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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): August 17, 1999
FOREST OIL CORPORATION
(Exact name of registrant as specified in its charter)
NEW YORK 0-13515 25-048490
(State of Incorporation) (Commission File Number) (I.R.S. Employer
Identification Number)
1600 BROADWAY,
SUITE 2200
DENVER, COLORADO 80202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (303) 812-1400
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) The following exhibits are filed herewith:
<TABLE>
<CAPTION>
Exhibit Description of Exhibit
- ------- ----------------------
<S> <C>
1 Underwriting Agreement, dated August 17, 1999.
5 Opinion of Vinson & Elkins L.L.P.
23 Consent of Vinson & Elkins L.L.P. (included in Exhibit 5).
</TABLE>
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
Dated: August 18, 1999
FOREST OIL CORPORATION
By: /s/ Joan C. Sonnen
--------------------------
Name: Joan C. Sonnen
Title: Vice President - Controller
and Corporate Secretary
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description of Exhibit
- ------- ----------------------
<S> <C>
1 Underwriting Agreement, dated August 17, 1999.
5 Opinion of Vinson & Elkins L.L.P.
23 Consent of Vinson & Elkins L.L.P. (included in Exhibit 5).
</TABLE>
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<PAGE>
Exhibit 1
CONFORMED COPY
FOREST OIL CORPORATION
9,000,000 Shares
Common Stock
($.10 par value)
UNDERWRITING AGREEMENT
New York, New York
August 17, 1999
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Forest Oil Corporation, a corporation organized under the laws
of the State of New York (the "Company"), proposes to sell to the several
underwriters named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, 9,000,000 shares of Common
Stock, $.10 par value ("Common Stock"), of the Company (said shares to be issued
and sold by the Company being hereinafter called the "Underwritten Securities").
The Company also proposes to grant to the Underwriters an option to purchase up
to 1,350,000 additional shares of Common Stock to cover over-allotments (the
"Option Securities"; the Option Securities, together with the Underwritten
Securities, being hereinafter called the "Securities"). To the extent there are
no additional Underwriters listed on Schedule II other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. The use of the neuter in this Agreement shall include the
feminine or the masculine wherever appropriate. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms "amend", "amendment" or "supplement" with
<PAGE>
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus (together, the
"Prospectus"), as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof.
1. REPRESENTATIONS AND WARRANTIES.
(i) The Company represents and warrants to, and agrees with,
each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission a
registration statement (file number 333-16125) on Form S-3, including a
related Basic Prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including a Preliminary Final Prospectus, each
of which has previously been furnished to you. The Company will next
file with the Commission one of the following: (1) after the Effective
Date of such registration statement, a final prospectus supplement
relating to the Securities in accordance with Rules 430A and 424(b),
(2) prior to the Effective Date of such registration statement, an
amendment to such registration statement (including the form of final
prospectus supplement) or (3) a final prospectus in accordance with
Rules 415 and 424(b). In the case of clause (1), the Company has
included in such registration statement, as amended at the Effective
Date, all information (other than Rule 430A Information) required by
the Act and the rules thereunder to be included in such registration
statement and the Final Prospectus. As filed, such final prospectus
supplement or such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Representatives
shall agree to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made
therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein)
and on any date on which Option Securities are
2
<PAGE>
purchased, if such date is not the Closing Date (a "settlement date"),
the Final Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder; on the Effective Date
and at the Execution Time, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; and, on the Effective
Date, the Final Prospectus, if not filed pursuant to Rule 424(b), will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date and any settlement date, the Final Prospectus (together
with any supplement thereto) will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto).
(c) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), without taking account of any exemption
arising out of the number of holders of the securities thereof, and
after giving effect to the offer and sale of the Securities and the
application of the net proceeds of such offer and sale as described in
the Final Prospectus, will not be an "investment company" as defined in
the Investment Company Act.
(d) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(e) Each of the Company and its Subsidiaries (as defined
below) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized with full corporate power and
authority to own its properties and conduct its business in a manner
consistent with any description thereof in the Final Prospectus, and is
duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified and in good
standing does not have a material adverse effect on the condition
(financial or otherwise), business, properties, results of operations
or prospects of the Company and its Subsidiaries taken as a whole,
3
<PAGE>
or materially and adversely affect the ability of the Company to
perform its obligations under this Agreement or to consummate the
transactions contemplated hereby (a "Material Adverse Effect"). The
term "Subsidiary" means each person of which a majority of the voting
equity securities or other interests is owned, directly or indirectly,
by the Company.
(f) All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in the
Final Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company, either directly or through
wholly owned subsidiaries, free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances
and, except as set forth in the Final Prospectus, no options, warrants
or other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company
are outstanding.
(g) Neither the Company nor any Subsidiary thereof is in
violation of its articles or by-laws or in default in the performance
of its obligations under any indenture or other agreement or instrument
to which it is a party or by which it is bound or to which it or any of
its properties is subject which default or defaults individually or in
the aggregate would have a Material Adverse Effect.
(h) (i) The issuance and sale of the Securities to the
Representatives by the Company pursuant to this Agreement, (ii) the
execution, delivery and performance of this Agreement by the Company,
(iii) compliance by the Company with all the provisions hereof and (iv)
consummation of the transactions contemplated hereby by the Company do
not require any consent, permission, authorization, approval or order
of, or filing or registration with or notice to, any court, regulatory
body, administrative agency or other governmental body (except such as
may be required under the Act or under blue sky laws of the various
states of the United States and under the Canadian Securities Laws and
those consents, permissions, authorizations, approvals, orders,
filings, registrations or notices which have been obtained or made, as
the case may be) and do not and will not conflict with, or constitute a
breach or a violation of any of the terms or provisions of, or a
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 under, (w) its articles, by-laws or other governing
documents, (x) any applicable statute, rule or regulation or any order
of any governmental agency or body or any court having jurisdiction
over the Company and its Subsidiaries or any of their respective
properties, (y) any agreement or instrument relating to borrowed money
to which the Company or any of
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<PAGE>
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of their respective properties is
subject, or (z) any other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound or to which any of their respective
properties is subject.
(i) (i) The Company has full corporate power and authority to
enter into this Agreement, and to issue the Securities, as applicable,
and to perform the transactions contemplated hereby, and the execution
and delivery of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all necessary
corporate action on the part of the Company; and (ii) this Agreement
has been duly executed and delivered by the Company and constitutes a
valid and binding obligation of the Company, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights
generally and to general principles of equity.
(j) The Securities have been duly authorized for issuance and
sale by the Company to the Representatives and will, when issued,
executed and delivered and paid for in accordance with the terms of
this Agreement, be validly issued, fully paid and nonassessable.
(k) Except as disclosed in the Final Prospectus, there are no
legal or governmental actions, suits or proceedings pending or, to the
best of the Company's knowledge, threatened to which the Company or any
of its Subsidiaries is or is threatened to be made a party or of which
property owned or leased by the Company or any of its Subsidiaries is
or is threatened to be made the subject, which actions, suits or
proceedings could, individually or in the aggregate, have a Material
Adverse Effect.
(l) The Company and its Subsidiaries are conducting business
in compliance with all applicable laws, rules and regulations of the
jurisdictions in which they are conducting business, including, without
limitation, the regulations of the United States Mineral Management
Service and all applicable Environmental Laws (as defined below),
except where the failure to be so in compliance would not have a
Material Adverse Effect. As used herein, "Environmental Laws" means any
Canadian or U.S. Federal, state, provincial or local law, regulation,
permit, rule or order of any governmental authority, administrative
body or court applicable to the Company's or any of its Subsidiaries'
business operations or the ownership or possession of any of their
properties or assets relating to environmental matters.
5
<PAGE>
(m) There are no defects in title to, or encumbrances upon the
leasehold interests in, the oil and gas producing properties of the
Company and its Subsidiaries or the assets or facilities used by the
Company and its Subsidiaries in the production and marketing of oil and
gas which, individually or in the aggregate, have a Material Adverse
Effect, except any such defects that are customary in the oil and gas
industry and are in the ordinary course of business of the Company.
(n) The consolidated financial statements (including all notes
thereto) included in the Final Prospectus and the Registration
Statement present fairly the financial position of the Company and its
consolidated Subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis. The selected
financial data and all operating data included in the Final Prospectus
and the Registration Statement present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited consolidated financial statements included in the Final
Prospectus and the Registration Statement. The oil and gas reserve data
included in the Final Prospectus and the Registration Statement have
been prepared in conformity with industry standards and accurately
reflect the oil and gas reserves of the Company and its Subsidiaries as
of the dates indicated therein. Since the date of the latest audited
consolidated financial statements included in the Final Prospectus and
the Registration Statement there has been no change, development or
event not disclosed in the Final Prospectus (exclusive of any
supplement thereto) which could reasonably be expected to have a
Material Adverse Effect. The pro forma financial statements included or
incorporated by reference in the Final Prospectus and the Registration
Statement include assumptions that provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions and events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma adjustments reflect the proper application of those adjustments
to the historical financial statement amounts in the pro forma
financial statements included in the Final Prospectus and the
Registration Statement. The pro forma financial statements included in
the Final Prospectus and the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of
Regulation S-X under the Act and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those
statements.
6
<PAGE>
(o) The Company has reviewed its operations and that of its
Subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to
which the business or operations of the Company or any of its
Subsidiaries will be affected by the Year 2000 Problem. As a result of
such review, the Company has no reason to believe, and does not
believe, that the Year 2000 Problem will have a Material Adverse Effect
or result in any material loss or interference with the Company's
business or operations. The "Year 2000 Problem" as used herein means
any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
2. PURCHASE AND SALE. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$14.6875 per share, the amount of the Underwritten Securities set forth opposite
such Underwriter's name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not jointly, up
to 1,350,000 Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time (but not more than once) on or before the 30th day after the date of
the Prospectus upon written or telegraphic notice by the Representatives to the
Company setting forth the number of shares of the Option Securities as to which
the several Underwriters are exercising the option and the settlement date. The
number of shares of the Option Securities to be purchased by each Underwriter
shall be the same percentage of the total number of shares of the Option
Securities to be purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten Securities, subject to such adjustments as you in
your absolute discretion shall make to eliminate any fractional shares.
7
<PAGE>
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company by wire transfer payable in same-day funds
to an account specified by the Company. Delivery of the Underwritten Securities
and the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Representatives, at
388 Greenwich Street, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. AGREEMENTS.
(i) The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration
8
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Statement unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Final Prospectus is otherwise
required under Rule 424(b), the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company
will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any
supplement to the Final Prospectus or for any additional information,
(5) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably
request.
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(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its Subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
Andrews & Kurth L.L.P., counsel for the Underwriters, without charge,
signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
Salomon Smith Barney Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of
the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other shares of Common
Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock; or publicly announce an
intention to effect any such transaction, until the Business Day set
forth on Schedule I hereto, PROVIDED, HOWEVER, that the Company may
issue and sell Common Stock pursuant to any employee stock plan, stock
ownership plan or dividend reinvestment plan of the Company in effect
at the Execution
10
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Time and the Company may issue Common Stock issuable upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time.
(g) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties of the Company contained herein as of the
Execution Time, the Closing Date and any settlement date pursuant to Section 3
hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have requested and caused Vinson &
Elkins, L.L.P., counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with full corporate
power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as
described in the Final Prospectus;
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(ii) the Company has full corporate power and
authority to execute and deliver this Agreement; the
Securities in the form contemplated herein and in the Final
Prospectus, have been duly authorized for issuance and sale to
the Underwriters pursuant to this Agreement and, when issued
and delivered by the Company in accordance with the provisions
of this Agreement and paid for by the Representatives pursuant
to this Agreement, will be validly issued, fully paid and
nonassessable and the statements set forth under the heading
"Description of Capital Stock" in the Final Prospectus,
insofar as such statements purport to summarize certain
provisions of the Securities, provide a fair summary of such
provisions;
(iii) the Company's authorized capital stock is as
set forth in the Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof
contained in the Prospectus; the issued and outstanding shares
of Common Stock have been duly authorized and validly issued
and are fully paid and nonassessable; the Securities are duly
listed and admitted and authorized for trading, subject to
official notice of issuance on the New York Stock Exchange;
the certificates for the Securities are in valid and
sufficient form; the holders of outstanding shares of capital
stock of the Company are not entitled to preemptive or other
rights to subscribe for the Securities; and, except as set
forth in the Prospectus, no options, warrants or other rights
to purchase, agreements or other obligations to issue or
rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership
interests in the Company are outstanding;
(iv) the information included or incorporated by
reference in the Final Prospectus under the headings "Risk
Factors--Our Oil and Gas Operations are Subject to Various
U.S. Federal, State and Local and Canadian Federal and
Provincial Governmental Regulations that Materially Affect our
Operations," "Business--Regulation--United States,"
"Business--Regulation--Oil Spill Financial Responsibility
Requirements--United States,"
"Business--Regulation--Environmental Matters" and
"Management's Discussion and Analysis of Financial Condition
and Results of Operations--Liquidity and Capital
Resources--Bank Credit Facilities" and "Description of Capital
Stock" to the extent that it constitutes matters of law,
summaries of legal matters, the Company's charter and by-laws
or legal proceedings or legal conclusions, has been reviewed
by us and fairly summarizes such matters in all material
respects;
12
<PAGE>
(v) no consent, approval, authorization or order of,
or filing or registration with, any New York or U.S. Federal
court or governmental agency or body is required for the
execution, delivery and performance by the Company of this
Agreement and issuance of the Securities pursuant to this
Agreement, or for the consummation of the transactions
contemplated herein, except such as have been obtained under
the Act and such as may be required under the blue sky or
securities laws of any U.S. jurisdiction in connection with
the purchase and sale of the Securities by the Underwriters
and such other approvals (specified in such opinion) as have
been obtained;
(vi) neither the issue and sale of the Securities by
the Company, the execution and delivery of this Agreement by
the Company nor the consummation of the transactions herein
contemplated in accordance with the terms hereof nor the
fulfillment of the terms hereof will result in a breach or
violation of or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or its U.S.
Subsidiaries pursuant to, or constitute a default under (i)
any law of the United States or the State of New York
(provided that such counsel shall not be required to opine as
to the prospective compliance by the Company with applicable
securities laws), (ii) the charter or by-laws of the Company
or any U.S. Subsidiary, (iii) the terms of any indenture or
other agreement or instrument known to such counsel and to
which the Company or any U.S. Subsidiary is a party or by
which it is bound or (iv) any judgment, order or decree known
to such counsel to be applicable to the Company or any of its
U.S. Subsidiaries of any United States or New York court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
U.S. Subsidiaries, except in the case of clause (iii) for such
breaches or defaults or liens, charges or encumbrances that
would not have a Material Adverse Effect;
(vii) the Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the net proceeds therefrom as described in the Final
Prospectus, will not be an "investment company" within the
meaning of the Investment Company Act and the rules and
regulations of the Commission thereunder, without taking
account of any exemption arising out of the number of holders
of the securities thereof;
(viii) to the best of such counsel's knowledge after
due inquiry, there is no pending or threatened action or suit
or judicial, arbitral or other administrative proceeding
before any United States Federal, state or local
court, regulatory
13
<PAGE>
body, administrative agency, governmental body or arbitrator
to which the Company or any of its Subsidiaries, or its or
their property, is the subject, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required;
(ix) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the Act, no proceedings for that purpose
have been instituted or threatened by the Commission, and the
Registration Statement and the Final Prospectus and the
documents incorporated by reference therein (other than the
financial statements and supporting schedules, oil and gas
reserve information and other financial and statistical
information contained therein or omitted therefrom, as to
which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules
thereunder;
(x) to the best of such counsel's knowledge after due
inquiry, except as disclosed in the Final Prospectus, no
holders of Securities of the Company have rights to the
registration of such securities under the Registration
Statement; and
(xi) this Agreement has been duly authorized,
executed and delivered by the Company.
Such counsel shall also state that they are not
passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Final
Prospectus (except to the extent set forth in subparagraphs (i) and
(ii) above), and have not independently verified the accuracy,
completeness or fairness of such statements (except as aforesaid).
Without limiting the foregoing, such counsel shall assume no
responsibility for and have not independently verified the accuracy,
completeness or fairness of the financial statements, the oil and gas
reserve reports and other financial and reserve data included in the
Final Prospectus and have not examined the financial, statistical or
reserve records from which such statements and data are derived. Such
counsel shall note that, although certain portions of the Final
Prospectus
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<PAGE>
have been included therein on the authority of "experts" within the
meaning of the Securities Act, such counsel are not experts with
respect to any portion of the Final Prospectus. Such counsel shall
state that they have participated in conferences with officers and
other representatives of the Company, representatives of the
independent accountants of the Company, and with your representatives
and counsel, at which the contents of the Final Prospectus and related
matters were discussed. Such counsel shall state that they have also
reviewed certain corporate documents furnished to them by the Company
and, based on such participation and review (relying as to materiality
to a certain extent upon the officers and the other representatives of
the Company), and subject to the limitations described above, no
information has come to their attention that caused them to believe
that the Final Prospectus, at the Execution Time or at the Closing
Date, 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.
In rendering such opinion, such counsel may rely (A)
as to matters involving the application of laws of any jurisdiction
other than the State of New York or the United States, to the extent
they deem proper and specified in such opinion, upon the opinion of
other counsel of good standing whom they believe to be reliable and (B)
as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials.
All references in this paragraph (b) to the Final
Prospectus shall be deemed to include any supplements thereto on or
prior to the Closing Date.
(c) The Company shall have furnished to the Representatives
the opinion of Richard W. Schelin, counsel for the Company, dated the
Closing Date and addressed to the Representatives, to the effect that:
(i) the Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material
business except where the failure to so qualify or to be in
good standing would not result in a Material Adverse Effect;
(ii) each Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation,
with full corporate power and authority to own
or lease, as the case may be, and to operate its properties
and conduct its business as described
15
<PAGE>
in the Final Prospectus, and is duly qualified to do business
as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts
material business, except where the failure to qualify or to
be in good standing would not result in a Material Adverse
Effect;
(iii) all the outstanding shares of capital stock of
the Company and each Subsidiary of the Company have been duly
authorized and validly issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of the
Subsidiaries of the Company are owned by the Company either
directly or through wholly owned subsidiaries free and clear
of any perfected security interest and, to the knowledge of
such counsel after due inquiry, any other security interests,
claims, liens or encumbrances; and
(iv) except as disclosed in the Final Prospectus,
there is no pending or, to the knowledge of such counsel,
threatened action or suit or judicial, arbitral or other
administrative proceeding before any court, regulatory body,
administrative agency, governmental body or arbitrator
involving the Company or any of its Subsidiaries, or its or
their property, which is not adequately disclosed in the Final
Prospectus and which, if adversely determined, could have a
Material Adverse Effect.
In rendering such opinion, such counsel may rely (A)
as to matters involving the application of laws of any jurisdiction
other than the State of New York or the United States, to the extent
such counsel deems proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be
reliable and (B) as to matters of fact, to the extent they deem proper,
on certificates of responsible officers of the Company and public
officials.
All references in this paragraph (c) to the Final
Prospectus shall be deemed to include any supplements thereto on or
prior to the Closing Date.
(d) The Representatives shall have received from Andrews &
Kurth L.L.P., counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Registration
Statement, the Final Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably
require, and the
16
<PAGE>
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and Chief Executive Officer and by the Vice President and
Chief Financial Officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG LLP to
have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters (which may refer to letters previously delivered
to one or more of the Representatives), dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder and that they have performed a review of the
unaudited interim financial information of the Company for the
six-month period ended June 30, 1999, and as at June 30, 1999, in
accordance with Statement on Auditing Standards No. 71, and stating in
effect that:
17
<PAGE>
(i) in their opinion the audited financial statements
and financial statement schedules and pro forma financial
statements included or incorporated by reference in the
Registration Statement and the Final Prospectus and reported
on by them comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related rules and regulations adopted by the
Commission;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its Subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards
No. 71, of the unaudited interim financial information for the
six-month period ended June 30, 1999, and as at June 30, 1999,
incorporated by reference in the Registration Statement and
the Final Prospectus; carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and committees of
the Company and the Subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its Subsidiaries as
to transactions and events subsequent to December 31, 1998,
nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements
included or incorporated by reference in the
Registration Statement and the Final Prospectus do
not comply as to form in all material respects with
applicable accounting requirements of the Act and
with the related rules and regulations adopted by the
Commission with respect to financial statements
included or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity
with generally accepted accounting principles applied
on a basis substantially consistent with that of the
audited financial statements included or incorporated
by reference in the Registration Statement and the
Final Prospectus;
(2) with respect to the period subsequent to
June 30, 1999, there were any changes, at a specified
date not more than five days prior to the date of the
letter, in the long-term debt, other liabilities,
deferred revenue and deferred income taxes of the
Company and its Subsidiaries
18
<PAGE>
or capital stock of the Company or decreases in net
current assets or shareholders' equity of the Company
and its Subsidiaries as compared with the amounts
shown on the June 30, 1999 consolidated balance sheet
included or incorporated by reference in the
Registration Statement and the Final Prospectus, or
for the period from July 1, 1999, to such specified
date there were any decreases, as compared with the
corresponding period in the preceding year, in total
revenue, earnings before income taxes or net
earnings, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives;
(3) the information included or incorporated
by reference in the Registration Statement and Final
Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to
Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K;
and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its Subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information set forth
under the captions "Prospectus Summary", "The Offering",
"Summary Financial Data", "Risk Factors", "Use of Proceeds",
"Capitalization" and "Description of Capital Stock" in the
Final Prospectus, the information included or incorporated by
reference in Items 1, 2, 6, 7, 11 and 12 of the Company's
Annual Report on Form 10-K, incorporated by reference in the
Registration Statement and the Final Prospectus, and the
information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q, incorporated by reference in
the Registration Statement and the Final Prospectus agrees
with the accounting records of the Company and its
Subsidiaries, excluding any questions of legal interpretation.
19
<PAGE>
References to the Final Prospectus in this paragraph (f)
include any supplement thereto at the date of the letter.
(g) The Company shall have requested and caused Ryder Scott
Company, McDaniel & Associates Ltd. and Fekete & Associates, Inc. to
have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, dated respectively as of the Execution Time and
as of the Closing Date, in form and substance satisfactory to the
Representatives, with respect to reserve information of the Company
contained in the Registration Statement and the Final Prospectus.
References to the Final Prospectus in this paragraph (g)
include any supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraphs (f) and (g) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
20
<PAGE>
(k) The Securities shall have been listed and admitted and
authorized for trading on the New York Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the
Representatives.
(l) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A
hereto from each officer and director of the Company and The Anschutz
Corporation, addressed to the Representatives.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Andrews & Kurth L.L.P., counsel for the
Underwriters, at 600 Travis, Suite 4200, Houston, Texas 77002, on the Closing
Date.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Salomon Smith Barney on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration
21
<PAGE>
of the Securities as originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; PROVIDED,
HOWEVER, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter through the Representatives specifically
for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page regarding
delivery of the Securities, and under the heading "Underwriting" or
"Plan of Distribution", (i) the sentences related to concessions and
reallowances and (ii) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in any Preliminary Final
Prospectus and the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The
22
<PAGE>
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and by the Underwriters on the other from the offering of the
Securities; PROVIDED, HOWEVER, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating
to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding
23
<PAGE>
sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it,
and benefits received by the Underwriters shall be deemed to be equal
to the total underwriting discounts and commissions, in each case as
set forth on the cover page of the Final Prospectus. Relative fault
shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriters
on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement
and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; PROVIDED, HOWEVER, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule
24
<PAGE>
II hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. TERMINATION. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange, the Toronto Stock Exchange
or the American Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on any of such Exchanges, the National
Association of Securities Dealers, Inc., the Chicago Board of Option Exchange,
the Chicago Board of Mercantile Exchange or the Chicago Board of Trade, (ii) a
banking moratorium shall have been declared either by Federal, Canadian or New
York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Final Prospectus (exclusive of any supplement
thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Salomon Smith Barney Inc. General Counsel
(fax no.: (212) 816-7912) and confirmed to the General Counsel, Salomon Smith
Barney Inc., at 388 Greenwich Street, New York, New York, 10013,
25
<PAGE>
Attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed to Forest Oil Corporation (fax no.: (303) 802-1602) and
confirmed to it at 1600 Broadway, Suite 2200, Denver, Colorado 80202, Attention:
Daniel L. McNamara.
13. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. HEADINGS. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
26
<PAGE>
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
27
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
Forest Oil Corporation
By: /s/ Joan C. Sonnen
-----------------------------------
Name: Joan Sonnen
Title: Vice President, Controller &
Corporate Secretary
28
<PAGE>
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Petrie Parkman & Co., Inc.
By: Salomon Smith Barney Inc.
By: /s/ Sean E. Rogers
----------------------
Name: Sean E. Rogers
Title: Vice President
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
29
<PAGE>
SCHEDULE I
Underwriting Agreement dated August 17, 1999
Registration Statement No. 333-16125
Representatives:
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Petrie Parkman & Co., Inc.
Title, Purchase Price and Description of Securities:
Title: Common Stock
Number of Shares to be sold by the Company: 9,000,000
Price to Public per Share (include accrued dividends, if any): $15.4375
Price to Public -- total: $138,937,500
Underwriting Discount per Share: $0.75
Underwriting Discount -- total: $6,750,000
Proceeds to Company per Share: $14.6875
Proceeds to Company -- total: $132,187,500
Closing Date, Time and Location: August 23, 1999 at 10:00 a.m. at:
Andrews & Kurth L.L.P.
600 Travis, Suite 4200
Houston, Texas 77002
Type of Offering: Non-Delayed
Date referred to in Section 5(f) after which the Company may offer or sell
securities issued or guaranteed by the Company without the consent of the
Representative(s): November 16, 1999
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Number of Securities to be
UNDERWRITERS PURCHASED FROM THE COMPANY
- ------------ --------------------------
<S> <C>
Salomon Smith Barney Inc. 1,701,000
Credit Suisse First Boston Corporation 1,701,000
Goldman, Sachs & Co. 1,215,000
Morgan Stanley & Co. Incorporated 1,215,000
Banc of America Securities LLC 1,134,000
Petrie Parkman & Co., Inc. 1,134,000
Dain Rauscher Wessels 225,000
Howard, Weil, Labouisse, Friedrichs Incorporated 225,000
Johnson Rice & Company L.L.C. 225,000
Stephens Inc. 225,000
Total ............ 9,000,000
---------
---------
</TABLE>
2
<PAGE>
EXHIBIT A
[Letterhead of officer, director or major stockholder of Forest Oil Corporation]
FOREST OIL CORPORATION
PUBLIC OFFERING OF COMMON STOCK
, 1999
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Petrie Parkman & Co., Inc.
As Representatives of the several Underwriters,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between Forest
Oil Corporation, a New York corporation (the "Company"), and each of you as
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $0.10 par value (the "Common
Stock"), of the Company.
<PAGE>
In order to induce you and the other Underwriters to enter
into the Underwriting Agreement, the undersigned will not, without the prior
written consent of Salomon Smith Barney Inc., offer, sell, contract to sell,
pledge or otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing of) a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days after the date
of this Agreement, other than shares of Common Stock disposed of as bona fide
gifts or transfers of shares of Common Stock effected by the undersigned, other
than on any securities exchange or in the over-the-counter market, provided that
any proposed donee or transferee shall execute a letter agreeing to be bound by
the terms and provisions of this agreement prior to the time any such gift or
transfer is effected.
If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement),
the agreement set forth above shall likewise be terminated.
Yours very truly,
[SIGNATURE OF OFFICER, DIRECTOR OR MAJOR
STOCKHOLDER]
[NAME AND ADDRESS OF OFFICER, DIRECTOR OR MAJOR STOCKHOLDER]
2
<PAGE>
[VINSON & ELKINS LETTERHEAD]
August 17, 1999
Forest Oil Corporation
1600 Broadway, Ste. 2200
Denver, Colorado 80202
Ladies and Gentlemen:
We have acted as counsel for Forest Oil Corporation, a New York
corporation (the "Company"), with respect to certain legal matters in
connection with the registration by the Company under the Securities Act of
1933, as amended (the "Securities Act"), of the offer and sale of securities
by the Company from time to time, pursuant to Rule 415 under the Securities
Act, including shares of common stock, $.10 par value per share, of the
Company with attached preferred share purchase rights (the "Common Stock"),
pursuant to the Company's Registration Statement on Form S-3 (File
No. 333-16125) filed with the Securities and Exchange Commission (the
"Commission") on November 14, 1996, as amended, and declared effective by the
Commission on February 2, 1999 and the additional Registration Statement on
Form S-3 (No. 333-85449) filed by the Company with the Commission on
August 17, 1999, pursuant to rule 462(b) under the Securities Act
(collectively, the "Registration Statement"), and the proposed sale of
9,000,000 shares of Common Stock, plus up to 1,350,000 additional shares to
cover over-allotments (the "Shares"), as described in a Prospectus Supplement
dated August 17, 1999 filed with the Commission pursuant to Rule 424(b)(5) of
the Securities Act (the "Prospectus Supplement").
Before rendering our opinions hereinafter set forth, we examined such
certificates, instruments and documents, including the definitive
underwriting agreement with respect to the sale of the shares (the
"Underwriting Agreement") filed as exhibits to the Registration Statement,
and we reviewed such questions of law, as we considered appropriate.
Based upon the foregoing examination and review, we are of the opinion
that the shares are duly authorized and, when issued and delivered to and
paid for by the underwriters in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and nonassessable.
The foregoing opinions are limited to the laws of the United States of
America and the State of New York.
<PAGE>
Forest Oil Corporation
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name in the Prospectus
Supplement forming a part of the Registration Statement under the caption
"Legal Matters." In giving this consent, we do not admit that we are within
the category of persons whose consent is required under Section 7 of the
Securities Act and the rules and regulations thereunder.
/s/ Vinson & Elkins L.L.P.
