EXHIBIT 1.1
OCCIDENTAL PETROLEUM CORPORATION
UNDERWRITING AGREEMENT
February 5, 1999
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
CHASE SECURITIES INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
As Representatives of the Several Underwriters
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Occidental Petroleum Corporation, a Delaware corporation (the "Company"),
confirms its agreement with ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("▇.▇. ▇▇▇▇▇▇") and each
of the underwriters named in Schedule A hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 11 hereof), for whom ▇.▇. ▇▇▇▇▇▇, Chase
Securities, Inc., NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc. are acting as representatives (in such capacity, the "Representatives"),
with respect to the sale by the Company and the purchase by the Underwriters of
$450 million aggregate principal amount of the Company's 7.65% Senior Notes due
February 15, 2006 (the "2006 Notes") and $350 million aggregate principal amount
of the Company's 8.45% Senior Notes due February 15, 2029 (the "2029 Notes" and,
together with the 2006 Notes, 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. 333-69303) and, if
applicable, one or more amendments thereto for the registration of, among other
things, its 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
(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.
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(a) The Company represents and warrants to 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
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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, if any, 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, at the time it
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 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 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 Prospectus or any preliminary prospectus, or any amendment
or supplement thereto, made in reliance upon information furnished to the
Company in writing by 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), 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), 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 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) is, 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)
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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 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 by the Company, the issuance and sale of the
Notes and the performance by the Company of its obligations under this
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
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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.
(b) Additional Certifications. Any certificate signed by any officer of
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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 the Underwriters as to the matters
covered thereby on the date of such certificate.
SECTION 2 Sale and Delivery to the Underwriter; Closing.
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(a) Purchase and Sale. On the basis of the representations and warranties
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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 99.202% of the principal amount thereof, the principal amount of the
2006 Notes set forth on Schedule A opposite the name of such Underwriter, and at
98.982% of the principal amount thereof, the principal amount of 2029 Notes set
forth on Schedule A opposite the name of such Underwriter.
(b) Closing Time. Payment of the purchase price for, and delivery of the
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certificates for, the Notes shall be made at the offices of ▇▇▇▇▇ & ▇▇▇▇ LLP,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place
as shall be agreed upon by the Representatives and the Company, at 10:00 a.m.,
New York City time, on February 10, 1999 (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 Representatives 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 the Representatives for its respective account,
to accept delivery of, and receipt for, and make payments of the purchase price
for, the Notes which such Underwriter has agreed to
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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.
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Each Underwriter, severally and not jointly, represents and agrees that (i)
it has not solicited, and will not solicit, offers to purchase any of the Notes
from, (ii) it has not sold, and will not sell, any of the Notes to, and (iii) it
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
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in connection with the initial offering of any of the Notes, it has not,
directly or indirectly, offered or sold, and will not, directly or
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.
(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) it 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, it 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, it 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 January 8, 1999, 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, it
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.
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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
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notify the Representatives 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.
(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 Representatives shall not
previously have been advised or to which the Representatives 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)
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Registration Statement and the Prospectus. The Company will deliver to each
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of the Underwriters one copy of the signed and as many conformed copies of
the Registration Statement (as originally filed), the Rule 462(b)
Registration Statement, if any, 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.
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(e) Earnings Statements. The Company will make generally available
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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 Representatives, to qualify the Notes for offering and
sale under the applicable securities laws of such states and other
jurisdictions as the Representatives 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
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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.
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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;
(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
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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 Representatives in connection with the
occurrence of any event set forth in clauses (ii) through (iv) of Section
10(a)), 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.
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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 the Underwriters, contemplated by the Commission; no stop order
suspending the sale of the Notes in any jurisdiction designated by the
Representatives 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 Representatives. 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
Representatives 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
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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.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization,
execution and delivery of the Indenture by the Trustee) is a valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except (x) as may be subject to or limited
by (A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, (B) the effect of general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law),
(C) requirements that a claim with respect to any security
authenticated and delivered under the Indenture denominated other than
in United States dollars (or a judgment denominated other than in
United States dollars in respect of such claim) be converted into
United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (D) governmental authority to
limit, delay or prohibit the making of payments outside the United
States or in foreign currency or composite currency and (y) that the
waiver contained in Section 515 of the Indenture may be deemed
unenforceable.
(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, except that such counsel may state that the opinion
set forth in this paragraph (v) is limited to those consents and
approvals which, in such counsel's experience, are normally applicable
to transactions of the type contemplated by the Underwriting
Agreement.
(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 (x) as may be subject to or limited by (A) bankruptcy,
insolvency, reorganization,
11
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally or (B) the effect of general principles
of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law) and (y) that the waiver contained in
Section 515 of the Indenture may be deemed unenforceable.
(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 and the
Indenture by the Company, the issuance and sale of the Notes and the
performance of this 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 may state that, other than as set forth in clause
(x) of this Section 6(b), such counsel assumes no responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus and 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 Securities," "Description of Senior Debt Securities"
and "Description of the Notes," insofar as they purport to summarize
certain provisions of documents
12
specifically referred to therein, are in all material respects
accurate summaries of such provisions.
(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 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 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, (or if an
amendment to the Registration Statement or an Annual Report on Form 10-K has
been filed by the Company with the Commission subsequent to the effectiveness of
the Registration Statement and prior to the date of such statement, then at the
time such
13
amendment became effective or at the time of the most recent such filing (to the
extent deemed to be incorporated by reference therein), as the case may be) or
any 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 Underwriter 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 (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
Representatives, 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
14
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
Representatives 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.
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 the
Representatives 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 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
15
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,
16
made in the Registration Statement or the Prospectus in reliance upon and in
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 all
such controlling persons, which firm shall be designated in writing by the
Representatives, on behalf of all such Underwriters and all 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
17
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 as set forth on the cover page of
the Prospectus, on the one hand, and the total underwriting discounts and
commissions received by each Underwriter, on the other hand, bear to the total
purchase price to the public of the Notes as set forth 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 Underwriters' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective principal amount 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 to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) 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.
18
SECTION 10 Termination.
------------
(a) The Representatives 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
Representatives, 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) since the date of this Agreement 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 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.
19
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 ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, 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,
including, without limitation, Section 5-1401 of the New York General
Obligations Law.
20
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/ J. R. ▇▇▇▇▇▇
------------------------------------
Name: J. R. ▇▇▇▇▇▇
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
CHASE SECURITIES INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
For themselves and as Representatives of the Underwriters
named in Schedule A hereto.
BY: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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SCHEDULE A
AGGREGATE PRINCIPAL AGGREGATE PRINCIPAL
AMOUNT OF 2006 AMOUNT OF 2029
NAME OF UNDERWRITER NOTES NOTES
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▇.▇. ▇▇▇▇▇▇ Securities Inc............................. $202,500,000 $157,500,000
Chase Securities Inc................................... 40,500,000 31,500,000
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC.................. 40,500,000 31,500,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc............................... 40,500,000 31,500,000
ABN AMRO Incorporated.................................. 18,000,000 14,000,000
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp.................................. 18,000,000 14,000,000
Credit Suisse First Boston Corporation................. 18,000,000 14,000,000
Deutsche Bank Securities Inc........................... 18,000,000 14,000,000
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation.... 18,000,000 14,000,000
Scotia Capital Markets (USA) Inc....................... 18,000,000 14,000,000
Warburg Dillon Read LLC................................ 18,000,000 14,000,000
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Total............................................. $450,000,000 $350,000,000
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