the expense of the Company, the Company
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Underwriter or such controlling person, it being
understood, however, that the Company shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all such Underwriters and such
controlling persons, which firm shall be designated in writing by a majority of
all such Underwriters, on behalf of all of such Underwriters and such
controlling persons).
(ii) In case any action, suit or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought against the Company,
any of the Company's directors or officers, or any person controlling the
Company, with respect to which indemnity may be sought against any Underwriter
pursuant to this Section 7, such Underwriter shall have the rights and duties
given to the Company by subsection (c)(i) of this Section 7, and the Company,
the Company's directors and officers and any such controlling person shall have
the rights and duties given to the Underwriters by subsection (c)(i) of this
Section 7.
SECTION 8. Contribution.
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 7 hereof is for any reason
held to be unenforceable by the indemnified parties, although applicable in
accordance with its terms, the Company and each Underwriter shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Company and the
Underwriters, as incurred, (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company, on the one hand, and each of the
Underwriters, on the other hand, from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and of the Underwriters, on the other hand, in connection with the
statements or omissions that resulted in such losses, liabilities, claims,
damages and expenses. The relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, shall be deemed to be in the same
proportions as the total net proceeds from the sale of the Notes (before
deducting expenses) received by the Company, on the one hand, and the total
underwriting discounts and commissions received by each Underwriter, on the
other hand, bear to the total price to public of the Notes as set forth in the
table on the cover page of the Prospectus. 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
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Underwriters' respective obligations to contribute pursuant to this Section 8
are several in proportion to the respective numbers of Notes they have purchased
hereunder, and not joint. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Notes underwritten by it and distributed
by 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 ▇▇▇▇
▇▇▇) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company. Any party entitled to contribution hereunder will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section 8, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have otherwise than under this Section 8.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
or contained in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Notes.
SECTION 10. Termination.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time if (i) between the date
hereof and the Closing Date, there shall have been any material adverse change
in the consolidated financial condition of the Company and its subsidiaries,
taken as a whole, (ii) there shall have occurred any material adverse change in
the financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis, the effect of
which shall be such as to make it, in the reasonable judgment of the
Underwriters, impracticable to market or to enforce contracts for sale of the
Notes or other debt securities, (iii) trading in any securities of the Company
shall have been suspended by the Commission or a national securities exchange in
the United States, or if trading generally on the New York Stock Exchange shall
have been suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required, by
said exchange or by order of the Commission or any other governmental authority,
or if a banking moratorium shall have been declared by either Federal or New
York authorities, (iv) any nationally recognized securities rating agency in the
United States shall have publicly announced that it has (A) placed the Notes or
the Company's long-term debt generally on what is commonly termed a "watch list"
for possible downgrading or (B) downgraded the Notes or the Company's long-term
debt generally, or (v) the Company shall have failed to furnish or cause to be
furnished the certificates, opinions or letters referred to in Section 6 hereof.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 5.
SECTION 11. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at Closing Time to purchase
the Notes which it or they are obligated to purchase under this Agreement (the
"Defaulted Notes"), the non-defaulting Underwriters shall have the right, within
24 hours thereafter, to make arrangements for one or more of such non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Notes in such
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amounts as may be agreed upon and upon the terms herein set forth; if, however,
such non-defaulting Underwriters shall not have completed such arrangements
within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of the Notes, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Notes exceeds 10%
of the aggregate principal amount of the Notes, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting Underwriter
from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the non-defaulting Underwriters or the Company shall have
the right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
SECTION 12. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to them
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, World Financial Center,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇.▇. ▇▇▇▇▇▇
Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10260-0060,
Attention: Transaction Execution Group. Notices to the Company shall be directed
to it at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of
Vice President and Treasurer.
SECTION 13. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 7 and 8 hereof and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provisions herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
SECTION 14. Governing Law.
This Agreement and the rights and obligations of the parties created hereby
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in such State.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
OCCIDENTAL PETROLEUM CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED, as of the date
first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Authorized Signatory
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SCHEDULE A
AGGREGATE
AGGREGATE AGGREGATE PRINCIPAL
PRINCIPAL PRINCIPAL AMOUNT OF
AMOUNT OF AMOUNT OF MANDATORILY
NAME OF UNDERWRITER SEVEN-YEAR NOTES THIRTY-YEAR DEBENTURES TENDERED NOTES
---------------------------------------------- ---------------- ---------------------- --------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated..................... $ 50,000,000 $ 40,000,000 $ 90,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. .................. 50,000,000 40,000,000 90,000,000
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇................ 50,000,000 40,000,000 90,000,000
Chase Securities Inc. ........................ 50,000,000 40,000,000 90,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated............. 50,000,000 40,000,000 90,000,000
------------ ------------ ------------
Total............................ $250,000,000 $200,000,000 $450,000,000
============ ============ ============
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