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EXHIBIT 1.2
APACHE CORPORATION
(a Delaware corporation)
1,600,000 Shares of Common Stock
(Par Value $1.25 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
July 27, 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
Apache Corporation, a Delaware corporation (the "Company"), confirms its
agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, Credit Suisse First Boston (Europe) Limited and Salomon Brothers
International Limited (collectively, the "International Managers", which term
shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), with respect to the issue and sale by the Company and the
purchase by the International Managers, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $1.25 per share, of the
Company ("Common Stock") and related rights to purchase its Common Stock (the
"Rights") set forth in said Schedule A, and with respect to the grant by the
Company to the International Managers, acting severally and not jointly, of the
option described in Section 2(b) hereof to purchase all or any part of 240,000
additional shares of Common Stock and related Rights to cover over-allotments,
if any. The aforesaid 1,600,000 shares of Common Stock and related Rights (the
"Initial International Securities") to be purchased by the International
Managers and all or any part of the 240,000 shares of Common Stock and related
Rights subject to the option described in Section 2(b) hereof (the
"International Option Securities") are hereinafter called, collectively, the
"International Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 6,400,000 shares of Common Stock
and related Rights (the "Initial U.S. Securities") through arrangements with
certain underwriters in the United States and Canada (the "U.S. Underwriters")
for which ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇, Sachs
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& Co., Credit Suisse First Boston Corporation and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. are
acting as representatives (the "U.S. Representatives") and the grant by the
Company to the U.S. Underwriters, acting severally and not jointly, of an option
to purchase all or any part of the U.S. Underwriters' pro rata portion of up to
960,000 additional shares of Common Stock and related Rights solely to cover
over-allotments, if any (the "U.S. Option Securities" and, together with the
International Option Securities, the "Option Securities"). The Initial U.S.
Securities and the U.S. Option Securities are hereinafter called the "U.S.
Securities". It is understood that the Company is not obligated to sell and the
International Managers are not obligated to purchase, any Initial International
Securities unless all of the Initial U.S. Securities are contemporaneously
purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities", and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the International Managers propose to make a
public offering of the International Securities as soon as the International
Managers deem advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-32580) for the
registration of the Company's preferred stock, depositary shares, debt
securities, common stock purchase contracts, common stock purchase units, the
Common Stock and the Rights, including the Securities, 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"). Promptly after execution and delivery
of this Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A of the 1933 Act Regulations and
paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if
the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, prepare and file a term sheet (a "Term Sheet") in accordance with
the provisions of Rule 434 and Rule 424(b). Two forms of prospectus are to be
used in connection with the offering and sale of the Securities: one relating to
the International Securities (the "Form of International Prospectus") and one
relating to the U.S. Securities (the "Form of U.S. Prospectus"). The Form of
International Prospectus is identical to the Form of U.S. Prospectus, except for
the front cover and back cover pages and the information under the caption
"Underwriting." The information included in any such prospectus or in any such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each Form of
International Prospectus and Form of U.S. Prospectus that omitted, as
applicable, the Rule 430A
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Information or the Rule 434 Information, that was used after effectiveness of
the registration statement and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final Form of
International Prospectus and the final Form of U.S. Prospectus, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the forms first furnished to the Underwriters for use in
connection with the offering of the Securities are herein called the
"International Prospectus" and the "U.S. Prospectus," respectively, and
collectively, the "Prospectuses." If Rule 434 is relied on, the terms
"International Prospectus" and "U.S. Prospectus" shall refer to the preliminary
International Prospectus dated July 21, 2000 and preliminary U.S. Prospectus
dated July 21, 2000, respectively, each together with the applicable Term Sheet
and all references in this Agreement to the date of such Prospectuses shall mean
the date of the applicable Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
International Prospectus, the U.S. Prospectus or any Term Sheet 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 ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules and
other information that is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of
International Prospectus and Form of U.S. Prospectus) or the Prospectuses (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information that is incorporated by
reference in the Registration Statement, any preliminary prospectus (including
the Form of International Prospectus and Form of U.S. Prospectus) or the
Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") that is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to each International Manager as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b), hereof and agrees with each International
Manager, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule
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462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the
Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission promulgated thereunder; the Registration Statement and the
Rule 462(b) Registration Statement, if any, each at the time it became
effective, did not, and at each time thereafter at which any amendment to
the Registration Statement becomes effective or any Annual Report on Form
10-K is filed by the Company with the Commission and at the Closing Time
(and, if any International Option Securities are purchased, at the Date of
Delivery), 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 not misleading. Neither of the Prospectuses
nor any amendments or supplements thereto, at the time the Prospectuses or
any amendments or supplements thereto were issued and at the Closing Time
(and, if any International Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material fact
or omitted or will omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading. If Rule 434 is used, the Company will
comply with the requirements of Rule 434. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the International Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any International Manager expressly for use in the
Registration Statement or the International Prospectus.
Each preliminary prospectus and the prospectuses filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectuses delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectuses, at the time they were or hereafter are filed with the
Commission, complied or when so filed will comply, as the case may be, in
all material respects with the requirements of the 1934 Act and the rules
and regulations of the Commission thereunder ("the 1934 Act Regulations"),
and, when read together with the other information in the Prospectuses, at
the time the Registration Statement became effective, at the time the
Prospectuses were issued and at the Closing Time (and, if any
International Option Securities are purchased,
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at the Date of Delivery), 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 light of the
circumstances under which they were or are made, not misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectuses are
independent public accountants with respect to the Company as required by
the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements and any
supporting schedules of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the
Prospectuses present fairly the consolidated financial position of the
Company and its subsidiaries as of the dates indicated and the
consolidated results of their operations for the periods specified; except
as stated therein, said financial statements have been prepared in
conformity with U.S. generally accepted accounting principles applied on a
consistent basis. The supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectuses present
fairly the information required to be stated therein. The pro forma
financial statements and the related notes thereto, if any, included or
incorporated by reference in the Registration Statement and the
Prospectuses present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly compiled
on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred
to therein.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectuses, except as may otherwise be stated therein or
contemplated thereby, (1) there has been no material adverse change in the
condition, financial or otherwise, or in the results of operations,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, (2) there have been no material transactions entered
into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, and (3) except for regular dividends on the
Common Stock and the Company's preferred stock, there has been no dividend
or distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware with corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its
obligations under this Agreement and the U.S. Purchase Agreement; and the
Company is duly qualified as a foreign corporation to transact business
and is in good standing in the State of Texas and in each other
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
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business, except where the failure so to qualify and be in good standing
would not have a material adverse effect on the condition, financial or
otherwise, or the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary"
of the Company as defined in Rule 405 of Regulation C of the 1933 Act
Regulations (collectively, the "Significant Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and conduct
its business as described in the Prospectuses and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify and be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
results of operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and, except as
described in the Prospectuses, all of the issued and outstanding capital
stock of each Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, except for directors'
qualifying shares (if applicable), is owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectuses (except
for issuances, if any, described in the Prospectuses, pursuant to this
Agreement and the U.S. Purchase Agreement, pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of convertible securities or options referred to
in the Prospectuses). The shares of issued and outstanding capital stock
of the Company set forth therein have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the Company.
(ix) Authorization of Agreements. This Agreement and the
International Purchase Agreement have been duly authorized, executed and
delivered by the Company and, upon execution and delivery by the
respective Underwriters, will be valid and legally binding agreements of
the Company.
(x) Authorization and Description of Securities. The Securities to
be purchased by the International Managers and the U.S. Underwriters from
the Company have been duly and validly authorized for issuance, offer and
sale to the International Managers pursuant to this Agreement and the U.S.
Underwriters pursuant to the U.S. Purchase Agreement, respectively, and,
when issued and delivered by the Company pursuant to this Agreement and
the U.S. Purchase Agreement, respectively, against payment of the
consideration set forth herein and the U.S. Purchase Agreement,
respectively, will be validly issued, fully paid and non-assessable; the
Securities conform in all material respects to all statements relating
thereto contained in the Prospectuses and
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such description conforms to the rights set forth in the instruments
defining the same; and the issuance of the Securities will not be subject
to any preemptive or similar rights. The Rights have been duly and validly
authorized for issuance by the Company in accordance with the Rights
Agreement, dated as of January 31, 1996, between the Company and Norwest
Bank Minnesota, N.A.
(xi) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it is a
party or by which it or any of them or their properties may be bound,
where the consequences of such violation or default would have a material
adverse effect on the condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and the execution, delivery and
performance of this Agreement and the U.S. Purchase Agreement and the
consummation of the transactions contemplated in this Agreement, the U.S.
Purchase Agreement and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectuses under the caption
"Use of Proceeds") have been duly authorized by all necessary corporate
action of the Company and do not and will not conflict with or constitute
a breach of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any of its subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company or any
subsidiary thereof is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any of its subsidiaries or any law, administrative regulation or
administrative or court order or decree, where the consequences of such
conflict, breach, creation, imposition, violation or default would have a
material adverse effect on the condition, financial or otherwise, or the
results of operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xii) Absence of Proceedings. Except as may be included or
incorporated by reference in the Registration Statement and the
Prospectuses, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any of its
subsidiaries, that might, in the opinion of the Company, result in any
material adverse change in the condition, financial or otherwise, or in
the results of operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, or could
reasonably be expected to materially and adversely affect the properties
or assets thereof or could reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in this
Agreement and the U.S. Purchase Agreement or the performance by the
Company of its obligations hereunder or thereunder.
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(xiii) Accuracy of Exhibits. There are no contracts or documents
that are required to be filed as exhibits to the Registration Statement by
the 1933 Act or by the 1933 Act Regulations that have not been so filed.
(xiv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
trademarks, service marks and trade names necessary to conduct the
business now operated by them, except as set forth or incorporated by
reference in the Registration Statement or except where the failure to own
or possess the same would not materially adversely affect the condition,
financial or otherwise, or the results of operations, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, and neither the Company nor any of its subsidiaries has
received any notice of any infringement of or conflict with asserted
rights of others with respect to any trademarks, service marks or trade
names that, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially adversely affect the
condition, financial or otherwise, or the results of operations, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(xv) Absence of Further Requirements. No consent, approval,
authorization, order, decree, registration or qualification of or with any
court or governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement and the
U.S. Purchase Agreement or in connection with the sale of Securities
hereunder, except such as have been obtained or rendered, as the case may
be, or as may be required under the 1933 Act or the 1933 Act Regulations
and foreign or state securities or blue sky laws.
(xvi) Possession of Licenses and Permits. Neither the Company nor
any of its subsidiaries is in violation of any law, ordinance,
governmental rule or regulation or court decree to which it may be subject
or has failed to obtain any license, permit, franchise or other
governmental authorization necessary to the ownership of its property or
to the conduct of its business, which violation or failure would
materially adversely affect the condition, financial or otherwise, or the
results of operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and the Company
and its subsidiaries own or possess or have obtained all governmental
licenses, permits, consents, orders, approvals and other authorizations
and have properly filed with the appropriate authorities all notices,
applications and other documents necessary to lease or own their
respective properties and to carry on their respective businesses as
presently conducted, except where the failure to possess such licenses or
authorizations or make such filings would not materially adversely affect
the condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(xvii) Title to Property. The Company and its subsidiaries have
legal, valid and defensible title to all of their interests in oil and gas
properties and to all other real and personal property owned by them and
any other real property and buildings held under lease by the Company and
its subsidiaries are held by them under valid, subsisting and enforceable
leases, in each case free and clear of all mortgages, pledges, liens,
security
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interests, claims, restrictions or encumbrances and defects of any kind,
except such as (1) are described in the Prospectuses, (2) liens and
encumbrances under operating agreements, unitization and pooling
agreements, production sales contracts, farm-out agreements and other oil
and gas exploration and production agreements, in each case that secure
payment of amounts not yet due and payable for the performance of other
inchoate obligations and are of a scope and nature customary in connection
with similar drilling and producing operations, or (3) those that do not
have a material adverse effect on the condition, financial or otherwise,
or the results of operations, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise.
(xviii) Investment Company Act. Neither the Company nor any of its
subsidiaries is required to be registered under the Investment Company Act
of 1940, as amended (the "1940 Act").
(xix) Environmental Laws. Except as described in the Registration
Statement, (1) neither the Company nor any of its subsidiaries is in
violation of any local or foreign laws or regulations relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), except such violations as would not, singly or in
the aggregate, have a material adverse effect on the condition, financial
or otherwise, or the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, and (2) to the best of the Company's knowledge, there are no
events or circumstances that could reasonably be expected to be the basis
of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to any Hazardous Materials
or the violation of any Environmental Laws, that, singly or in the
aggregate, could reasonably be expected to have a material adverse effect
on the condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(xx) Independent Petroleum Engineers. The petroleum engineers who
have consented to being named as having reviewed certain reserve data
included or incorporated by reference in the Prospectuses are independent
engineers with respect to the Company and its subsidiaries.
(xxi) Oil and Gas Reserve Estimates. The information underlying the
estimates of oil and gas reserves as described in the Prospectuses is
complete and accurate in all material respects (or, with regard to any
information underlying the estimates prepared by any petroleum engineers
retained by the seller of such oil and gas reserves, is, to the best
knowledge of the Company after reasonable investigation, complete and
accurate in all material respects); other than production of the reserves
in the ordinary course of business and intervening product price
fluctuations described in the Prospectuses, the
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Company is not aware of any facts or circumstances that would result in a
material adverse change in the reserves or the present value of future net
cash flows therefrom as described in the Prospectuses. Estimates of such
reserves and present values comply in all material respects with the
applicable requirements of Regulation S-X and Industry Guide 2 under the
1933 Act.
(xxii) Registration Rights. There are no contracts, agreements or
understandings between the Company or any of its subsidiaries, on the one
hand, and any person, on the other hand, granting such person the right to
require the Company or any of its subsidiaries to file a registration
statement under the 1933 Act with respect to any securities (other than
contractual obligations by the Company to file registration statements on
Form S-8 covering issuances of Common Stock pursuant to its employee or
director stock, bonus or compensation plans) or to require the Company or
any of its subsidiaries to include such securities in any registration
statement filed by the Company under the 1933 Act or in any public
offering of securities.
(b) Officer's Certificates. Any certificate signed by any director or
officer of the Company and delivered to the Global Coordinator, the
International Managers or to counsel for the International Managers shall be
deemed a representation and warranty by the Company to each International
Manager as to the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each International Manager, severally and not jointly,
and each International Manager, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial International Securities set forth in Schedule A opposite the name of
such International Manager, plus any additional number of Initial International
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the International Managers,
severally and not jointly, to purchase up to an additional 240,000 shares of
Common Stock and related Rights at the price per share set forth in Schedule B,
less an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial International Securities but not payable on
the International Option Securities. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments that may be made in
connection with the offering and distribution of the Initial International
Securities upon notice by the Global Coordinator to the Company setting forth
the number of International Option Securities as to which the several
International Managers are then exercising the option and the time and date of
payment and delivery for such International Option Securities. Any such time and
date of delivery for the International Option Securities (a "Date of Delivery")
shall be determined by the Global Coordinator, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing
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Time, as hereinafter defined. If the option is exercised as to all or any
portion of the International Option Securities, each of the International
Managers, acting severally and not jointly, will purchase that proportion of the
total number of International Option Securities then being purchased which the
number of Initial International Securities set forth in Schedule A opposite the
name of such International Manager bears to the total number of Initial
International Securities, subject in each case to such adjustments as the Global
Coordinator in its discretion shall make to eliminate any sales or purchases of
fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of the
Company at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Global Coordinator and the Company,
at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after
4:30 P.M. (Eastern time) on any given day) business day after the date hereof
(unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall be agreed
upon by the Global Coordinator and the Company (such time and date of payment
and delivery being herein called "Closing Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
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
▇▇▇▇▇▇▇ ▇▇▇▇▇ for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the ▇▇▇▇▇▇▇ ▇▇▇▇▇, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial International Securities and the International
Option Securities, if any, that it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
individually and not as representative of the International Managers, may (but
shall not be obligated to) make payment of the purchase price for the Initial
International Securities or the International Option Securities, if any, to be
purchased by any International Manager whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such International Manager from its obligations
hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the International
Managers may request in writing at least one full business day before the
Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the Initial International Securities and the International
Option Securities, if any, will be made available for examination and packaging
by the International Managers in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be.
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SECTION 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A or Rule 434, as applicable, and will notify the Global
Coordinator immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectuses or any amended
Prospectuses shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission, during the
period when the Prospectuses are required to be delivered under the 1933
Act or the 1934 Act, for any amendment to the Registration Statement or
any amendment or supplement to the Prospectuses or for additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes, and (v) of any change in the rating assigned by
any nationally recognized statistical rating organization to any debt
securities or preferred stock of the Company or any debt securities of
Apache Finance Canada Corporation ("Apache Canada") or the public
announcement by any nationally recognized statistical rating organization
that it has under surveillance or review, with possible negative
implications, its rating of any debt securities or preferred stock of the
Company or any debt securities of Apache Canada. The Company will promptly
effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any
Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectuses, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Global Coordinator with copies of
any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such
document to which the Global Coordinator or counsel for the International
Managers shall object.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the International Managers and counsel for the
International Managers, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein)
and signed copies of all consents and certificates of experts. The copies
of the Registration Statement and each amendment thereto furnished to the
International
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Managers will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted
by the 1933 Act. The Company will furnish to each International Manager,
without charge, during the period when the International Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number
of copies of the International Prospectus (as amended or supplemented) as
such International Manager may reasonably request. The International
Prospectus and any amendments or supplements thereto furnished to the
International Managers will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement, the U.S.
Purchase Agreement and in the Prospectuses. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of counsel for the
International Managers or for the Company, to amend the Registration
Statement or amend or supplement any Prospectus in order that the
Prospectuses will not include any untrue statements of a material fact or
omit to state a 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, at any such time to amend the Registration
Statement or amend or supplement any Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, whether pursuant to
the 1933 Act, the 1934 Act or otherwise, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectuses comply
with such requirements, and the Company will furnish to the International
Managers such number of copies of such amendment or supplement as the
International Managers may reasonably request.
(f) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the International Managers, to qualify the Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions (domestic or foreign) as the Global Coordinator may
designate and to maintain such qualifications in effect for a period of
not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as
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may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Global Coordinator, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise transfer or dispose of any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the
1933 Act with respect to any of the foregoing or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Securities to be sold hereunder or under the U.S. Purchase
Agreement, (B) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Prospectuses, (C)
any shares of Common Stock issued or options to purchase Common Stock
granted pursuant to existing employee benefit plans of the Company
referred to in the Prospectuses, (D) any shares of Common Stock issued
pursuant to any non-employee director stock plan or dividend reinvestment
plan, (E) any shares of Convertible Preferred Stock or Common Stock or
Depositary Shares issued pursuant to the Company's existing dividend
reinvestment program, or (F) any shares of Common Stock issuable in
connection with any asset purchase or other transaction described in the
Prospectuses.
(k) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
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SECTION 4. Payment of Expenses. (a) 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,
including any Rule 462(b) Registration Statement, and all amendments
thereto and the Prospectuses and any amendments or supplements thereto;
(ii) the preparation, filing, reproduction and delivery to the
Underwriters of this Agreement and the U.S. Purchase Agreement; and such
other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities;
(iii) the preparation, printing, issuance and delivery of the
Securities, including any stock or other transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Securities
to the Underwriters and the transfer of the Securities between the U.S.
Underwriters and the International Managers;
(iv) the fees and disbursements of the Company's accountants,
counsel and other advisors;
(v) the qualification of the Securities under state and foreign
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky or Legal Investment Survey;
(vi) the printing and delivery to the Underwriters of copies of the
Registration Statement and any amendments thereto, and of each preliminary
prospectus, the Prospectuses and any amendments or supplements thereto,
and the delivery by the Underwriters of the Prospectuses and any
amendments or supplements thereto;
(vii) all fees and disbursements of any transfer and paying agent;
(viii) all fees and disbursements of the independent petroleum
engineers who have reviewed certain reserve data of the Company included
or incorporated by reference in the Prospectuses;
(ix) the fees and expenses incurred in connection the listing of the
Securities on the New York Stock Exchange;
(x) any out-of-pocket expenses, excluding any legal expenses (other
than as set forth in subparagraph 4(a)(v) above), of the Underwriters
incurred with the approval of the Company; and
(xi) the cost of providing any CUSIP or other identification numbers
for the Securities.
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(b) If this Agreement is terminated by the International Managers in
accordance with the provisions of Section 5, Section 9(a) or Section 10
hereof, the Company shall reimburse the International Managers for all of
their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the International Managers.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel to the
International Managers. A prospectus containing the Rule 430A Information
shall have been filed with the Commission in accordance with Rule 424(b)
(or a post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule
430A) or, if the Company has elected to rely upon Rule 434, a Term Sheet
shall have been filed with the Commission in accordance with Rule 424(b).
(b) Opinions of Counsel for Company. At Closing Time, the
International Managers shall have received the favorable opinion, dated as
of Closing Time, of each of (1) Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.,
counsel for the Company, and (2) either ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, General
Counsel of the Company, or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Attorney and Assistant
Secretary of the Company, each in form and substance satisfactory to
counsel for the International Managers, to the effect set forth in Exhibit
A-1 and Exhibit A-2, respectively.
(c) Opinion of Counsel for International Managers. At Closing Time,
the International Managers shall have received the favorable opinion,
dated as of Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the
International Managers, with respect to the matters set forth in clauses
(i), (ii), (iii) (solely as to preemptive or similar rights arising by
operation of law or under the charter or by-laws of the Company), (iv)
(except with respect to the information set forth under the caption
"Material United States Federal Tax Consequences to Non-United States
Holders of Common Stock"), (v) and (vii) (excluding the documents
incorporated by reference in the Registration Statement and Prospectuses)
and the penultimate paragraph of Exhibit A-1 hereto. In giving such
opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of Texas, the federal law of
the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the International
Managers. Such counsel may also state that, insofar as
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such opinion involves factual matters, they have relied, to the extent
they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in
the condition, financial or otherwise, or in the results of operations,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and the International Managers shall have received a
certificate of the Chief Executive Officer, President or a Vice President
of the Company and of the Treasurer, the Assistant Treasurer, the
principal financial officer or the principal accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties
in Section 1(a) hereof are true and correct with the same force and effect
as though expressly made at and as of Closing Time, (iii) the Company has
performed or complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to Closing Time, and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or have been threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the International Managers shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP a letter dated such date, in form and substance satisfactory
to the International Managers, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectuses.
(f) Bring-down Comfort Letter. At Closing Time, the International
Managers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as
of 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 three
business days prior to Closing Time.
(g) Engineers' Letters. At the time of execution of this Agreement,
the International Managers shall have received a signed letter, dated the
date of this Agreement, in form and substance satisfactory to the
International Managers, from ▇▇▇▇▇ ▇▇▇▇▇ Company Petroleum Engineers.
(h) Approval of Listing. At Closing Time, the Securities shall have
been duly listed on the New York Stock Exchange, subject only to official
notice of issuance.
(i) Lock-up Agreements. At the date of this Agreement, the
International Managers shall have received an agreement substantially in
the form of Exhibit B hereto signed by each of the persons listed on
Schedule C hereto.
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(j) Purchase of Initial U.S. Securities. Contemporaneously with the
purchase by the International Managers of the Initial International
Securities under this Agreement, the U.S. Underwriters shall have
purchased the Initial U.S. Securities under the U.S. Purchase Agreement.
(k) Conditions to Purchase of International Option Securities. In
the event that the International Managers exercise their option provided
in Section 2(b) hereof to purchase all or any portion of the International
Option Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by the
Company or any subsidiary of the Company hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery,
the International Managers shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the Chief Executive Officer, President or a Vice
President of the Company and of the Treasurer, Assistant Treasurer,
principal financial officer or principal accounting officer of the
Company confirming that the certificate delivered at the Closing
Time pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery.
(ii) Opinions of Counsel for Company. The favorable opinion of
Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Company,
together with the favorable opinion of either ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇,
General Counsel for the Company, or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Attorney and
Assistant Secretary of the Company, each in form and substance
satisfactory to counsel for the International Managers, dated such
Date of Delivery, relating to the International Option Securities to
be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for International Managers. The favorable
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the International
Managers, dated such Date of Delivery, relating to the International
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(c)
hereof.
(iv) Bring-down Comfort Letter. A letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
in form and substance satisfactory to the International Managers and
dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the International Managers
pursuant to Section 5(f) hereof, except that the "specified date" in
the letter furnished pursuant to this paragraph shall be a date not
more than three days prior to such Date of Delivery.
(l) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the International Managers shall have been furnished
with such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of
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any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the
International Managers and counsel for the International Managers.
(m) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of International Option Securities on a Date of Delivery which is
after the Closing Time, the obligations of the several International
Managers to purchase the relevant Option Securities, may be terminated by
the International Managers by notice to the Company at any time at or
prior to Closing Time or such Date of Delivery, as the case may be, and
such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of International Managers. The Company agrees to
indemnify and hold harmless each International Manager and each person, if any,
who controls any International Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectuses (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
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statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the International
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each International
Manager severally agrees 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 or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary International
prospectus or the International Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such International Manager expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the International Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified
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party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the International Managers on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
International Managers on the other hand in connection with the statements or
omissions that resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
International Managers on the other hand in connection with the offering of the
International Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
International Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus, or, if Rule 434 is used, the corresponding location on
the Term Sheet, bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the Company on the one hand and the International
Managers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the International Managers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the International Managers agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the International Managers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
21
22
Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the International Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such International Manager has otherwise been required to pay by
reason of any 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 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The International Managers' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any International Manager or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the International Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The International Managers may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the International
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak or escalation of
hostilities or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
22
23
conditions, in each case the effect of which is such as to make it, in the
judgment of the International Managers, impracticable to market the Securities
or to enforce contracts for the sale of the Securities, or (iii) if trading in
any securities of the Company has been suspended or materially limited by the
Commission or a national securities exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
either of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or if a banking moratorium shall have been declared by Federal, New
York or Texas authorities, or (iv) a downgrading shall have occurred in the
rating accorded to any debt securities or preferred stock of the Company or the
debt securities of Apache Canada by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the 1933 Act or such organization shall have publicly
announced that it has under survellience or review, with possible negative
implications, its rating of any debt securities or preferred stock of the
Company or any debt securities of Apache Canada, or (v) there shall have come to
the attention of the International Managers any facts that would cause them to
reasonably believe that the International Prospectus, at the time it was
required to be delivered to a purchaser of the Securities, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing at
the time of such delivery, not misleading.
(b) Liabilities. 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 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the International Managers. If one
or more of the International Managers shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the non-defaulting
International Managers shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting International Managers, or
any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the International Managers shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, each of
the non-defaulting International Managers shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of International Securities to be purchased on such date, this Agreement
or, with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the International Managers to purchase and of the
Company to sell the Option Securities to
23
24
be purchased and sold on such Date of Delivery shall terminate without
liability on the part of any non-defaulting International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the International
Managers or the Company shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
International Prospectus or in any other documents or arrangements. As used
herein, the term "International Manager" includes any person substituted for an
International Manager under this Section 10.
SECTION 11. 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
International Managers shall be directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇; and notices
to the Company shall be directed to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, attention of Vice President and Treasurer, with a copy to
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the International Managers 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
International Managers and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the International Managers and the
Company 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 Securities from
any International Manager shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
SECTION 14. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
24
25
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 International Managers and the Company in accordance with its terms.
Very truly yours,
APACHE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------
Authorized Signatory
25
26
SCHEDULE A
Number of
Initial
International
Name of International Manager Securities
----------------------------- ----------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International................................. 480,000
▇▇▇▇▇▇▇ Sachs International................................. 480,000
Credit Suisse First Boston (Europe) Limited................. 240,000
Salomon Brothers International Limited...................... 400,000
---------
Total....................................................... 1,600,000
=========
Sch A-1
27
SCHEDULE B
APACHE CORPORATION
1,600,000 Shares of Common Stock
(Par Value $1.25 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $49.00.
2. The purchase price per share for the International Securities to be
paid by the several International Managers shall be $47.16, being an amount
equal to the initial public offering price set forth above less $1.84 per share;
provided that the purchase price per share for any International Option
Securities purchased upon the exercise of the over-allotment option described in
Section 2(b) shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial International
Securities but not payable on the International Option Securities.
Sch B-1
28
SCHEDULE C
List of persons
subject to lock-up
▇▇▇▇▇▇▇ ▇▇▇▇▇
G. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
H. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
A.D. ▇▇▇▇▇▇▇, Jr.
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
F.H. "Mick" ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇. ▇▇▇▇▇▇ Fields
Sch C-1
29
EXHIBIT A-1
FORM OF OPINION OF MAYOR,
DAY, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.,
COUNSEL TO THE COMPANY,
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(1)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The International Purchase Agreement and the U.S. Purchase Agreement
have been duly authorized, executed and delivered by the Company.
(iii) The Securities to be purchased by the International Managers and the
U.S. Underwriters from the Company have been duly and validly authorized for
issuance, offer and sale to the International Managers pursuant to the
International Purchase Agreement and the U.S. Underwriters pursuant to the U.S.
Purchase Agreement, respectively, and, when issued and delivered by the Company
pursuant to the International Purchase Agreement and the U.S. Purchase
Agreement, respectively, against payment of the consideration therefor set forth
in the International Purchase Agreement and the U.S. Purchase Agreement,
respectively, will be validly issued, fully paid and non-assessable. The
issuance of the Securities will not be subject to any preemptive or similar
rights. The Rights have been duly and validly authorized for issuance by the
Company in accordance with the Rights Agreement, dated as of January 31, 1996,
between the Company and Norwest Bank Minnesota, N.A.
(iv) The Securities conform in all material respects to the statements
relating thereto in the Prospectuses; and the information in the Prospectuses
under the captions "Description of Capital Stock -- Common Stock", "Description
of Capital Stock -- Stockholder Rights Plan" and "Material United States Federal
Tax Consequences To Non-United States Holders of Common Stock", to the extent
that it constitutes matters of law, summaries of legal matters, legal
conclusions or summaries of certain provisions of instruments specifically
referred to therein, has been reviewed by such counsel and is correct in all
material respects.
(v) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective by the Commission under the 1933 Act and,
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission.
(vi) The execution and delivery of the International Purchase Agreement
and the U.S. Purchase Agreement, the issuance of the Securities, the incurrence
of the obligations set forth in the International Purchase Agreement and the
U.S. Purchase
A-1-1
30
Agreement and the consummation of the transactions contemplated in the
International Purchase Agreement, the U.S. Purchase Agreement and in the
Registration Statement do not and will not conflict with or constitute a breach
of, or default under, the Company's certificate of incorporation or by-laws.
(vii) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectuses, and each amendment or supplement to the
Registration Statement and the Prospectuses, as of their respective effective or
issue dates (except for financial statements and supporting schedules and
engineering reports and other financial or engineering data, included therein or
omitted therefrom, as to which such counsel need express no opinion) appeared on
their face to be appropriately responsive to the requirements of the 1933 Act
and the 1933 Act Regulations.
In giving their opinion, Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P. shall
additionally state that in the course of the preparation of the Registration
Statement and the Prospectuses such counsel has considered the information set
forth therein in light of the matters required to be set forth therein, and has
participated in conferences with officers and representatives of the Company,
including its independent public accountants, during the course of which the
contents of the Registration Statement and the Prospectuses and related matters
were discussed. Such counsel may state that they did not independently check the
accuracy or completeness of, or otherwise verify, and accordingly need not pass
upon, and accordingly need not assume responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectuses, and such counsel may, in good faith, rely as to
materiality, to the extent deemed appropriate, upon the judgment of officers and
representatives of the Company. Such counsel shall additionally state that,
however, as a result of such consideration and participation, nothing has come
to such counsel's attention that causes such counsel to believe that the
Registration Statement, at the time it became effective (or, if an amendment to
the Registration Statement or an Annual Report on Form 10-K has been filed by
the Company with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time such amendment became effective or at
the time of the most recent such filing, as the case may be), including the Rule
430A Information and Rule 434 Information, if applicable, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading or that the Prospectuses or any amendment or supplement thereto, at
the time the Prospectuses were issued, at the time any such amendment or
supplement was issued, or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the financial
statements and schedules and engineering reports and other financial or
engineering data contained or incorporated by reference in the Registration
Statement (including the Prospectuses)).
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent they deem proper, on the representations of officers of the Company
contained in
A-1-2
31
any certificate delivered to such counsel and certificates of public officials,
which certificates shall be attached to or delivered with such opinion. Such
opinion may be limited to the General Corporation Law of the State of Delaware,
the laws of the State of Texas and the laws of the United States of America.
A-1-3
32
EXHIBIT A-2
FORM OF OPINION OF EITHER ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇,
GENERAL COUNSEL OF THE COMPANY, OR
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ATTORNEY AND ASSISTANT
SECRETARY OF THE COMPANY, TO BE
DELIVERED PURSUANT TO SECTION 5(b)(2)
(i) The Company has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the
International Purchase Agreement and the U.S. Purchase Agreement.
(ii) To the best knowledge and information of such counsel, the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in the State of Texas and in each other jurisdiction in which such
qualification is required, except where the failure so to qualify and be in good
standing would not have a material adverse effect on the condition, financial or
otherwise, or the results of operations, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
(iii) Each Significant Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectuses and, to the best of such counsel's knowledge and information, is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, except
where the failure so to qualify and be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the results
of operations, business affairs or business prospects of the Company and its
subsidiaries considered as on enterprise; and all of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable, and is owned by the Company,
directly or indirectly, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity (except as described in the Prospectuses).
(iv) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectuses (except for issuances, if any, described in
the Prospectuses, pursuant to the International Purchase Agreement and the U.S.
Purchase Agreement or pursuant to reservations, agreements or employee benefit
plans referred to in the Prospectuses or pursuant to the exercise of convertible
securities or options referred to in the Prospectuses); the shares of issued and
outstanding capital stock of the Company set forth therein, have been duly
authorized and validly issued and are fully paid and non-assessable; and the
Securities conform to all statements relating thereto contained in
A-2-1
33
the Prospectuses and such statements conform to the provisions of the
instruments defining the same.
(v) The Securities to be purchased by the International Managers and the
U.S. Underwriters from the Company have been duly and validly authorized for
issuance, offer and sale to the International Managers pursuant to the
International Purchase Agreement and the U.S. Underwriters pursuant to the U.S.
Purchase Agreement, respectively, and, when issued and delivered by the Company
pursuant to the International Purchase Agreement and the U.S. Purchase
Agreement, respectively, against payment of the consideration therefor set forth
in the International Purchase Agreement and the U.S. Purchase Agreement,
respectively, will be validly issued, fully paid and non-assessable. The
issuance of the Securities will not be subject to any preemptive or similar
rights. The Rights have been duly and validly authorized for issuance by the
Company in accordance with the Rights Agreement, dated as of January 31, 1996,
between the Company and Norwest Bank Minnesota, N.A.
(vi) Each document filed pursuant to the 1934 Act and incorporated by
reference in the Prospectuses (except for financial statements and supporting
schedules and engineering reports and other financial or engineering data as to
which no opinion need be rendered) appeared on its face to be appropriately
responsive when so filed to the requirements of the 1934 Act and the 1934 Act
Regulations.
(vii) Neither the Company nor any of its subsidiaries is required to be
registered under the 1940 Act.
(viii) No consent, approval, authorization, order, decree, registration or
qualification of or with any court or governmental authority or agency is
required that has not been obtained in connection with the consummation by the
Company of the transactions contemplated by the International Purchase Agreement
and the U.S. Purchase Agreement, except such as have been obtained or rendered,
as the case may be, or as may be required under the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the 1934 Act Regulations or state securities laws.
(ix) The execution, delivery and performance of the International Purchase
Agreement and the U.S. Purchase Agreement and the consummation of the
transactions contemplated therein have been duly authorized by all necessary
corporate action of the Company and, to the best knowledge and information of
such counsel, will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound or to which any of the
property or assets of the Company or any such subsidiary is subject, nor will
such action result in any violation of the provisions of the charter or by-laws
of the Company or any applicable law, administrative regulation or, to the best
knowledge and information of such counsel, administrative or court order or
decree.
A-2-2
34
(x) Neither the Company nor any of its Significant Subsidiaries is in
violation of its charter or by-laws.
(xi) To the best knowledge and information of such counsel, neither the
Company nor any of its subsidiaries is in violation of any law, ordinance,
governmental rule or regulation or court decree to which it may be subject or
has failed to obtain any license, permit, franchise or other governmental
authorization necessary to the ownership of its property or to the conduct of
its business, which violation or failure would materially adversely affect the
condition, financial or otherwise, or the results of operations, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise; and, to the best knowledge and information of such counsel, the
Company and its subsidiaries own or possess or have obtained all governmental
licenses, permits, consents, orders, approvals and other authorizations
necessary to lease or own their respective properties and to carry on their
respective businesses as presently conducted, except where the failure to obtain
such authorizations would not have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(xii) To the best of such counsel's knowledge and information, there is no
action, suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, or threatened against or affecting, the
Company or any of its subsidiaries, that would be reasonably expected to result
in any material adverse change in the condition, financial or otherwise, or in
the results of operations, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, or would materially and
adversely affect the properties or assets thereof or would materially and
adversely affect the consummation of the International Purchase Agreement and
the U.S. Purchase Agreement or any transaction contemplated thereby.
(xiii)To the best of such counsel's knowledge and information, there are
no contracts or other documents required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto, the descriptions thereof or references thereto are correct in
all material respects, and, to the best of such counsel's knowledge and
information, no default exists in the due performance or observance of any
material obligation, agreement, covenant or conditions contained in any
contract, or other documents so described, referred to, filed or incorporated by
reference where the consequences of such default would have a material adverse
effect on the condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
In giving his opinion, either ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
shall additionally state that in the course of the preparation of the
Registration Statement and the Prospectuses such counsel has considered the
information set forth therein in light of the matters required to be set forth
therein, and has participated in conferences with officers and representatives
of the Company, including its independent public
A-2-3
35
accountants, during the course of which the contents of the Registration
Statement and the Prospectuses and related matters were discussed. Such counsel
may state that he did not independently check the accuracy or completeness of,
or otherwise verify, and accordingly need not pass upon, and accordingly need
not assume responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectuses, and such
counsel may, in good faith, rely as to materiality, to the extent deemed
appropriate, upon the judgment of officers and representatives of the Company.
Such counsel shall additionally state that, however, as a result of such
consideration and participation, nothing has come to such counsel's attention
that causes such counsel to believe that the Registration Statement, at the time
it became effective (or, if an amendment to the Registration Statement or an
Annual Report on Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement, then at the time
such amendment became effective or at the time of the most recent such filing,
as the case may be), including the Rule 430A Information and Rule 434
Information, if applicable, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading or that the Prospectuses or
any amendment or supplement thereto, at the time the Prospectuses were issued,
at the time any such amendment or supplement was issued, or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to the
financial statements and schedules and engineering reports and other financial
or engineering data contained or incorporated by reference in the Registration
Statement (including the Prospectuses)).
In rendering such opinion, either ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ or ▇▇. ▇▇▇▇ may rely (i)
as to matters of fact upon the representations of officers of the Company
contained in any certificate delivered to such counsel and certificates of
public officials, (ii) as to matters related to the capital stock of the Company
and each of the Company's Significant Subsidiaries issued prior to March 30,
1993, the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, former Senior Vice President and
General Counsel of the Company, dated ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) as to matters
related to Apache Quarun Corporation LDC, Apache Quarun Exploration Company LDC
and Apache Khalda Corporation LDC, the opinion of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, (iv) as to
matters regarding Apache Energy Limited, the opinion of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, and
(v) as to matters related to Apache Canada Ltd., the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Verchere, which certificates and opinions shall be attached to or delivered with
such opinion. Such opinion shall be limited to the General Corporation Law of
the State of Delaware, the laws of the State of Texas and the laws of the United
States of America.
A-2-4
36
EXHIBIT B
[FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR
OTHER STOCKHOLDERS PURSUANT TO SECTION 5(i)]
July __, 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Re: Proposed Public Offering by Apache Corporation
Dear Sirs:
The undersigned, a stockholder and an officer and/or director of Apache
Corporation, a Delaware corporation (the "Company"), understands that ▇▇▇▇▇▇▇
▇▇▇▇▇ International ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, Credit
Suisse First Boston (Europe) Limited and Salomon Brothers International Limited
propose to enter into an International Purchase Agreement (the "International
Purchase Agreement") with the Company providing for the public offering of
shares of the Company's common stock, par value $1.25 per share (the "Common
Stock"), and related rights to purchase Common Stock. In recognition of the
benefit that such an offering will confer upon the undersigned as a stockholder
and an officer and/or director of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each international manager to be named in the
International Purchase Agreement that, during a period of 90 days from the date
of the International Purchase Agreement, the undersigned will not, without the
prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any shares of the Common Stock
or any securities convertible into or exchangeable or exercisable for Common
Stock, whether now owned or hereafter acquired by the undersigned or with
respect to which the undersigned has or hereafter acquires the power of
disposition, or file any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the
37
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise.
Very truly yours,
Signature: ___________________________
Print Name: ___________________________