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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): November 30, 1999
APACHE CORPORATION
(Exact name of registrant as specified in Charter)
DELAWARE 1-4300 41-0747868
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification Number)
2000 POST OAK BOULEVARD
SUITE 100
HOUSTON, TEXAS 77056-4400
(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (713) 296-6000
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On October 5, 1999, Apache Corporation ("Apache") entered into an agreement to
acquire, through its indirect wholly-owned subsidiary Apache Canada Ltd.,
certain oil and gas interests located in Alberta, British Columbia and
Saskatchewan, Canada, from Shell Canada Limited for approximately US $524
million, subject to adjustment. The transaction closed on November 30, 1999,
with an effective date of November 1, 1999, for Cdn $761 million after
adjustments (US $517 million at current exchange rates).
The transaction includes oil and gas interests with estimated proved reserves of
approximately 87.5 million barrels of oil equivalent, 294,294 net acres of
undeveloped lease holdings, proprietary 2-D and 3-D seismic data, and a
100-percent interest in a gas processing plant. Apache funded the purchase from
cash on hand and by issuing commercial paper. Apache's press release, dated
December 1, 1999 and related to the closing of this transaction, is listed under
Item 7 as Exhibit 99.1 and incorporated herein by reference.
The proceeds from the sales of the Notes, described below under Item 5, will be
used to repay a portion of Apache's outstanding commercial paper.
ITEM 5. OTHER EVENTS
On November 2, 1999, Apache and its indirect wholly-owned subsidiary, Apache
Finance Canada Corporation ("Apache Finance"), filed a Registration Statement on
Form S-3 (Registration Nos. 333-90147 and 333-90147-01) with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the
"Act"). The Registration Statement, as amended by Apache and Apache Finance on
November 12, 1999, was declared effective by the SEC on November 15, 1999, and
covers debt securities of Apache Finance, unconditionally guaranteed by Apache,
for delayed or continuous offering pursuant to Rule 415 under the Act for an
aggregate initial offering price not to exceed US $400 million. The Registration
Statement contains further information concerning the terms and offering of the
debt securities. Apache Finance will issue the debt securities under an
indenture dated November 23, 1999 (the "Indenture"), among Apache Finance as
Issuer, Apache as Guarantor, and The Chase Manhattan Bank as Trustee.
On or about December 13, 1999, and under a Terms Agreement dated December 8,
1999 and the Underwriting Agreement Basic Terms incorporated by reference
therein (collectively, the "Underwriting Agreement"), by and among Apache
Finance, Apache and Goldman, Sachs & Co., ABN AMRO Incorporated, Banc of America
Securities LLC, Chase Securities Inc., Credit Suisse First Boston Corporation,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, and RBC Dominion Securities Corporation (the "Underwriters"),
Apache Finance will issue to the Underwriters, for offering to the public, US
$300 million principal amount of 7.75% Notes due December 15, 2029 (the "Notes")
under the Indenture. Apache Finance will issue the notes in the form of a global
note, which includes Apache's
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guarantee. The Underwriting Agreement and the form of the Notes and Guarantee
are listed under Item 7 as Exhibits 1.1 and 4.1, respectively, and are
incorporated herein by reference.
Apache's press release, dated December 9, 1999 and related to the Notes, is
listed under Item 7 as Exhibit 99.2 and is incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) EXHIBITS.
EXHIBIT NO. DESCRIPTION
*1.1 Terms Agreement, dated December 8, 1999, and the Underwriting
Agreement Basic Terms, among Apache, Apache Finance and the
Underwriters.
*4.1 Form of 7.75% Notes due December 15, 2029 and Guarantee.
*10.1 Apache's 1996 Performance Stock Option Plan, as amended and
restated September 23, 1999.
*99.1 Press Release, dated December 1, 1999, "Apache Completes
Acquisition of Shell Canada Assets with 87.5 MMboe Proved
Reserves for US$517 Million".
*99.2 Press Release, dated December 9, 1999, "Apache Finance Canada
Sells $300 Million of 30-Year Notes Yielding 7.839 Percent".
- -------------
* filed herewith
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
APACHE CORPORATION
Date: December 10, 1999 /s/ Z. S. KOBIASHVILI
----------------------------------
Z. S. Kobiashvili
Vice President and General Counsel
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
*1.1 Terms Agreement, dated December 8, 1999, and the Underwriting
Agreement Basic Terms, among Apache, Apache Finance and the
Underwriters.
*4.1 Form of 7.75% Notes due December 15, 2029 and Guarantee.
*10.1 Apache's 1996 Performance Stock Option Plan, as amended and
restated September 23, 1999.
*99.1 Press Release, dated December 1, 1999, "Apache Completes
Acquisition of Shell Canada Assets with 87.5 MMboe Proved
Reserves for US$517 Million".
*99.2 Press Release, dated December 9, 1999, "Apache Finance Canada
Sells $300 Million of 30-Year Notes Yielding 7.839 Percent".
</TABLE>
- -----------
* filed herewith
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Exhibit 1.1
TERMS AGREEMENT
December 8, 1999
Apache Finance Canada Corporation
Suite 1000
700-9th Ave. S.W.
Calgary, Alberta
Canada T2P 3V4
Attention: Vice President and Treasurer
Apache Corporation
One Post Oak Central
2000 Post Oak Boulevard
Suite 100
Houston, Texas 77056-4400
Attention: Vice President and Treasurer
Dear Sirs:
The undersigned underwriters (the "Underwriters") understand that Apache Finance
Canada Corporation (the "Company") proposes to issue and sell $300,000,000
aggregate principal amount of its debt securities (the "Offered Securities")
irrevocably and unconditionally guaranteed as to payment of principal, premium,
if any, Additional Amounts, if any, and interest by Apache Corporation, as
guarantor (the "Guarantor"). Subject to the terms and conditions set forth
herein or incorporated by reference herein, the Underwriters offer to purchase,
severally and not jointly, the principal amount of Offered Securities set forth
below opposite their respective names at 98.102% of the principal amount thereof
together with accrued interest thereon from December 13, 1999 to the Closing
Time:
<TABLE>
<CAPTION>
Principal
Amount of
Underwriter Debt Securities
- ----------- ---------------
<S> <C>
Goldman, Sachs & Co. $120,002,000
ABN AMRO Incorporated $ 25,714,000
Banc of America Securities LLC $ 25,714,000
Chase Securities Inc. $ 25,714,000
Credit Suisse First Boston Corporation $ 25,714,000
Merrill Lynch, Pierce, Fenner & Smith $ 25,714,000
Incorporated
Morgan Stanley & Co. Incorporated $ 25,714,000
RBC Dominion Securities Corporation $ 25,714,000
------------
Total $300,000,000
============
</TABLE>
The Offered Securities shall have the following terms:
Principal amount: $300,000,000
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Form: registered book-entry form
Denomination: $1,000
Date of maturity: December 15, 2029
Interest rate, rates or formula
(or method of calculation
of interest accrual): 7.75% per annum
Date from which interest accrues: December 13, 1999
Interest payment dates, if any: June 15 and December 15
(commencing June 15, 2000)
Initial price to public: 98.977%
Closing Time: December 13, 1999
Place of delivery and payment: New York, New York
Company account for wire transfer
of payment: Bank One N.A.
ABA No. 071000013
Apache Finance Canada
Corporation
Account No. 5577527
Money Transfer Production,
9th Floor
525 West Monroe
Suite #Ili-0180
Chicago, Illinois 60661
Swift Code: FNBCUS44
Redemption provisions, if any:
As described in the
Prospectus Supplement,
dated the date hereof
relating to the Offered
Securities.
Lock-up pursuant to Section 3(i) of the
Basic Terms (as defined herein): yes
Securities Exchanges, if any, on which
application will be made to list the
Offered Securities: none
Delayed Delivery Contracts: not authorized
Delivery date:
Expiration date:
Compensation to Underwriters:
Minimum contract:
Maximum aggregate principal amount:
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Other terms, if any: As described in the
Prospectus Supplement,
dated the date hereof
relating to the Offered
Securities.
All the provisions contained in "Apache Finance Canada Corporation
- --Debt Securities--Underwriting Agreement Basic Terms" (the "Basic Terms")
attached hereto as Annex A, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined.
Any notice by the Company or the Guarantor to the Underwriters pursuant
to this Terms Agreement shall be sufficient if given in accordance with Section
11 of the Basic Terms addressed to:
Goldman, Sachs & Co.
32 Old Slip, 21st Floor
New York, NY 10005
Attention: Registration Department
Telecopy No.: (212) 357-1557
which shall, for all purposes of this Agreement, be the "Representative".
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Very truly yours,
GOLDMAN, SACHS & CO.
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
RBC DOMINION SECURITIES CORPORATION
By: GOLDMAN, SACHS & CO.
Acting for itself and as
Representative of the
Underwriters
By: /s/ Goldman, Sachs & Co.
----------------------------------
Name:
Title:
Accepted:
APACHE FINANCE CANADA CORPORATION
By: /s/ Matthew W. Dundrea
----------------------------------------
Name: Matthew W. Dundrea
Title: Vice President and Treasurer
APACHE CORPORATION
By: /s/ Matthew W. Dundrea
----------------------------------------
Name: Matthew W. Dundrea
Title: Vice President and Treasurer
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APACHE FINANCE CANADA CORPORATION
DEBT SECURITIES
GUARANTEED BY APACHE CORPORATION
UNDERWRITING AGREEMENT BASIC TERMS
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APACHE FINANCE CANADA CORPORATION
Debt Securities
Guaranteed by Apache Corporation
UNDERWRITING AGREEMENT BASIC TERMS
Apache Finance Canada Corporation, an unlimited liability company
organized under the laws of Nova Scotia, Canada (the "Company"), may issue and
sell from time to time its debt securities (the "Debt Securities"). The Debt
Securities are unconditionally guaranteed as to payment of principal, premium,
if any, Additional Amounts (as defined in the Indenture), if any, and interest
by Apache Corporation (the "Guarantor"). The Debt Securities are issuable under,
and the guarantee thereof by the Guarantor (the "Guarantee") is contained in, an
indenture, dated as of November 23, 1999 (the "Indenture"), between the Company,
the Guarantor and The Chase Manhattan Bank, as trustee (the "Trustee"). Each
issue of Debt Securities may vary as to series, aggregate principal amount,
maturity, interest rate or rates and timing of payments thereof, redemption
provisions, if any, and any other variable terms as set forth in the Terms
Agreement (as defined below) relating thereto which the Indenture contemplates
may be set forth in the Debt Securities as issued from time to time.
Whenever the Company determines to make an offering of Debt Securities,
the Company and the Guarantor will enter into an agreement (the "Terms
Agreement") providing for the sale of such securities (the "Offered Securities")
to, and the purchase and offering thereof by, one or more underwriters specified
in the Terms Agreement (the "Underwriters", which term shall include any
Underwriters substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the Offered Securities shall specify the names of the Underwriters
participating in such offering, the amount of Offered Securities which each such
Underwriter severally agrees to purchase, the price at which the Offered
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, the time and place of delivery and payment, such other
information as is indicated in Exhibit A hereto and such other terms as are
agreed by the Company and the Underwriters. In addition, each Terms Agreement
shall specify whether the Company has agreed to grant to the Underwriters an
option to purchase additional Offered Securities to cover over-allotments, if
any, and the amount of Offered Securities subject to such option (the "Option
Securities"). As used herein, the term "Offered Securities" shall include the
Option Securities, if any, and "Representatives" shall mean the Underwriter or
Underwriters so specified in the Terms Agreement or, if no Underwriter is so
specified, shall mean each Underwriter. The Terms Agreement may be in the form
of an exchange of any standard form of written telecommunication between the
Underwriters and the Company. The offering of the Offered Securities will be
governed by the Terms Agreement, as supplemented hereby
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(collectively, this "Agreement"), and this Agreement shall inure to the benefit
of and be binding upon each Underwriter participating in the offering of the
Offered Securities.
The Company and the Guarantor have prepared and filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (Nos. 333-90147 and 333-90147-01) for the registration of Debt
Securities, including the Offered Securities and the Guarantee, 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"), and have
prepared and filed such amendments thereto as may have been required to the date
hereof. Such registration statement, as amended, has been declared effective by
the Commission, and the Indenture has been qualified under the Trust Indenture
Act of 1939 (the "1939 Act"). A preliminary prospectus supplement relating to
the Offered Securities (the "preliminary prospectus") was provided to the
Underwriters and filed pursuant to Rule 424 under the 1933 Act. As provided in
Section 3(a), a prospectus supplement reflecting the terms of the Offered
Securities, the terms of the offering thereof and the other matters set forth
therein has been prepared and will be filed pursuant to Rule 424 under the 1933
Act. Such prospectus supplement, in the form first filed after the date of the
Terms Agreement pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement." Such registration statement, as amended at the date of the Terms
Agreement, including the exhibits thereto and the documents filed by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act"), that are incorporated by reference therein, 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 basic prospectus
included in the Registration Statement relating to all offerings of Debt
Securities and the Guarantee under the Registration Statement, as supplemented
by the Prospectus Supplement, is herein called the "Prospectus," except that, if
such basic prospectus is amended or supplemented on or prior to the date on
which the Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the basic prospectus as so amended or supplemented
and as supplemented by the Prospectus Supplement or, if any revised prospectus
shall be provided to the Underwriters by the Company and the Guarantor for their
use in connection with the offering of the Offered Securities which differs from
such basic prospectus and Prospectus Supplement (whether or not required to be
filed by the Company pursuant to Rule 424), the term "Prospectus" shall refer to
such revised prospectus (including any prospectus supplement) from and after the
time it is first provided to the Underwriters for such use, in either case
including the documents filed by the Company with the Commission pursuant to the
1934 Act, that are incorporated by reference therein.
SECTION 1. Representations and Warranties. The Company represents and
warrants as to matters relating to the Company and the Guarantor represents and
warrants as to matters relating to the Guarantor and its consolidated
subsidiaries, to each Underwriter named in the Terms Agreement as of the date
thereof and 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 (in each case,
a "Representation Date"), as follows:
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(a) The Company has been duly incorporated and is validly
existing as an unlimited liability company under the laws of
Nova Scotia, Canada, with corporate power and authority to
own, lease and operate its properties and conduct its business
as described in the Prospectus, and to enter into and perform
its obligations under this Agreement, the Offered Securities
and the Indenture; and the Company is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which the character or
location of its properties or the nature or the conduct of its
business requires such qualification, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify or to be in good
standing would not have a material adverse effect on the
condition, financial or otherwise, on the results of
operations, business affairs or business prospects of the
Company or on its ability to perform its obligations hereunder
or under the Offered Securities or the Indenture. The Company
is an indirect wholly-owned subsidiary of the Guarantor and
has one wholly-owned subsidiary, Apache Canada Management
Limited, which has one wholly-owned subsidiary, Apache Canada
Holdings Ltd.
(b) The Guarantor 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 Prospectus and to enter into and
perform its obligations under this Agreement; and the
Guarantor 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 business, except
where the failure to so qualify and be in good standing would
not have a material adverse effect on the condition, financial
or otherwise, or the results of operations, business affairs
or business prospects of the Guarantor and its subsidiaries
considered as one enterprise.
(c) Each "significant subsidiary" of the Guarantor 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 Prospectus 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 to so 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
Guarantor and its subsidiaries considered as one enterprise;
and, except as described in the Prospectus, 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
Guarantor, directly or
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through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(d) The Guarantor 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
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 or the
Guarantor, are contemplated by the Commission, and any
request on the part of the Commission for additional
information has been complied with.
(e) At the time the Registration Statement and the Rule 462(b)
Registration Statement, if any, became effective and as of
each Representation Date, the Registration Statement and the
Rule 462(b) Registration Statement, if any, complied and will
comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act 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 Guarantor with
the Commission and as of each Representation Date, 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; and
the Prospectus, as of each Representation Date, does not and
will not include an 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 representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration
Statement and the Rule 462(b) Registration Statement, if any,
or the Prospectus made in reliance upon and in conformity with
information furnished to the Company or the Guarantor in
writing by the Underwriters expressly for use in the
Registration Statement and the Rule 462(b) Registration
Statement, if any, or the Prospectus.
(f) The documents incorporated by reference in the Prospectus,
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
promulgated thereunder (the "1934 Act Regulations"), and, when
read together and with the other information in the
Prospectus, did not and will not include an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under
which they were or are made, not misleading.
(g) The accountants who certified the financial statements
included or incorporated by reference in the Registration
Statement and the Prospectus are
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independent public accountants with respect to the Company and
the Guarantor as required by the 1933 Act and the 1933 Act
Regulations.
(h) The financial statements and any supporting schedules of
the Guarantor and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the
Guarantor 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 Prospectus present fairly
the information required to be stated therein; and 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.
(i) The petroleum engineers who have consented to being named
as having reviewed certain reserve data included or
incorporated by reference in the Prospectus are independent
engineers with respect to the Guarantor and its subsidiaries.
(j) This Agreement and the applicable Delayed Delivery
Contracts (as defined below), if any, have been duly
authorized, executed and delivered by the Company and the
Guarantor and, upon execution and delivery by the
Underwriters, will be valid and legally binding agreements of
the Company and the Guarantor; on and after the Closing Time,
the Indenture will have been duly authorized, executed and
delivered by the Company and the Guarantor and, assuming due
execution and delivery by the Trustee, will be a valid and
legally binding agreement of the Company and the Guarantor
enforceable in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights generally and by general
equity principles, and except further as enforceability
thereof may be limited by (1) requirements that a claim with
respect to any Debt Securities denominated other than in U.S.
dollars (or a foreign currency or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay
or prohibit the making of payments outside the United States.
The Offered Securities have been duly and validly authorized
for issuance, offer and sale pursuant to this Agreement and
each Delayed Delivery Contract, if any, and when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against payment of the
consideration therefor, the Offered Securities will constitute
valid
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and legally binding obligations of the Company enforceable
in accordance with their terms, except as enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equity
principles, and except further as enforceability thereof may
be limited by (1) requirements that a claim with respect to
any Offered Securities denominated other than in U.S.
dollars (or a foreign currency or composite currency
judgment in respect of such claim) be converted into U.S.
dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (2) governmental
authority to limit, delay or prohibit the making of payments
outside the United States. The Offered Securities and the
Indenture, including the Guarantee, will be substantially in
the form heretofore delivered to the Underwriters and
conform in all material respects to all statements relating
thereto contained in the Prospectus; and each Holder (as
defined in the Indenture) of Offered Securities will be
entitled to the benefits of the Indenture.
(k) The Guarantee has been duly and validly authorized by the
Guarantor, and, when the Offered Securities are issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against payment of the
consideration therefor, the Guarantee will be a valid and
legally binding obligation of the Guarantor with respect to
the Offered Securities enforceable in accordance with its
terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, moratorium and other laws relating to
or affecting creditors' rights generally against the Guarantor
and by general equity principles and except further as
enforceability thereof may be limited by (1) requirements that
a claim with respect to any Offered Securities denominated
other than in U.S. dollars (or a foreign currency or composite
currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (2) governmental
authority to limit, delay or prohibit the making of payments
outside the United States, and each Holder of Offered
Securities will be entitled to the benefits of the Guarantee.
(l) Since the respective dates as of which information is
given in the Registration Statement, any Rule 462(b)
Registration Statement and the Prospectus, 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 or the
Guarantor and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business and
(2) there have been no material transactions entered into by
the Guarantor or any of its subsidiaries other than those in
the ordinary course of business.
(m) Neither the Guarantor 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
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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 or the Guarantor and its
subsidiaries considered as one enterprise; and the execution
and delivery of this Agreement, each Delayed Delivery
Contract, if any, and the Indenture and the consummation of
the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action of the
Company and the Guarantor 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 Guarantor or any of its
subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Guarantor 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 Guarantor 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 the Guarantor 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 or the Guarantor and its
subsidiaries considered as one enterprise.
(n) 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 and the Guarantor of the transactions
contemplated by this Agreement or in connection with the sale
of Offered Securities hereunder, except such as have been
obtained or rendered, as the case may be, or as may be
required under state or Blue Sky laws.
(o) Except as may be included or incorporated by reference in
the Registration Statement and the Prospectus, there is no
action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending
or, to the knowledge of the Company or the Guarantor,
threatened against or affecting the Guarantor or any of its
subsidiaries which might, in the opinion of the Company or the
Guarantor, 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 or the Guarantor 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 this Agreement or the Indenture or any
transaction contemplated hereby or thereby.
(p) There are no contracts or documents of the Guarantor or
any of its subsidiaries which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by
the 1933 Act Regulations which have not been so filed.
8
<PAGE> 13
(q) Neither the Guarantor 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 or the Guarantor
and its subsidiaries considered as one enterprise; and the
Guarantor 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 or the Guarantor and its
subsidiaries considered as one enterprise.
(r) The Guarantor 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 or the Guarantor and its subsidiaries
considered as one enterprise, and neither the Guarantor nor
any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others
with respect to any trademarks, service marks or trade names
which, 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 or the Guarantor and its subsidiaries
considered as one enterprise.
(s) The Guarantor 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 Guarantor 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
interests, claims, restrictions or encumbrances and defects of
any kind, except such as (1) are described in the Prospectus,
(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
9
<PAGE> 14
prospects of the Company or the Guarantor and its subsidiaries
considered as one enterprise.
(t) The information underlying the estimates of oil and gas
reserves as described in the Prospectus 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 and the Guarantor
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 Prospectus, the Company and the
Guarantor are 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 Prospectus. 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.
(u) Neither the Company, nor the Guarantor or any of its other
subsidiaries, is required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
(v) The Guarantor has complied and will comply with the
provisions of Florida H.B. 1771, codified as Section 517.075
of the Florida Statutes, 1987, as amended, and all regulations
promulgated thereunder relating to issuers doing business in
Cuba.
(w) The Guarantor has reviewed its operations and that of its
subsidiaries and any third parties with which the Guarantor or
any of its subsidiaries has a material relationship to
evaluate the extent to which the business or operations of the
Guarantor or any of its subsidiaries will be affected by the
Year 2000 Problem. As a result of such review, the Guarantor
has no reason to believe, and does not believe, that the Year
2000 Problem will have a material adverse effect on the
condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Guarantor and its subsidiaries considered as one enterprise or
result in any material loss or interference with the Guarantor
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.
(x) Except as described in the Registration Statement, (1)
neither the Guarantor 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
10
<PAGE> 15
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 or the Guarantor and its subsidiaries considered as
one enterprise, and (2) to the best of the Company's and the
Guarantor'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 Guarantor or any of its
subsidiaries relating to any Hazardous Materials or the
violation of any Environmental Laws, which, 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 or the Guarantor and its
subsidiaries considered as one enterprise.
(y) Except as described in the Prospectus, or as has already
been paid or authorized for payment, no stamp duty or similar
tax or duty is payable under applicable laws or regulations of
Canada or any political subdivision thereof (collectively,
"Canada") in connection with the creation, issuance or
delivery of the Offered Securities, the transfer of any of the
Offered Securities or with respect to the execution and
delivery of this Agreement, the Offered Securities or the
Indenture or any document contemplated hereby or thereby.
(z) Except as described in the Prospectus, payments made by
the Company under the Offered Securities or the Guarantor
under the Guarantee or either of them hereunder or under the
Indenture will not be subject under the current laws or
regulations of Canada to any withholdings or similar charges
for or on account of taxation.
(aa) The choice of the laws of the State of New York as the
governing law of the Offered Securities, the Indenture and
this Agreement is a valid choice of law under the laws of
Canada and courts of Canada will honor this choice of law. The
Company has the power to submit and pursuant to this Agreement
and the Indenture has legally, validly, effectively and
irrevocably submitted to the personal jurisdiction of the
United States District Court for the Southern District of New
York and the Supreme Court of New York, New York County
(including, in each case, any appellate courts therefrom) in
any suit, action or proceeding against it arising out of or
related to any of the Offered Securities, the Indenture and
the Guarantee or with respect to its obligations, liabilities
or any other matter arising out of or in connection with the
sale of the Offered Securities by the Company to the
Underwriters under this Agreement and has validly and
irrevocably waived any objection to the venue of a proceeding
in any such court;
11
<PAGE> 16
and has the power to designate, appoint and empower and
pursuant to this Agreement and the Indenture has legally,
validly, effectively and irrevocably designated, appointed
and empowered an agent for service of process in any suit or
proceeding based on or arising under this Agreement, the
Offered Securities or the Indenture, as the case may be, in
any federal or state court in the State of New York.
(bb) Except as described in the Prospectus, any final judgment
for a definite sum of money rendered by any court of the State
of New York or of the United States located in the State of
New York having jurisdiction under its own domestic laws in
respect of any suit, action or proceeding against the Company
based upon any instruments or agreements entered into for the
consummation of the transactions contemplated herein would be
declared enforceable against the Company by the courts of
Canada without reexamination, review of the merits of the
cause of action in respect of which the original judgment was
given or relitigation of the matters adjudicated upon or
payment of any stamp, registration or similar tax or duty,
provided that (A) the judgment is consistent with public
policy in Canada and any relevant political subdivision, (B)
the judgment was not given or obtained by fraud or in a manner
contrary to natural justice, (C) the judgment was not based on
a clear mistake of law or fact, (D) the judgment was not
directly or indirectly for the payment of taxes or other
charges of a like nature or of a fine or other penalty, (E)
the judgment is for a definite sum, and (F) there has been no
prior judgment in another court between the same parties
concerning the same issues as are dealt with in the judgment
to be enforced in Canada. The Company is not aware of any
reason why the enforcement in Canada of such a judgment in
respect of any of the instruments or agreements executed for
consummation of the transactions contemplated herein or in the
Prospectus would be contrary to public policy in Canada.
(cc) The Company, and its obligations under this Agreement,
the Offered Securities and the Indenture, are subject to civil
and commercial law and to suit and neither it nor any of its
properties, assets or revenues have any right of immunity, on
the grounds of sovereignty, from any legal action, suit or
proceeding, from the giving of any relief in any such legal
action, suit or proceeding, from setoff or counterclaim, from
the jurisdiction of any Canadian, New York State or U.S.
federal court, as the case may be, from service of process,
attachment upon or prior to judgment, or attachment in aid of
execution of judgment, or from execution or enforcement of a
judgment, or other legal process or proceeding for the giving
of any relief or for the enforcement of a judgment, in any
such court, with respect to its obligations or liabilities or
any other matter under or arising out of or in connection with
the Offered Securities, this Agreement or the Indenture; and,
to the extent that the Company or any of its properties,
assets or revenues may have or may hereafter become entitled
to any such right of immunity in any such court in which
proceedings may at any time be commenced, the Company has
waived or will waive such right to the extent permitted by law
and has consented to such relief and enforcement as provided
in this Agreement and the Indenture.
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<PAGE> 17
(dd) It is not necessary under the laws of Canada or any
authority or agency therein in order to enable an owner of any
interest in the Offered Securities or the Guarantee to enforce
its rights under the Offered Securities or the Guarantee or to
enable any of the Underwriters to enforce its rights under
this Agreement, as the case may be, that it should, as a
result solely of its holding or underwriting, as the case may
be, of the Offered Securities, be licensed, qualified or
otherwise entitled to carry on business in Canada or any
authority or agency therein; the Offered Securities, the
Indenture and this Agreement are in proper legal form under
the laws of Canada or authority or agency therein for the
enforcement thereof against the Company therein; and it is not
necessary to ensure the legality, validity, enforceability or
admissibility in evidence of the Offered Securities, the
Indenture or this Agreement in Canada or any authority or
agency therein that any of them be filed or recorded or
enrolled with any court, authority or agency in, or that any
stamp, registration or similar taxes or duties be paid to any
court, authority or agency of Canada.
(ee) Except as described in the Prospectus, no exchange
control authorization or other authorization, approval,
consent or license of any governmental authority or agency of
or in Canada is required for the payment by the Company of any
amounts in United States dollars pursuant to the terms of the
Offered Securities or to the Underwriters pursuant to this
Agreement.
Any certificate signed by any director or officer of the Company or the
Guarantor and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Guarantor, as the case may be, as to the matters covered thereby.
SECTION 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase the Offered
Securities pursuant to this Agreement shall be deemed to have been made on the
basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein and therein set forth. Offered
Securities which are subject to Delayed Delivery Contracts are herein sometimes
referred to as "Delayed Delivery Offered Securities" and Offered Securities
which are not subject to Delayed Delivery Contracts are herein sometimes
referred to as "Immediate Delivery Offered Securities."
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the Terms Agreement, an option to the
Underwriters named in the Terms Agreement, severally and not jointly, to
purchase up to the principal amount of Option Securities set forth therein at
the same price per security (plus, except as otherwise provided in the Terms
Agreement, interest, if any, accrued and unpaid from the Closing Time until the
applicable Date of Delivery), as is applicable to the Offered Securities. Such
option, if granted, will expire 30 days after the date of the Terms Agreement,
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Offered Securities upon notice by the Representatives to
the
13
<PAGE> 18
Company setting forth the principal amount of Option Securities as to which
the several Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Securities. Any such time and date of
delivery (a "Date of Delivery") shall be determined by the Representatives, but
shall not be later than seven full business days and not earlier than two full
business days after the exercise of said option, nor in any event prior to the
Closing Time, as hereinafter defined, unless otherwise agreed upon by the
Representatives, the Company and the Guarantor. If the option is exercised as to
all or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase the proportion of the total principal
amount of Option Securities then being purchased that the principal amount of
Immediate Delivery Offered Securities each such Underwriter has agreed to
purchase, as set forth in the Terms Agreement, bears to the total principal
amount of Immediate Delivery Offered Securities, subject to such adjustments as
the Representatives in their discretion shall make to eliminate any sales or
purchases in less than authorized denominations.
(c) Payment of the purchase price for, and delivery of, the Immediate
Delivery Offered Securities to be purchased by the Underwriters shall be made at
the place set forth in the Terms Agreement, or at such other place as shall be
agreed upon by the Representatives, the Company and the Guarantor, on the third
business day (unless postponed in accordance with the provisions of Section 10)
following the date of the Terms Agreement or such other time as shall be agreed
upon by the Underwriters, the Company and the Guarantor (such time and date
being referred to as the "Closing Time"). Except as specified in the Terms
Agreement, payment shall be made to the Company by wire transfer in same day
funds to the account specified in the Terms Agreement against delivery to the
Underwriters for the respective accounts of the Underwriters of the Immediate
Delivery Offered Securities to be purchased by them (unless the Offered
Securities are issuable only in the form of one or more global instruments
registered in the name of a depository or a nominee of a depository, in which
event the Underwriters' interest in such global instrument shall be noted in a
manner satisfactory to the Underwriters and their counsel). In addition, in the
event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates
representing, such Option Securities shall be made at such place as shall be
agreed upon by the Representatives and the Company, on each Date of Delivery as
agreed by the Representatives and the Company. The Immediate Delivery Offered
Securities shall be in such denominations and registered in such names as the
Underwriters may request in writing at least two business days prior to the
Closing Time or relevant Date of Delivery, as the case may be. The Immediate
Delivery Offered Securities, which if agreed by the Representatives may be in
temporary form, will be made available for examination and packaging by the
Representatives on or before the first business day prior to the Closing Time or
relevant Date of Delivery, as the case may be.
(d) If authorized by the Terms Agreement, the Underwriters named
therein may solicit offers to purchase Offered Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto, with such changes therein as the
Company and the Guarantor may approve. As compensation for arranging Delayed
Delivery Contracts, the Company or the Guarantor, as the case may be, will pay
to the Representatives at the Closing Time, for the account of the Underwriters,
a fee equal to that percentage of the aggregate principal amount of Delayed
Delivery Offered Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the Terms Agreement. Any Delayed Delivery
Contracts are to be with institutional investors of the types
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<PAGE> 19
set forth in the Prospectus Supplement. At the Closing Time the Company and the
Guarantor will enter into Delayed Delivery Contracts (for not less than the
minimum principal amount of Delayed Delivery Offered Securities per Delayed
Delivery Contract specified in the Terms Agreement) with all purchasers proposed
by the Underwriters and previously approved by the Company and the Guarantor as
provided below, but not for an aggregate principal amount of Offered Securities
in excess of that specified in the Terms Agreement. The Underwriters will not
have any responsibility for the validity or performance of Delayed Delivery
Contracts.
(e) The Representatives are to submit to the Company, at least two
business days prior to the Closing Time, the names of any institutional
investors with which it is proposed that the Company will enter into Delayed
Delivery Contracts and the principal amount of Delayed Delivery Offered
Securities to be purchased by each of them, and the names of the institutions
with which the making of Delayed Delivery Contracts is approved by the Company
and the principal amount of Delayed Delivery Offered Securities to be covered by
each such Delayed Delivery Contract.
(f) The principal amount of Offered Securities agreed to be purchased
by the respective Underwriters pursuant to this Agreement shall be reduced by
the principal amount of Delayed Delivery Offered Securities covered by Delayed
Delivery Contracts, as to each Underwriter as set forth in a written notice
delivered by the Underwriters to the Company; provided, however, that the total
principal amount of Immediate Delivery Offered Securities to be purchased by all
Underwriters shall be the total amount of the Offered Securities covered by this
Agreement, less the total principal amount of Delayed Delivery Offered
Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company and the Guarantor. The Company and
the Guarantor covenant with each Underwriter as follows:
(a) Immediately following the execution of the Terms
Agreement, the Company will prepare a Prospectus Supplement in
form approved by the Representatives setting forth the
principal amount of Offered Securities and their terms not
otherwise specified in the Indenture, if applicable, the names
of the Underwriters and the principal amount of the Offered
Securities which each severally and not jointly has agreed to
purchase, the names of the Underwriters, the price at which
the Offered Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the
selling concession and reallowance, if any, any delayed
delivery arrangements, and such other information as the
Representatives and the Company deem appropriate in connection
with the offering of the Offered Securities. The Company will
promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 of the 1933 Act
Regulations and will furnish to the Underwriters named therein
as many copies of the Prospectus (including the Prospectus
Supplement) as the Representatives shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Offered
Securities any event shall occur or condition exist as a
result of which it is necessary, in the opinion of counsel for
15
<PAGE> 20
the Underwriters or counsel for the Guarantor and the Company,
to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered
to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the
Company and the Guarantor will promptly amend the Registration
Statement and the Prospectus, whether by filing documents
pursuant to the 1934 Act or the 1933 Act or otherwise, as may
be necessary to correct such untrue statement or omission or
to make the Registration Statement and the Prospectus comply
with such requirements.
(c) The Guarantor will make generally available to its
security holders as soon as practicable, but not later than 90
days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering each twelve
month period beginning, in each case, not later than the first
day of the Guarantor's fiscal quarter next following the
"effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Offered
Securities.
(d) While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities,
the Company or the Guarantor will give the Representatives
notice of its intention to file any additional registration
statement with respect to the registration of additional Debt
Securities, any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment or
supplement to the Prospectus, whether pursuant to the 1934
Act, the 1933 Act or otherwise; will furnish the Underwriters
with copies of any such amendment or supplement or other
documents proposed to be filed a reasonable time in advance of
such proposed filing or use, as the case may be; and will not
file any such amendment or supplement or other documents in a
form to which the Representatives or counsel to the
Underwriters reasonably object.
(e) While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities,
the Company or the Guarantor will notify the Representatives
immediately, and promptly confirm the notice in writing, of
(i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing
of any supplement to the Prospectus or any document to be
filed pursuant to the 1934 Act which will be incorporated by
reference into the Registration Statement or the Prospectus,
(iii) the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus or the
Prospectus Supplement, (iv) any request by the Commission for
any amendment to the Registration Statement, or any amendment
or supplement to the Prospectus or for additional information,
(v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose
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<PAGE> 21
and (vi) any change in the rating assigned by any nationally
recognized statistical rating organization to any debt
securities of the Company or the Guarantor 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 of the Company or the Guarantor. The Company and
the Guarantor 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.
(f) The Company will deliver to each Underwriter one conformed
copy of the Registration Statement (as originally filed) and
of each amendment thereto (including exhibits filed therewith
or incorporated by reference therein and documents
incorporated by reference in the Prospectus) and will also
deliver to the Representatives as many conformed copies of the
Registration Statement as originally filed and of each
amendment thereto (without exhibits) as the Representatives
may reasonably request. While the Prospectus is required by
the 1933 Act to be delivered in connection with sales of the
Offered Securities, the Company will furnish to the
Representatives as many copies of the Prospectus (including
the Prospectus Supplement) as the Representatives reasonably
request.
(g) The Company and the Guarantor will endeavor, in
cooperation with the Underwriters, to qualify the Offered
Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the
United States as the Underwriters may designate, and will
maintain such qualifications in effect for as long as may be
required for the distribution of the Offered Securities;
provided, however, that neither the Company nor the Guarantor
shall be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company and
the Guarantor will file such statements and reports as may be
required by the laws of each jurisdiction in which the Offered
Securities have been qualified as above provided. The Company
or the Guarantor will promptly advise the Representatives of
the receipt by the Company of any notification with respect to
the suspension of the qualification of the Offered Securities
for sale in any such state or jurisdiction or the initiating
or threatening of any proceeding for such purpose.
(h) The Company and the Guarantor, during the period when the
Prospectus is required to be delivered under the 1933 Act or
the 1934 Act in connection with sales of the Offered
Securities, will file all documents required to be filed with
the Commission pursuant to Sections 13, 14 or 15(d) of the
1934 Act within the time periods prescribed by the 1934 Act
and the 1934 Act Regulations.
(i) If specified in the Terms Agreement, between the date of
the Terms Agreement and the completion of the distribution of
the Offered Securities or the Closing Time, whichever is
later, or such other time as is specified in the Terms
Agreement, the Company or the Guarantor will not, without the
prior written consent of the Representatives, offer or sell,
grant any option for the sale of, or
17
<PAGE> 22
enter into any agreement to sell, any debt securities of the
Company or the Guarantor substantially similar to the
Offered Securities (other than the Offered Securities that
are to be sold pursuant to such agreement or commercial
paper in the ordinary course of business).
SECTION 4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase Offered Securities pursuant to this Agreement are
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantor herein contained, to the accuracy of the statements
which the Company's and the Guarantor's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the Company
and the Guarantor of all of their respective covenants and other obligations
hereunder and under the Terms Agreement, and to the following further
conditions:
(a) The Registration Statement and any Rule 462(b)
Registration Statement have become effective and, at the
Closing Time, no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) 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 Underwriters. 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) At the Closing Time, the Representatives shall have
received:
(1) The favorable opinion, dated as of the Closing
Time, of Chamberlain, Hrdlicka, White, Williams & Martin, counsel to
the Company and the Guarantor, to the effect that:
(i) The Guarantor has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(ii) This Agreement and the
applicable Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and the
Guarantor.
(iii) The Indenture has been duly
authorized, executed and delivered by the Company and the
Guarantor and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee)
constitutes a legal, valid and binding agreement of the
Company and the Guarantor, enforceable in accordance with
its terms, except as enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or
18
<PAGE> 23
affecting creditors' rights generally and by general equity
principles, and further as enforceability thereof may be
limited by (1) requirements that a claim with respect to any
Debt Securities denominated other than in U.S. dollars (or a
foreign currency or composite currency judgment in respect
of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay
or prohibit the making of payments outside the United
States.
(iv) The Guarantee has been duly
authorized by the Guarantor and, when the Offered Securities
are executed and authenticated as specified in the Indenture
and delivered against payment pursuant to the Terms
Agreement, as supplemented by this Agreement, or any Delayed
Delivery Contracts, will, with respect to such Securities,
constitute the valid and binding obligation of the
Guarantor, enforceable in accordance with its terms, except
as enforceability thereof may be limited by bankruptcy,
insolvency, moratorium and other laws relating to or
affecting creditors' rights against the Guarantor and by
general equity principles, and further as enforceability
thereof may be limited by (1) requirements that a claim with
respect to any Debt Securities denominated other than in
U.S. dollars (or a foreign currency or composite currency
judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (2) governmental
authority to limit, delay or prohibit the making of payments
outside the United States.
(v) The Offered Securities, in the
form(s) certified by the Company as of the Closing Time,
have been duly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued, authenticated
and delivered pursuant to the provisions of this Agreement,
any Delayed Delivery Contract and the Indenture against
payment of the consideration therefor, will constitute valid
and legally binding obligations of the Company, enforceable
in accordance with their terms, except as enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equity
principles, and except further as enforceability thereof may
be limited by (1) requirements that a claim with respect to
any Debt Securities denominated other than in U.S. dollars
(or a foreign currency or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay
or prohibit the making of payments outside the United States;
and each holder of Offered Securities will be entitled to the
benefits of the Indenture.
(vi) The Offered Securities and the
Indenture conform in all material respects to the statements
relating thereto in the Prospectus; and the statements in
the Prospectus under the captions "Description of Notes and
Guarantees" and "Description of Securities," insofar as they
purport to summarize certain provisions of documents
specifically referred to therein, are accurate summaries of
such provisions.
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<PAGE> 24
(vii) The Indenture has been duly
qualified under the 1939 Act.
(viii) 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.
(ix) The Registration Statement,
including any Rule 462(b) Registration Statement, and the
Prospectus (except for financial statements and engineering
reports and other financial or engineering data, and except
for those parts of the Registration Statement that
constitute the Form T-1, as to which such counsel need not
express any opinion), as of their respective effective or
issue dates, appeared on their face to be appropriately
responsive to the requirements of the 1933 Act and the 1933
Act Regulations.
(x) The information contained in
the Prospectus under the caption "Certain Income Tax
Considerations - United States Federal Income Tax
Considerations," to the extent that such information
constitutes matters of law, summaries of legal matters or
legal conclusions, has been reviewed by such counsel and is
correct.
(xi) The Company has legally,
validly, effectively and irrevocably submitted to the
personal jurisdiction of any federal or state court in the
State of New York, County of New York in any suit or
proceeding based on or arising under this Agreement and has
validly and effectively waived any objection to the venue of
a proceeding in any such court as provided in Section 14 of
this Agreement; and the Company has the power to designate,
appoint and empower and pursuant to this Agreement has
validly, effectively and irrevocably designated, appointed
and empowered an agent for service of process in any suit or
proceeding based on or arising under this Agreement in any
federal or state court in the State of New York, County of
New York as provided in Section 14 of this Agreement.
In rendering such opinion, counsel for the Company and the
Guarantor may rely (i) as to matters of fact upon the
representations of officers of the Company and the Guarantor
contained in any certificate delivered to such counsel and
certificates of public officials, which certificates shall be
attached to or delivered with such opinion, (ii) as to matters
of the laws of Canada and its provinces upon the opinions of
McInnes Cooper & Robertson and Bennett Jones furnished
pursuant to this Agreement and (iii) as to the laws of the
State of New York applicable to the enforceability of the
Offered Securities and the Indenture upon the opinion of Brown
& Wood LLP. 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.
20
<PAGE> 25
(2) The favorable opinion of Zurab S. Kobiashvili,
General Counsel of the Guarantor, to the effect that:
(i) The Guarantor has the
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations
under this Agreement and the Delayed Delivery Contracts, if
any.
(ii) To the best knowledge and
information of such counsel, the Guarantor 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 to so 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 Guarantor 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
conduct its business as described in the Prospectus, 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 to so
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 Guarantor and its subsidiaries considered
as one 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 Guarantor, directly or
indirectly, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity (except as described in the
Prospectus).
(iv) Each document filed pursuant
to the 1934 Act and incorporated by reference in the
Prospectus (except for financial statements, supporting
schedules and other financial or statistical information 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.
(v) Neither the Guarantor nor any
of its subsidiaries is required to be registered under the
1940 Act.
(vi) 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 or the Guarantor of the
transactions contemplated by this Agreement, any Delayed
Delivery Contract or the Indenture, except such
21
<PAGE> 26
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; and the execution and delivery of this
Agreement, the Delayed Delivery Contract, if applicable, and
the Indenture and the consummation of the transactions
contemplated herein and therein have been duly authorized by
all necessary corporate action of the Company and the
Guarantor 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 Guarantor or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Guarantor 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
Guarantor 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 Guarantor or any applicable law,
administrative regulation or, to the best knowledge and
information of such counsel, administrative or court order
or decree.
(vii) Neither the Guarantor nor any
of its Significant Subsidiaries is in violation of its charter
or by-laws.
(viii) To the best knowledge and
information of such counsel, neither the Guarantor 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 Guarantor and its subsidiaries considered
as one enterprise; and, to the best knowledge and information
of such counsel, the Guarantor 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 Guarantor and its subsidiaries
considered as one enterprise.
(ix) 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 Guarantor or any of its
subsidiaries, which 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 Guarantor 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 this Agreement, the Delayed
22
<PAGE> 27
Delivery Contracts, if applicable, or the Indenture or any
transaction contemplated hereby or thereby.
(x) 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
Guarantor and its subsidiaries considered as one enterprise.
In rendering such opinion, Zurab S. Kobiashvili may
rely (i) as to matters of fact upon the representations of
officers of the Guarantor contained in any certificate
delivered to such counsel and certificates of public
officials, which certificates shall be attached to or
delivered with such opinion; and (ii) as to matters of the
laws of Canada covered thereby, upon the opinions of McInnes
Cooper & Robertson and Bennett Jones furnished pursuant to
this Agreement and (iii) as to matters regarding the
Significant Subsidiaries, (a) item 10 of the opinion of George
J. Morgenthaler, former Senior Vice President and General
Counsel of the Company, dated March 30, 1993, as to each
subsidiary referenced in that opinion, (b) the opinion of Glen
Kenneth Ward as to Apache Energy Limited and (c) the opinion
of Ian Paget Brown as to Apache Qarun Corporation LDC, Apache
Qarun Exploration Company LDC and Apache Khalda Corporation
LDC. 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.
(3) The favorable opinion, dated as of the Closing
Time, of McInnes Cooper & Robertson, Canadian counsel to the Company
and the Guarantor, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly
incorporated and is validly existing as a corporation under
the laws of Nova Scotia, Canada, and has no subsidiaries.
(ii) The Company has corporate
power and authority to own, lease and operate its properties
and conduct its business as described in the Registration
Statement.
(iii) To such counsel's knowledge,
after having made inquiries of the Secretary of the Company,
the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
23
<PAGE> 28
jurisdiction in which such qualification is required to
transact business whether by reason of ownership or leasing
of property or the conduct of business, except where the
failure so to qualify could not reasonably be expected to
have a material adverse effect on the business, operations
or condition, financial or otherwise, or the results of
operations of the Company or its ability to perform its
obligations hereunder or under the Offered Securities or the
Indenture.
(iv) This Agreement and the
applicable Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company.
(v) The Indenture has been duly
authorized, executed and delivered by the Company and
(assuming the Indenture has been duly authorized, executed
and delivered by the Trustee) constitutes a legal, valid and
binding agreement of the Company, enforceable in accordance
with its terms, except as enforceability thereof may be
limited by bankruptcy, insolvency, moratorium and other laws
relating to or affecting creditors' rights against the
Company and by general equity principles.
(vi) The Offered Securities have
been duly authorized and, when the Offered Securities are
executed and authenticated as specified in the Indenture and
delivered against payment pursuant to the Terms Agreement,
as supplemented by this Agreement, or any Delayed Delivery
Contracts, will constitute valid and binding obligations of
the Company, enforceable in accordance with its terms,
except as enforceability thereof may be limited by
bankruptcy, insolvency, moratorium and other laws relating
to or affecting creditors' rights against the Company and by
general equity principles.
(vii) No consent, approval,
authorization, order or decree of any court or governmental
agency or body in Canada is required for the execution and
delivery by the Company of this Agreement, the Indenture or
the Terms Agreement or any Delayed Delivery Contract or for
the consummation by the Company of the transactions
contemplated hereby or thereby. The execution and delivery
of the this Agreement, any Delayed Delivery Contract and the
Indenture and the consummation by the Company of the
transactions contemplated by this Agreement and the Offered
Securities and the incurrence of the obligations and
consummation of the transactions contemplated herein and
therein have been authorized by all necessary corporate
action of the Company and will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease
or other agreement or instrument to which the Company is a
party or by which it may be bound or to which any of the
property or assets of the Company is subject, nor will any
such action result in any violation of the Articles of
Association of the Company or any applicable law,
administrative regulation or administrative or court order
or decree.
24
<PAGE> 29
(viii) No stamp duty or similar tax or duty
is payable under applicable laws or regulations of Canada in
connection with the creation, issuance or delivery of the
Offered Securities, the transfer of any of the Offered
Securities or with respect to the execution and delivery of
this Agreement, the Offered Securities or the Indenture or any
document contemplated hereby or thereby.
(ix) It is not necessary under the laws of
Canada or any authority or agency therein in order to enable
an owner of any interest in the Offered Securities or the
Guarantee to enforce its rights under the Offered Securities
or the Guarantee or to enable any of the Underwriters to
enforce its rights under this Agreement, as the case may be,
that it should, as a result solely of its holding or
underwriting of the Offered Securities, be licensed, qualified
or otherwise entitled to carry on business in Canada or any
authority or agency therein; the Offered Securities, the
Indenture and this Agreement are in proper legal form under
the laws of Canada or authority or agency therein for the
enforcement thereof against the Company therein; and it is not
necessary to ensure the legality, validity, enforceability or
admissibility in evidence of the Offered Securities, the
Indenture or this Agreement in Canada or any authority or
agency therein that any of them be filed or recorded or
enrolled with any court, authority or agency in, or that any
stamp, registration or similar taxes or duties be paid to any
court, authority or agency of Canada.
(x) The choice of the laws of the State of
New York as the governing law of the Offered Securities, the
Indenture and this Agreement is a valid choice of law under
the laws of Canada and courts of Canada should honor this
choice of law.
(xi) Any final judgment for a definite sum
of money rendered by any court of the State of New York or of
the United States located in the State of New York having
jurisdiction under its own domestic laws in respect of any
suit, action or proceeding against the Company based upon any
instruments or agreements entered into for the consummation of
the transactions contemplated in this Agreement, the
Indenture, or the Offered Securities would be declared
enforceable against the Company by the courts of Canada
without reexamination, review of the merits of the cause of
action in respect of which the original judgment was given or
relitigation of the matters adjudicated upon or payment of any
stamp, registration or similar tax or duty, provided that (A)
the judgment is consistent with public policy in Canada and
any relevant political subdivision, (B) the judgment was not
given or obtained by fraud or in a manner contrary to natural
justice, (C) the judgment was not based on a clear mistake of
law or fact, (D) the judgment was not directly or indirectly
for the payment of taxes or other charges of a like nature or
of a fine or other penalty, (E) the judgment is for a definite
sum, and (F) there has been no prior judgment in another court
between the same parties concerning the same issues as are
dealt with in the judgment to be enforced in Canada. Such
counsel is not aware of any reason why the enforcement in
Canada of such a judgment in respect of any of the instruments
or
25
<PAGE> 30
agreements executed for consummation of the transactions
contemplated herein or in the Prospectus would be contrary
to public policy in Canada.
(xii) The Company, and its
obligations under this Agreement, the Offered Securities and
the Indenture, are subject to civil and commercial law and
to suit and neither it nor any of its properties, assets or
revenues have any right of immunity, on the grounds of
sovereignty, from any legal action, suit or proceeding, from
the giving of any relief in any such legal action, suit or
proceeding, from setoff or counterclaim, from the
jurisdiction of any Canadian, New York State or U.S. federal
court, as the case may be, from service of process,
attachment upon or prior to judgment, or attachment in aid
of execution of judgment, or from execution or enforcement
of a judgment, or other legal process or proceeding for the
giving of any relief or for the enforcement of a judgment,
in any such court, with respect to its obligations or
liabilities or any other matter under or arising out of or
in connection with the Offered Securities, this Agreement or
the Indenture; and, to the extent that the Company or any of
its properties, assets or revenues may have or may hereafter
become entitled to any such right of immunity in any such
court in which proceedings may at any time be commenced, the
Company may waive such right to the extent permitted by law
and may consent to such relief and enforcement as provided
in this Agreement and the Indenture.
(xiii) It is not necessary under the
laws of Canada or any authority or agency therein in order
to enable an owner of any interest in the Offered Securities
or the Guarantee to enforce its rights under the Offered
Securities or the Guarantee or to enable any of the
Underwriters to enforce its rights under this Agreement, as
the case may be, that it should, as a result solely of its
holding or underwriting of the Offered Securities, be
licensed, qualified or otherwise entitled to carry on
business in Canada or any authority or agency therein; the
Offered Securities, the Indenture and this Agreement are in
proper legal form under the laws of Canada or authority or
agency therein for the enforcement thereof against the
Company therein; and it is not necessary to ensure the
legality, validity, enforceability or admissibility in
evidence of the Offered Securities, the Indenture or this
Agreement in Canada or any authority or agency therein that
any of them be filed or recorded or enrolled with any court,
authority or agency in, or that any stamp, registration or
similar taxes or duties be paid to any court, authority or
agency of Canada.
(xiv) Except as disclosed in the
Prospectus, no exchange control authorization or any other
authorization, approval, consent or license of any
governmental authority or agency of or in Canada is required
for the payment by the Company of any amounts in United
States dollars pursuant to the terms of the Offered
Securities or to the Underwriters pursuant to this
Agreement.
In giving their opinion, McInnes Cooper & Robertson may rely
as to matters of New York law upon the opinion of Brown & Wood
LLP furnished pursuant to this Agreement, and as to matters of
other United States law upon the opinion of
26
<PAGE> 31
Chamberlain, Hrdlicka, White, Williams & Martin furnished
pursuant to this Agreement.
(4) The favorable opinion, dated as of the Closing
Time, of Bennett Jones, special Canadian Tax Counsel to the Company, in
form and substance satisfactory to counsel to the Underwriters.
(5) The favorable opinion, dated as of the Closing
Time, of Brown & Wood LLP, counsel for the Underwriters, with respect
to the matters set forth in clauses (i) to (ix) and (xi), inclusive,
and (xi) of subsection (b)(1) of this Section.
(6) In giving their opinions required by subsection
(b)(1), (b)(2), (b)(3) and (b)(5), respectively, of this Section 4,
Chamberlain, Hrdlicka, White, Williams & Martin, Zurab S. Kobiashvili,
McInnes Cooper & Robertson, Bennett Jones and Brown & Wood LLP shall
each additionally state that in the course of the preparation of the
Registration Statement and the Prospectus 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 and the Guarantor including their
independent public accountants, during the course of which the contents
of the Registration Statement and the Prospectus and related matters
were discussed. Such counsel need 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 Prospectus and such counsel may, in good
faith, rely as to materiality upon the judgment of officers and
representatives of the Company and the Guarantor. Such counsel shall
additionally state that, however, as a result of such consideration and
participation, nothing has come to such counsel's attention which
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
Guarantor 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), 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
Prospectus or any amendment or supplement thereto, at the time the
Prospectus was 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 engineering reports and other financial or
engineering data contained in the Registration Statement (including the
Prospectus) or those parts of the Registration Statement which
constitute the Form T-1).
(c) At the Closing Time, there shall not have been, since the
date of the Terms Agreement or since the respective dates as
of which information is given in the Registration Statement
and the Prospectus, any material adverse change in the
27
<PAGE> 32
condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the
Company or of the Guarantor and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course
of business, and the Representatives shall have received a
certificate of (A) the Chief Executive Officer, President or a
Vice President and the Treasurer, the Assistant Treasurer, the
principal financial officer or principal accounting officer of
the Company, dated as of the Closing Time, to the effect that
(i) there has been no such material adverse change with
respect to the Company and its subsidiaries, (ii) the
representations and warranties of the Company contained in
Section 1 are true and correct as of the Closing Time and
(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 the date of such
certificate, and (B) the Chief Executive Officer, President or
a Vice President and the Treasurer, the Assistant Treasurer,
the principal financial officer or principal accounting
officer of the Guarantor, dated as of the Closing Time, to the
effect that (i) there has been no such material adverse change
with respect to the Guarantor and its subsidiaries, (ii) the
representations and warranties of the Guarantor consolidated
as one enterprise contained in Section 1 are true and correct
as of the Closing Time, (iii) the Guarantor has performed or
complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the date
of such certificate and (iv) no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued and no proceedings for
that purpose have been initiated or threatened by the
Commission. As used in this Section 4(c), the term
"Prospectus" means the Prospectus in the form first provided
to the applicable Underwriter or Underwriters for use in
confirming sales of the Offered Securities.
(d) (1) On the date of the Terms Agreement, the Underwriters
shall have received a letter from Arthur Andersen LLP, dated as of the
date thereof and in form and substance satisfactory to the
Underwriters, to the effect that:
(i) They are independent
accountants with respect to the Guarantor and its
subsidiaries within the meaning of the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations.
(ii) It is their opinion that the
consolidated financial statements and supporting schedule(s)
included or incorporated by reference in the Registration
Statement and the Prospectus and audited by them and covered
by their opinions therein comply in form in all material
respects with the applicable accounting requirements of the
1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations.
(iii) They have performed specified
procedures, not constituting an audit, including a reading
of the latest available interim financial statements of the
Guarantor and its indicated subsidiaries, a reading of the
minute books of the Guarantor and such subsidiaries since
the end of the most recent fiscal year with respect to which
an audit report has been issued, inquiries of and
28
<PAGE> 33
discussions with certain officials of the Guarantor and such
subsidiaries responsible for financial and accounting
matters with respect to the unaudited consolidated financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus and the latest
available interim unaudited financial statements of the
Guarantor and its subsidiaries, and such other inquiries and
procedures as may be specified in such letter, and on the
basis of such inquiries and procedures, nothing came to
their attention that caused them to believe that: (A) any
material modifications should be made to the unaudited
consolidated financial statements of the Guarantor and its
subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus for them to be in
conformity with generally accepted accounting principles in
the United States, (B) the unaudited consolidated financial
statements of the Guarantor and its subsidiaries included or
incorporated by reference in the Registration Statement and
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
1934 Act and the 1934 Act Regulations or (C) at a specified
date not more than three days prior to the date of such
letter, there was any change in the consolidated capital
stock, any increase in consolidated long-term debt or any
decrease in the consolidated net current assets or
consolidated net assets of the Guarantor and its
subsidiaries, in each case as compared with the amounts
shown on the most recent consolidated balance sheet of the
Guarantor and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus
or, during the period from the date of such balance sheet to
a specified date not more than three days prior to the date
of such letter, there were any decreases, as compared with
the corresponding period in the preceding year, in
consolidated revenues or in the total or per-share amounts
of income before extraordinary items or of net income of the
Guarantor and its subsidiaries, except in all instances for
changes, increases or decreases that the Registration
Statement and the Prospectus disclose have occurred or may
occur or except for such exceptions enumerated in such
letter as shall have been agreed to by the Underwriters and
the Guarantor.
(iv) They have performed specified
procedures, not constituting an audit, set forth in their
letter, based upon which nothing came to their attention
that caused them to believe that the unaudited pro forma
consolidated condensed financial statements, if any,
included or incorporated by reference in the Registration
Statement or the Prospectus do not comply as to form in all
material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X and that the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements.
(v) In addition to the audit
referred to in their opinions and the limited procedures
referred to in clauses (iii) and (iv) above, they have
carried out certain specified procedures, not constituting
an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by
reference in the Registration Statement and the Prospectus
and which are specified by the Underwriters, and have found
such amounts, percentages and financial information to be in
agreement with the relevant
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accounting, financial and other records of the Guarantor and
its subsidiaries identified in such letter.
(2) At the Closing Time, the Underwriters shall have
received from Arthur Andersen LLP, a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (d)(1) of this Section, except
that the specified date referred to shall be a date not more than
three days prior to the Closing Time.
(e) At the Closing Time, counsel for the Underwriters 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 Offered Securities and
the Guarantee as herein contemplated and related proceedings
or in order to evidence the accuracy and completeness of any
of the representations and warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings
taken by the Company and the Guarantor in connection with the
issuance and sale of the Offered Securities as herein and in
the Terms Agreement contemplated shall be satisfactory in form
and substance to the Representatives.
(f) In the event that the Terms Agreement provides for Option
Securities and the Underwriters exercise their option pursuant
to Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the
Company and the Guarantor contained herein and the statements
in any certificates furnished by the Company and the Guarantor
hereunder shall be true and correct as of each Date of
Delivery, and the Underwriters shall have received:
(1) Unless the Date of Delivery is the Closing Time,
a certificate, dated such Date of Delivery, of the Chief Executive
Officer, President or a Vice President and the Treasurer, the Assistant
Treasurer, the principal financial officer or principal accounting
officer of the Guarantor, in their capacities as such, confirming that
the certificate delivered at the Closing Time pursuant to Section 4(c)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Chamberlain, Hrdlicka,
White, Williams & Martin, counsel for the Company and the Guarantor,
Zurab S. Kobiashvili, General Counsel for the Guarantor, McInnes Cooper
& Robertson, Canadian Counsel for the Company and the Guarantor and
Bennett Jones, special Canadian Tax Counsel for the Company and the
Guarantor, in each case, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise substantially to the same effect as the
opinions required by subsections (1), (2), (3) and (4) of Section 4(b)
hereof.
(3) The favorable opinion of Brown & Wood LLP,
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as the opinion
required by subsection (5) to Section 4(b) hereof.
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(4) Unless the Date of Delivery is the Closing Time,
a letter from Arthur Andersen LLP, in form and substance satisfactory
to the Underwriters and dated such Date of Delivery, substantially the
same in scope and substance as the letter furnished to the Underwriters
at the Closing Time pursuant to Section 4(d) hereof, except that the
"specified date" in the letter shall be a date not more than three days
prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company and the Guarantor at any time at
or prior to the Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company and the Guarantor, jointly
and severally, will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) the preparation and filing of the Registration Statement,
including any Rule 462(b) Registration Statement, and all
amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) the preparation, filing and reproduction of this Agreement
and the Delayed Delivery Contract(s), if applicable;
(c) the preparation, printing, issuance and delivery of the
Offered Securities, including any fees and expenses relating
to the eligibility and issuance of Offered Securities in
book-entry form;
(d) the fees and disbursements of the Company's accountants
and counsel, of the Trustee and its counsel, and of any
calculation agent or exchange rate agent;
(e) except as otherwise provided in the Terms Agreement, the
reasonable fees and disbursements of counsel to the
Underwriters;
(f) the qualification of the Offered Securities under state
securities laws in accordance with the provisions of Section
3(k) 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;
(g) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus
and any amendments or supplements thereto, and the delivery by
the Underwriters of the Prospectus and any amendments or
supplements thereto in connection with solicitations or
confirmations of sales of the Offered Securities;
(h) the preparation, reproducing and delivery to the
Underwriters of copies of the Indenture and all amendments,
supplements and modifications thereto;
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<PAGE> 36
(i) any fees charged by nationally recognized statistical
rating organizations for the rating of the Offered Securities;
(j) the fees and expenses incurred in connection with any
listing of Offered Securities on a securities exchange;
(k) the fees and expenses incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(l) any out-of-pocket expenses of the Underwriters incurred
with the approval of the Company;
(m) the cost of providing any CUSIP or other identification
numbers for the Offered Securities; and
(n) any duties, taxes and other charges payable in connection
with the issuance, sale and delivery of the Offered Securities
or the execution, delivery or performance of this Agreement or
the Indenture.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 4 or Section 9, the Company and the Guarantor shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 6. Indemnification. (a) The Company and the Guarantor agree,
jointly and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, 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 any Rule 462(b)
Registration Statement, including information deemed to be part of the
Registration Statement pursuant to Rule 430A(b) of the 1933 Act
Regulations, 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 Prospectus (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, unless such untrue statement or omission or such
alleged untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Company or the
Guarantor by an Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or
the Prospectus (or any amendment or supplement thereto);
(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 investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any
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claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that such
settlement is effected with the written consent of the Company or the
Guarantor, which consent shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and expenses of counsel chosen by such Underwriter),
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
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Guarantor, their respective directors, each
of their officers who signed the Registration Statement, and each person, if
any, who controls the Company or the Guarantor within the meaning of Section 15
of the 1933 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto), any
Rule 462(b) Registration Statement or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Guarantor by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), any Rule 462(b) Registration Statement or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) 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 it from any liability which it may have
otherwise than on account of this indemnity agreement. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
each Underwriter shall have the right to employ counsel to represent jointly the
Underwriters and their respective controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Underwriters against the Company or the Guarantor under this Section if,
in the judgment of any of the Underwriters, it is advisable for such Underwriter
or Underwriters and controlling persons to be jointly represented by separate
counsel, and in that event the fees and expenses of such separate counsel shall
be paid by the Company and the Guarantor, acting jointly and severally. In no
event shall the indemnifying parties be liable for the 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
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general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties (which shall not unreasonably
be withheld), 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 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) For purposes of this Section 6, all references to the Registration
Statement, any preliminary prospectus or the Prospectus, or any amendment or
supplement to any of the foregoing, shall be deemed to include, without
limitation, any electronically transmitted copies thereof, including, without
limitation, any copies filed with the Commission pursuant to EDGAR.
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 and the
Guarantor on the one hand and the Underwriters on the other hand from the
offering of the Offered 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 and the
Guarantor on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantor on the one hand and the Underwriters on the other hand in connection
with the offering of the Offered 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 Offered Securities pursuant to this Agreement (before
deducting expenses) received by the Company and the total commission or
underwriting discount received by each Underwriter, in each case as set forth on
the cover of the Prospectus Supplement, bear to the aggregate initial public
offering price of the Offered Securities sold to or through such Underwriter as
set forth on such cover. The relative fault of the Company and the Guarantor on
the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Guarantor or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
the Guarantor and the Underwriters 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 Underwriters 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 Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
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<PAGE> 39
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 Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Securities
sold to or through such Underwriter were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) 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 Underwriter 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 Underwriter, and each director of the
Company or the Guarantor, each officer of the Company or the Guarantor who
signed the Registration Statement, and each person, if any, who controls the
Company or the Guarantor 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 or the Guarantor, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the principal amount of Offered Securities sold to or through each
Underwriter 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 and the Guarantor
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person of an Underwriter, or by or on behalf of the
Company or the Guarantor, and shall survive each delivery of and payment for any
Offered Securities.
SECTION 9. Termination.
(a) The Representatives may terminate this Agreement immediately upon
notice to the Company, at any time at or prior to the Closing Time if (i) there
has been, since the date of the Terms Agreement or since the respective dates as
of which information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the Company or the
Guarantor and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) there shall have occurred
any material adverse change in the financial markets in Canada or the United
States or any outbreak or escalation of hostilities or other national or
international calamity or crisis or any material adverse change or prospective
material adverse change in exchange controls or taxation in Canada or the United
States the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Offered Securities or enforce
contracts for the sale of the Offered Securities, or (iii) trading in any
securities of the Guarantor has been suspended by the Commission or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking
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moratorium shall have been declared by Canadian, U.S. Federal, New York or Texas
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Offered Securities are denominated or payable, or (iv)
the rating assigned by any nationally recognized statistical rating organization
to any debt securities of the Company or the Guarantor as of the date of the
Terms Agreement shall have been lowered since that date or if any such rating
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any debt securities
of the Company or the Guarantor, as the case may be, or (v) there shall have
come to the attention of the Representatives any facts that would cause them to
reasonably believe that the Prospectus, at the time it was required to be
delivered to a purchaser of the Offered 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. As used in this Section 9, the term
"Prospectus" means the Prospectus in the form first provided to the applicable
Underwriter or Underwriters for use in confirming sales of the related Offered
Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 5. Notwithstanding any such termination, (i)
the covenants set forth in Section 3(b), (d), and (e) with respect to any
offering of Offered Securities shall remain in effect so long as any Underwriter
owns any such Offered Securities purchased from the Company pursuant to this
Agreement and during the period when the Prospectus is required to be delivered
in connection with sales of the Offered Securities and (ii) the covenants set
forth in Section 3(c), (g), (h) and, if applicable, (i), the provisions of
Section 5, the indemnity agreement set forth in Section 6, the contribution
provisions set forth in Section 7 and the provisions of Sections 8, 11, 12 and
13 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters shall fail at
the Closing Time or a Date of Delivery to purchase the Immediate Delivery
Offered Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), then the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, 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, during such 24 hours the
Representatives shall not have completed such arrangements for the purchase of
all of the Defaulted Securities, then:
(a) if the amount of Defaulted Securities does not exceed 10%
of the amount of Immediate Delivery Offered Securities to be
purchased on such date, each of the non-defaulting
Underwriters 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 Underwriters,
or
(b) if the amount of Defaulted Securities exceeds 10% of the
number of Immediate Delivery Offered 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 Underwriters to purchase and of the Company
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to sell the Option Securities to be purchased and sold on such
Date of Delivery shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement 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
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, any of the Representatives, the Company or the Guarantor
shall have the right to postpone the 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 the Prospectus or
in any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing, either delivered by hand, by mail or by telex, telecopier
or telegram, and any such notice shall be effective when received at the address
specified in this Section 11. Notices to the Underwriters shall be directed as
provided in the Terms Agreement. Notices to the Company shall be directed to
Apache Finance Canada Corporation, Suite 1000, 700-9th Ave. S.W., Calgary,
Alberta, Canada T2P 3V4, Attention: Corporate Secretary, with a copy to the
Guarantor. Notices to the Guarantor shall be directed to Apache Corporation,
2000 Post Oak Boulevard, Suite 100, Houston, Texas 77056-4400, Attention: Vice
President and Treasurer, with a copy to: Mr. Ralph K. Miller, Jr., Chamberlain,
Hrdlicka, White, Williams & Martin, 1200 Smith Street, Suite 1400, Houston,
Texas 77002. Any party to this Agreement may from time to time designate another
address to receive notice pursuant to this Agreement by notice duly given in
accordance with the terms of this Section 11.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company and the Guarantor and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 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 parties hereto and their respective successors
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Offered Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law. This Agreement and all the rights and
obligations of the parties hereto shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such State.
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SECTION 14. Consent to Jurisdiction; Appointment of Agent to Accept
Service of Process.
(a) The Company irrevocably consents and agrees, for the
benefit of the Holders from time to time of the Offered
Securities, the Underwriters and the other persons referred to
in Section 12 that any legal action, suit or proceeding
against it with respect to its obligations, liabilities or any
other matter arising out of or in connection with this
Agreement, the Guarantee or any Offered Securities may be
brought in the courts of the State of New York, or the courts
of the United States of America located in The City of New
York and, until all amounts due and to become due in respect
of the Guarantee and all the Offered Securities have been
paid, or until any such legal action, suit or proceeding
commenced prior to such payment has been concluded, hereby
irrevocably consents and submits to the non-exclusive
jurisdiction of each such court in personam, generally and
unconditionally with respect to any action, suit or proceeding
for itself and in respect of its properties, assets and
revenues.
(b) The Company hereby irrevocably designates, appoints, and
empowers CT Corporation, with offices currently at 111 8th
Avenue, New York, New York 10011, as its designee, appointee
and agent to receive, accept and acknowledge for and on its
behalf service of any and all legal process, summons, notices
and documents that may be served in any action, suit or
proceeding brought against the Company in any such United
States federal or state court with respect to its obligations,
liabilities or any other matter arising out of or in
connection with this Agreement, the Guarantee or any Debt
Securities and that may be made on such designee, appointee
and agent in accordance with legal procedures prescribed for
such courts. If for any reason such designee, appointee and
agent hereunder shall cease to be available to act as such,
the Company agrees to designate a new designee, appointee and
agent in The City of New York on the terms and for the
purposes of this Section 14 reasonably satisfactory to each of
the Representatives. The Company further hereby irrevocably
consents and agrees to the service of any and all legal
process, summons, notices and documents in any such action,
suit or proceeding against the Company by serving a copy
thereof upon the relevant agent for service of process
referred to in this Section 14 (whether or not the appointment
of such agent shall for any reason prove to be ineffective or
such agent shall accept or acknowledge such service) or by
mailing copies thereof by registered or certified air mail,
postage prepaid, to the Company at its address specified in or
designated pursuant to this Agreement, with a copy (similarly
mailed) to CT Corporation, 111 8th Avenue, New York, New York
10011. The Company agrees that the failure of any such
designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the
validity of such service or any judgment rendered in any
action or proceeding based thereon. Nothing herein shall in
any way be deemed to limit the ability of the holders of the
Securities, the Underwriters and the other persons referred to
in Section 12 to serve any such legal process, summons,
notices and documents in any other manner permitted by
applicable law or to obtain jurisdiction over the Company or
bring actions, suits or proceedings against the Company in
such other
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jurisdictions, and in such manner, as may be permitted by
applicable law. The Company hereby irrevocably and
unconditionally waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the
laying of venue of any of the aforesaid actions, suits or
proceedings arising out of or in connection with this
Agreement brought in the United States federal courts
located in The City of New York or the courts of the State
of New York located in The City of New York and hereby
further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such
action, suit or proceeding brought in any such court has
been brought in an inconvenient forum.
(c) The provisions of this Section 14 shall survive any
termination of this Agreement, in whole or in part.
SECTION 15. Foreign Taxes. All payments by the Company or the Guarantor
to an Underwriter hereunder, including the Terms Agreement, shall be made free
and clear of, and without deduction or withholding for or on account of, any and
all present and future income, stamp or other taxes, levies, imposts, duties,
charges, fees deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by Canada or any other jurisdiction in which the
Company or the Guarantor has a branch or an office from which payment is made or
deemed to be made, excluding any such tax imposed in respect of amounts due
hereunder (i) by reason of such Underwriter having some connection with Canada
or such other jurisdiction, other than its participation as dealer hereunder, or
(ii) by reason of any income or franchise tax on the overall net income of an
Underwriter imposed by the United States of America or by the State of New York
or any political subdivision of the United States of America or of the State of
New York or by any jurisdiction of which such Underwriter is a resident, or
(iii) if any Underwriter would not be liable or subject to such impost, levy,
collection, withholding or deduction if it were to make a declaration of
nonresidence or other similar claim for exemption but fails to do so, or (iv)
pursuant to any back-up withholding taxes applicable to any payments to a
noncorporate person acting as agent hereunder who fails to furnish an accurate
taxpayer identification number (all such non-excluded taxes, "Taxes"). If the
Company or the Guarantor is prevented by operation of law or otherwise from
paying, causing to be paid or remitting that portion of amounts payable
represented by Taxes withheld or deducted, then amounts payable under the Terms
Agreement or this Agreement shall be increased to such amount as is necessary to
yield and remit to the Underwriter an amount which, after deduction of all Taxes
(including all Taxes payable on such increased payments), equals the amount that
would have been payable if no Taxes applied.
39
<PAGE> 44
SECTION 16. Jurisdictional Restrictions on Sale of Offered Securities.
Each Underwriter severally agrees to use its reasonable efforts to ensure that
(i) no Offered Securities issued by the Company shall be offered or sold
directly or indirectly, in Canada or to a corporation, partnership, trust or
other entity organized under the laws of, or resident in, Canada and (ii) no
documents in relation to an offer of Securities shall be distributed in Canada,
except, in each case, in accordance with applicable law.
SECTION 17. Waiver of Immunities. To the extent that the Company or the
Guarantor or any of their properties, assets or revenues may have or may
hereafter become entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any thereof, from set-off or
counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, from attachment in aid of execution of
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect to
its obligations, liabilities or any other matter under or arising out of or in
connection with this Agreement (including the Terms Agreement), the Indenture
(including the Guarantee) or the Offered Securities, the Company and the
Guarantor hereby irrevocably and unconditionally waive, and agree not to plead
or claim, any such immunity and consent to such relief and enforcement.
SECTION 18. Judgment Currency. The Company and the Guarantor agree to
indemnify each of the Underwriters against any loss incurred by such Underwriter
as a result of any judgment or order being given or made for any amount due
hereunder and such judgment or order being expressed and paid in a currency (the
"Judgment Currency") other than United States dollars and as a result of any
variation as between (i) the rate of exchange at which the United States dollar
amount is converted into the Judgment Currency for the purpose of such judgment
or order, and (ii) the rate of exchange at which such Underwriter is able to
purchase United States dollars with the amount of the Judgment Currency actually
received by such Underwriter. The foregoing indemnity shall constitute a
separate and independent obligation of each of the Company and the Guarantor and
shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "rate of exchange" shall include any premiums and
costs of exchange payable in connection with the purchase of, or conversion
into, the relevant currency.
SECTION 19. Counterparts. Any Terms Agreement may be executed in one
or more counterparts and, if executed in more than one counterpart, the executed
counterparts thereof shall constitute a single instrument.
40
<PAGE> 45
EXHIBIT A
TERMS AGREEMENT
___________ __, 19__
Apache Finance Canada Corporation
Suite 1000
700-9th Ave. S.W.
Calgary, Alberta
Canada T2P 3V4
Attention: [Title]]
Dear Sirs:
The undersigned underwriters (the "Underwriters") understand that
Apache Finance Canada Corporation (the "Company") proposes to issue and sell
$__________ aggregate principal amount of its debt securities unconditionally
guaranteed as to payment of principal, premium, if any, Additional Amounts, if
any, and interest by Apache Corporation, as guarantor (the "Offered
Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Underwriters offer to purchase, severally
and not jointly, the principal amount of Offered Securities set forth below
opposite their respective names at ___% of the principal amount thereof together
with accrued interest thereon from __________, 19__ to the Closing Time:
<TABLE>
<CAPTION>
Principal
Amount of
Underwriter Debt Securities
----------- ---------------
<S> <C>
---------------
Total $
=========
</TABLE>
The Offered Securities shall have the following terms:
Principal amount:
Form and denomination:
Date of maturity:
Interest rate, rates or formula
(or method of calculation
of interest accrual):
Date from which interest accrues:
41
<PAGE> 46
Interest payment dates, if any:
Initial price to public:
Closing Time:
Place of delivery and payment:
Company account for wire transfer of payment:
Redemption provisions, if any:
Lock-up pursuant to Section 3(i) of the
Basic Terms (as defined herein): [yes] [no]
Securities Exchanges, if any, on which application will be made to list the
Offered Securities:
Delayed Delivery Contracts: [authorized] [not authorized]
Delivery date:
Expiration date:
Compensation to Underwriters:
Minimum contract:
Maximum aggregate principal amount:
Additional terms pursuant to Section 16 of the Basic Terms:
Other terms, if any:
All the provisions contained in "Apache Corporation--Debt
Securities--Underwriting Agreement Basic Terms" (the "Basic Terms"), filed as an
exhibit to a current report of Apache Corporation and incorporated by reference
in the Registration Statement relating to the Offered Securities and attached
hereto as Annex A, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
Any notice by the Company or the Guarantor to the Underwriters pursuant
to this Terms Agreement shall be sufficient if given in accordance with Section
11 of the Basic Terms addressed to: [insert name and address of the lead manager
or managers or, if only one underwriter is a party hereto, of such firm] which
shall, for all purposes of this Agreement, be the "Representatives".
Very truly yours,
REPRESENTATIVE[S]
By:
-----------------------------
[Acting for themselves and as
Representative[s] of the
Underwriters]
42
<PAGE> 47
Accepted:
APACHE FINANCE CANADA CORPORATION
By:
------------------------------------
Title:
APACHE CORPORATION
By:
------------------------------------
Title:
43
<PAGE> 48
ANNEX A
[Basic Terms]
44
<PAGE> 49
EXHIBIT B
APACHE FINANCE CANADA CORPORATION
[Title of Offered Securities]
Guaranteed by
APACHE CORPORATION
DELAYED DELIVERY CONTRACT
Apache Finance Canada Corporation
Suite 1000
700-9th Ave. S.W.
Calgary, Alberta
Canada T2P 3V4
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Apache Finance Canada
Corporation (the "Company"), and the Company agrees to sell to the undersigned
on ____________, 19__ (the "Delivery Date"), $_____________ principal amount of
the Company's __% Notes due 20__ (the "Offered Securities"), offered by the
Company's Prospectus dated _________ __, 19__, as supplemented by its Prospectus
Supplement dated __________ __, 19__, receipt of which is hereby acknowledged,
at a purchase price of _____% of the principal amount thereof, plus accrued
interest from __________, ______, to the Delivery Date, and on the further terms
and conditions set forth in this contract.
Payment for the securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by wire transfer
in immediately available funds on the Delivery Date, upon delivery to the
undersigned of the Offered Securities to be purchased by the undersigned in
definitive or global form and in such denominations and registered in such names
as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than three full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Offered Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of Offered Securities to be made by the
undersigned shall not on the Delivery Date be prohibited
45
<PAGE> 50
under the laws of the jurisdiction to which the undersigned is subject and (2)
the Company, on or before ___________, ____, shall have sold to the Underwriters
of the Offered Securities (the "Underwriters") such principal amount of the
Offered Securities as is to be sold to them pursuant to the Terms Agreement
dated ____________, ____ between the Company and the Underwriters. The
obligation of the undersigned to take delivery of and make payment for Offered
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Offered Securities pursuant to other contracts
similar to this contract. The undersigned represents and warrants to the
Underwriters that its investment in the Offered Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Offered Securities has
been taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Offered Securities in excess of
$__________ and that the acceptance of any Delayed Delivery Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first come first-served basis. If this contract is acceptable to the Company and
the Guarantor, it is requested that the Company sign the form of acceptance on a
copy hereof and mail or deliver a signed copy hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company, the Guarantor and the undersigned when such copy is so mailed or
delivered.
46
<PAGE> 51
This Agreement shall be governed by the laws of the State New York
applicable to agreements made and performed in said State.
Yours very truly,
-------------------------------
(Name of Purchaser)
By
-----------------------------
(Title)
-----------------------------
-----------------------------
(Address)
Accepted as of the date
first above written.
Apache Finance Canada Corporation
By:
------------------------------
Apache Corporation
By:
------------------------------
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date shall be discussed is as
follows: (Please print.)
<TABLE>
<CAPTION>
Telephone No.
Name (Including Area Code)
- ---- ---------------------
<S> <C>
</TABLE>
47
<PAGE> 1
Exhibit 4.1
THIS NOTE IS A GLOBAL NOTE. UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY ") TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED PRINCIPAL AMOUNT
No: 1 $ 300,000,000
CUSIP: 03746AAA8 APACHE FINANCE CANADA CORPORATION
7.75% NOTES DUE DECEMBER 15, 2029
APACHE FINANCE CANADA CORPORATION, an unlimited liability company
organized under the laws of Nova Scotia, Canada (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received hereby promises to pay to Cede & Co., or registered assigns,
the principal sum of Three Hundred Million Dollars on December 15, 2029 ("Stated
Maturity") and to pay interest thereon from December 13, 1999 or from the most
recent date in respect of which interest has been paid or duly provided for, on
June 15 and December 15 of each year (each, an "Interest Payment Date"),
commencing June 15, 2000, and at Stated Maturity or upon such other date on
which the principal of this Note becomes due and payable, whether by declaration
of acceleration, notice of redemption or otherwise, and including any Redemption
Date or Change in Control Purchase Date (each such date, "Maturity"), at the
rate of 7.75% per annum, until the principal hereof is paid or duly made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture
referred to below, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered as of the close of business on June 1 or
December 1, as the case may be (whether or not a Business Day), next preceding
such Interest Payment Date (each such date, a "Regular Record Date"). Any such
interest which is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date shall forthwith cease to be payable to the Holder of
this Note on such Regular Record Date, and shall be paid to the Person in whose
name this Note (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this Note not less than 10 days prior to such Special Record Date, or may be
paid in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Any interest paid on this Note shall be increased to the extent necessary to pay
Additional Amounts as set forth in this Note.
Payment of the principal of, and interest on, this Note will be made at
the office or agency maintained for that purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at the option of
the Company by check mailed to the Person in whose name this Note is registered
at the close of business on the related record date; provided further, that,
notwithstanding anything else contained herein, if this Note is a Global
Security and is held in book-entry form through the facilities of the
Depository, payments on this Note will be made to the Depository or its nominee
in accordance with the arrangements then in effect between the Trustee and the
Depository.
Reference is hereby made to the further provisions of this Note set
forth on the succeeding pages hereof, which further provisions shall for all
purposes have the same effect as if set forth herein.
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein, referred
to in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
By:
---------------------------------
Authorized Officer
-1-
<PAGE> 2
APACHE FINANCE CANADA CORPORATION
7.75% NOTES DUE DECEMBER 15, 2029
This Note is one of a duly authorized issue of Securities of the
Company issued under an Indenture, dated as of November 23, 1999 (the
"Indenture"), among the Company, Apache Corporation (the "Guarantor") and The
Chase Manhattan Bank (the "Trustee", which term includes any successor trustee
under the Indenture), designated as the 7.75% Notes due December 15, 2029 (the
"Notes"). Reference is made to the Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Guarantor, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. All terms used
in this Note and the Guarantee set forth below which are not defined herein and
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
The Indenture provides for the defeasance of the Notes, the Guarantees
and certain covenants in certain circumstances.
This Note is unsecured as to payment of principal and interest, and
ranks pari passu with all other unsecured unsubordinated indebtedness of the
Company.
Interest payments on this Note will include interest accrued to but
excluding the applicable Interest Payment Date or Maturity hereof, as the case
may be. Interest payments for this Note shall be computed and paid on the basis
of a 360-day year of twelve 30-day months.
In the case where the applicable Interest Payment Date or Maturity with
respect hereto, as the case may be, does not fall on a Business Day, payment of
principal or interest otherwise payable on such day need not be made on such
day, but may be made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date or at Maturity and, unless the
Company or the Guarantor default on such payment, no interest shall accrue with
respect to such payment for the period from and after the Interest Payment Date
or such Maturity, as the case may be, to the date of payment.
The Notes will not be subject to any sinking fund and, except as
provided in the Indenture or herein, will not be redeemable or repayable prior
to their Stated Maturity.
If any Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As set forth in, and subject to the provisions of, the Indenture, no
Holder of any Note will have any right to institute any proceeding with respect
to the Indenture, the Notes or the Guarantees, or for any remedy thereunder,
unless (i) such Holder shall have previously given to the Trustee written notice
of a continuing Event of Default with respect to the Notes, (ii) the Holders of
not less than 25% in principal amount of the Outstanding Notes shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as Trustee, (iii) the Trustee shall have failed to institute
such proceeding within 60 days after receipt of such written notice, request and
offer of indemnity and (iv) the Trustee shall not have received from the Holders
of a majority in principal amount of the Outstanding Notes a direction
inconsistent with such request within such 60 day period; provided, however,
that such limitations do not apply to a suit instituted by the Holder hereof for
the enforcement of payment of the principal and premium, if any, of or any
interest on this Note on or after the respective due dates expressed herein or
to require the purchase of this Note by the Company upon the occurrence of a
Change in Control in accordance with the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities of
each series thereunder to be affected under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than 66-2/3%
in aggregate principal amount of such Securities then Outstanding of each series
to be affected. The Indenture also contains provisions permitting the Holders of
not less than a majority in principal amount of the Securities of each series
thereunder at the time Outstanding, on behalf of the Holders of all Securities
of such series, to waive compliance by the Company with certain restrictive
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of any
Note issued upon the registration of transfer hereof or in exchange for or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note. Notwithstanding the foregoing, no consent of Holders shall be required to
advance the Stated Maturity of the Notes as provided herein.
No reference to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any interest on this Note at the
times, places and rate, and in the coin or currency, herein prescribed.
-2-
<PAGE> 3
The Notes are issuable only in fully registered form in denominations
of $1,000 and integral multiples in excess thereof. As provided in the Indenture
and subject to certain limitations therein set forth, this Note is exchangeable
for a like aggregate principal amount of Notes of this series and of like tenor
of any authorized denomination, as requested by the Holder surrendering the
same. As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company in any place where the principal of and any interest on this Note
are payable or at such other offices or agencies as the Company may designate,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to, the Company and the Security Registrar or any transfer agent
duly executed by the registered owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of this series and of like tenor,
of authorized denominations and for the same aggregate principal amount and
Stated Maturity will be issued to the designated transferee or transferees.
If as a result of any change in or any amendment to the laws,
regulations or published tax rulings of the "applicable taxing jurisdiction" (as
hereinafter defined) affecting taxation, or any change in the official
administration, application or interpretation of such laws, regulations or
published tax rulings either generally or in relation to the Notes, which change
or amendment becomes effective on or after the original issue date of the Notes
or which change in official administration, application or interpretation shall
not have been available to the public prior to such issue date, it is determined
by the Company that (a) the Company would be required to pay any Additional
Amounts pursuant to the Indenture or the terms of the Notes in respect of
interest on the next succeeding Interest Payment Date and (b) such obligation
cannot be avoided by the Company or the Guarantor taking reasonable measures
available to it, the Company may, at its option, redeem all (but not less than
all) of the Notes upon not less than 30 nor more than 60 days= written notice as
provided in the Indenture, at a Redemption Price equal to 100% of the principal
amount thereof plus accrued interest to the date fixed for redemption; provided,
however, that (a) no such notice of redemption may be given earlier than 60 days
prior to the earliest date on which the Company would be obligated to pay such
Additional Amounts were a payment then due in respect of the Notes, and (b) at
the time any such redemption notice is given, such obligation to pay such
Additional Amounts must remain in effect. If (a) the Company shall have on any
date (the "Succession Date") consolidated with or merged into, or conveyed or
transferred or leased its properties and assets as an entirety or substantially
as an entirety to, any Successor which is organized under the laws of any
jurisdiction other than the United States of America, any State thereof or the
District of Columbia or the jurisdiction in which the Company is organized, (b)
as result of any change in or any amendment to the laws, regulations or
published tax rulings of such jurisdiction, or of any political subdivision or
taxing authority thereof or therein, affecting taxation, or any change in the
official administration, application or interpretation of such laws, regulations
or published tax rulings either generally or in relation to the Notes, which
change or amendment becomes effective on or after the Succession Date or which
change in official administration, application or interpretation shall not have
been available to the public prior to such Succession Date and is notified to
the Company, such Successor would be required to pay any Successor Additional
Amounts pursuant to the Indenture or the terms of the Notes in respect of
interest on any Notes on the next succeeding Interest Payment Date and (c) such
obligation cannot be avoided by the Company or such Successor taking reasonable
measures available to it, the Company or such Successor may at its option redeem
all (but not less than all) of the Notes, upon not less than 30 nor more than 60
days= written notice as provided in the Indenture, at a Redemption Price equal
to 100% of the principal amount thereof plus accrued interest to the date fixed
for redemption; provided however, that (a) no such notice of redemption may be
given earlier than 60 days prior to the earliest date on which a Successor would
be obligated to pay such Successor Additional Amounts were a payment then due in
respect of the Notes, and (b) at the time any such redemption notice is given,
such obligation to pay such Successor Additional Amounts must remain in effect.
Holders of Notes to be redeemed will receive notice thereof by
first-class mail at least 30 and not more than 60 days prior to the Redemption
Date, as provided in the Indenture.
Unless the Company defaults in payment of the redemption price, on and
after the Redemption Date interest will cease to accrue on the Notes or portions
thereof called for redemption.
All payments of, or in respect of, principal of and interest on this
Note shall be made without withholding or deduction for, or on account of, any
present or future taxes, duties, levies, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of the jurisdiction (or any
political subdivision or taxing authority thereof or therein) in which the
Company is incorporated or resident (or deemed for tax purposes to be resident)
(the "applicable taxing jurisdiction"), unless such taxes, duties, levies,
assessments or governmental charges are required by the applicable taxing
jurisdiction or any such subdivision or authority to be withheld or deducted. In
that event, the Company will pay by way of additional interest such additional
amounts of, or in respect of, principal of and interest ("Additional Amounts")
as will result (after deduction of such taxes, duties, levies, assessments or
governmental charges and any additional taxes, duties, levies, assessments or
governmental charges payable in respect of such Additional Amounts) in the
payment to the Holder of this Note of the amounts which would have been payable
in respect of this Note had no such withholding or deduction been required,
except that no Additional Amounts shall be so payable for or on account of:
-3-
<PAGE> 4
(a) any tax, duty, levy, assessment or other governmental charge which would not
have been imposed but for the fact that such Holder:
(i) was a resident, domiciliary or national of, or engaged in
business or maintained a permanent establishment or was physically
present in, the applicable taxing jurisdiction or otherwise had some
connection with the applicable taxing jurisdiction other than the mere
ownership of this Note;
(ii) presented (if presentation is required) this Note for payment in
the applicable taxing jurisdiction, unless this Note could not have
been presented for payment elsewhere;
(iii) presented (if presentation is required) this Note, as the case
may be, more than 30 days after the date on which the payment in
respect of this Note first became due and payable or was provided for,
whichever is later, except to the extent that the Holder would have
been entitled to such Additional Amounts; if it had presented such Note
for payment on any days within such period of 30 days;
(iv) is not dealing with the Company, directly or indirectly, on an
arm's-length basis; or
(v) entered into or participated in a scheme to avoid Canadian
withholding tax, being a scheme which the Company was neither a party
to nor participated in;
(b) any estate, inheritance, gift, sale, transfer, personal property or similar
tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable otherwise
than by withholding or deduction from payments of, or in respect of, principal
of or interest on this Note;
(d) any tax, assessment or other governmental charge that is imposed or withheld
by reason of the failure to comply by the Holder or the beneficial owner of this
Note with a request of the Company addressed to the Holder (i) to provide
information concerning the nationality, residence or identity of the Holder or
such beneficial owner or (ii) to make any declaration or other similar claim or
satisfy any information or reporting requirement, which, in the case of (i) or
(ii), is required or imposed by a statute, treaty, regulation or administrative
practice of the applicable taxing jurisdiction as a precondition to exemption
from all or part of such tax, assessment or other governmental charge; or
(e) any combination of items (a), (b), (c) and (d);
nor shall Additional Amounts be paid with respect to any payment of the
principal of or interest on this Note to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent such payment would be required by the laws of the applicable taxing
jurisdiction to be included in the income for tax purposes of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to such Additional Amounts had
it been the Holder of this Note.
The payment of principal of, or interest on, or in respect of, this
Note shall be deemed to include the payment of Additional Amounts provided for
in the Indenture or herein to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to the
Indenture or this Note.
Subject to the terms and conditions of the Indenture, if any Change in
Control occurs prior to the Stated Maturity of the Notes, the Company shall, at
the option of the Holders thereof, purchase all Notes for which a Change in
Control Purchase Notice shall have been delivered as provided in the Indenture
and not withdrawn, by a date which shall be 35 Business Days after the
occurrence of such Change in Control, at a Change in Control Purchase Price
equal to 100% of the principal amount thereof plus accrued interest to the
Change in Control Purchase Date, which Change in Control Purchase Price shall be
paid in cash.
Holders have the right to withdraw any Change in Control Purchase
Notice by delivering to the paying agent a written notice of withdrawal in
accordance with the provisions of the Indenture.
If cash sufficient to pay the Change in Control Purchase Price of all
Notes or portions thereof to be purchased on the Change in Control Purchase Date
is deposited with the Trustee on the Change in Control Purchase Date, interest
shall cease to accrue on such Notes (or portions thereof) and on and after the
Change in Control Purchase Date the Holders thereof shall have no other rights
as such (other than the right to receive the Change in Control Purchase Price
upon surrender of such Notes).
Subject to the terms of the Indenture, prior to due presentment of this
Note for registration of transfer, the Company, the Guarantor, the Trustee and
any agent of the Company, the Guarantor or the Trustee may treat the Person in
whose name this
-4-
<PAGE> 5
Note is registered as the owner hereof for all purposes, whether or not this
Note is overdue, and neither the Company, the Guarantor, the Trustee nor any
such agent shall be affected by notice to the contrary.
No service charge shall be made for any registration of transfer or
exchange of this Note, but, subject to certain limitations set forth in the
Indenture, the Company may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
This Note shall not be valid or become obligatory for any purpose until
the Trustee's Certificate of Authentication hereon shall have been executed by
the Trustee.
IN WITNESS WHEREOF, APACHE FINANCE CANADA CORPORATION has caused this
instrument to be duly executed under its corporate seal.
APACHE FINANCE CANADA CORPORATION
[SEAL] BY
------------------------------
Name: Roger B. Plank
Title: Director
Attest:
By
----------------------------------------
Name: Matthew W. Dundrea
Title: Vice President and Treasurer
Date: December 13, 1999
-5-
<PAGE> 6
GUARANTEE
For value received, Apache Corporation, a corporation organized under the
laws of the State of Delaware (herein called the "Guarantor," which term
includes any successor corporation under the Indenture referred to in the
Security upon which this Guarantee is endorsed), hereby irrevocably and
unconditionally guarantees to the Holder of the Security upon which this
Guarantee is endorsed and to the Trustee on behalf of the Trustee and such
Holder the due and punctual payment of the principal of and interest on, and any
Additional Amounts with respect to, such Security, and any other amount due and
payable pursuant to the terms of such Security or Indenture or payments referred
to therein, when and as the same shall become due and payable, whether at the
Stated Maturity, by declaration of acceleration, call for redemption or
repurchase or otherwise, according to the terms of such Security and of the
Indenture referred to therein. In case of the failure of Apache Finance Canada
Corporation, an unlimited liability company organized under the laws of Nova
Scotia, Canada (herein called the "Company," which term includes any successor
corporation under such Indenture), punctually to make any such payment of
principal or interest on, or any Additional Amounts with respect to such
Security, the Guarantor hereby agrees to cause any such payment to be made
punctually when and as the same shall become due and payable, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
repurchase or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as if
it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or such Indenture, any failure
to enforce the provisions of such Security or such Indenture, or any waiver,
modification or indulgence granted to the Company with respect thereto, by the
Holder of such Security or the Trustee or any other circumstance which may
otherwise constitute a legal or equitable discharge of a surety or guarantor.
The Guarantor hereby waives the benefits of division and discussion, diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to such
Security or the indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged except by strict and
complete performance of the obligations contained in such Security and this
Guarantee. The Guarantor hereby agrees that, in the event of a default in
payment of principal or interest on, or any Additional Amounts with respect to
such Security, or default in any payment referred to therein, legal proceedings
may be instituted by the Trustee on behalf of, or by, the Holder of such
Security, on the terms and conditions set forth in such Indenture, directly
against the Guarantor to enforce this Guarantee without first proceeding against
the Company.
The Guarantor shall be subrogated to all rights of the Holder of such
Security and the Trustee against the Company in respect of any amounts paid to
such Holder by the Guarantor on account of such Security pursuant to the
provisions of this Guarantee or such Indenture; provided, however, that the
Guarantor shall not be entitled to enforce, or to receive any payments arising
out of or based upon, such right of subrogation until the principal of, and
interest on, and any Additional Amounts required with respect to Securities
issued under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this Guarantee
or of such Indenture shall alter or impair the guarantee of the Guarantor, which
is absolute and unconditional, of the due and punctual payment of principal and
interest on and any Additional Amounts with respect to the Security upon which
this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication of the Security upon which this Guarantee is
endorsed shall have been manually executed by or on behalf of the Trustee under
such Indenture.
All terms used in this Guarantee which are defined in such Indenture shall
have the meanings assigned to them in such Indenture.
This Guarantee shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be governed by and construed in
accordance with the laws of the State of New York.
This Guarantee is an unsecured obligation of the Guarantor, and ranks pari
passu with all other unsubordinated indebtedness of the Guarantor.
-6-
<PAGE> 7
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed under its corporate seal and dated the date on the face hereof.
APACHE CORPORATION
[SEAL] BY
------------------------------------
Name: Matthew W. Dundrea
Title: Vice President and Treasurer
Attest:
BY
---------------------------------
Name: Cheri L. Peper
Title: Corporate Secretary
Date: December 13, 1999
-7-
<PAGE> 8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
Please insert Social Security or other identifying number of assignee
- --------------------------------------------------------------------------------
(please print or type name and address of assignee)
the within Security and all rights thereunder and does hereby irrevocably
constitute and appoint the aforesaid assignee attorney to transfer the within
Security on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
------------------------------------ --------------------------
In the presence of:
- --------------------------------------------------------------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Security in every particular, without
alteration or enlargement or any change whatever. When assignment is made by a
guardian, trustee, executor or administrator, an officer of a corporation, or
anyone in a representative capacity, proof of his or her authority to act must
accompany the Security. The signature must be guaranteed by an Institution which
is a member of one of the following recognized signature Guarantee Programs: (i)
The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) in such other guarantee program acceptable to the Trustee.
-8-
<PAGE> 1
Exhibit 10.1
APACHE CORPORATION
1996 PERFORMANCE STOCK OPTION PLAN
AS AMENDED AND RESTATED SEPTEMBER 23, 1999,
EFFECTIVE AS OF OCTOBER 31, 1996
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
Section 1 - Introduction...........................................................1
1.1 Establishment....................................................1
1.2 Purposes.........................................................1
1.3 Effective Date...................................................1
Section 2 - Definitions..........................................................1-3
2.1 Definitions....................................................1-3
2.2 Headings; Gender and Number......................................3
Section 3 - Plan Administration..................................................3-4
Section 4 - Stock Subject to the Plan............................................4-6
4.1 Number of Shares.................................................4
4.2 Other Shares of Stock............................................4
4.3 Adjustments for Stock Split, Stock Dividend, etc.................5
4.4 Dividend Payable in Stock of Another Corporation.................5
4.5 Other Changes in Stock...........................................5
4.6 Rights to Subscribe............................................5-6
4.7 General Adjustment Rules.........................................6
4.8 Determination by the Committee, etc..............................6
Section 5 - Reorganization or Liquidation........................................6-7
Section 6 - Participation..........................................................7
Section 7 - Options.............................................................7-12
7.1 Grants...........................................................7
7.2 Option Agreements..............................................7-8
7.3 Common Terms..................................................8-12
7.4 Tax Withholding.................................................12
7.5 Subsequent Option Agreements....................................12
7.6 Stockholder Privileges..........................................12
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 8 - Change in Control.....................................................13
8.1 In General......................................................13
8.2 Limitation on Payments..........................................13
8.3 Definition......................................................13
Section 9 - Rights of Employees; Participants.....................................14
9.1 Employment......................................................14
9.2 Nontransferability..............................................14
Section 10 - General Restrictions..............................................14-15
10.1 Investment Representations......................................14
10.2 Compliance with Securities Laws.................................15
Section 11 - Other Employee Benefits..............................................15
Section 12 - Plan Amendment, Modification and Termination.........................15
Section 13 - Withholding..........................................................16
13.1 Withholding Requirement.........................................16
13.2 Withholding with Stock..........................................16
Section 14 - Requirements of Law...............................................16-17
14.1 Requirements of Law.............................................16
14.2 Federal Securities Laws Requirements.........................16-17
14.3 Governing Law...................................................17
Section 15 - Duration of the Plan.................................................17
</TABLE>
ii
<PAGE> 4
APACHE CORPORATION
1996 PERFORMANCE STOCK OPTION PLAN
SECTION 1
INTRODUCTION
1.1 Establishment. Apache Corporation, a Delaware corporation (hereinafter
referred to, together with its Affiliated Corporations (as defined in Section
2.1 hereof) as the "Company" except where the context otherwise requires),
hereby establishes the Apache Corporation 1996 Performance Stock Option Plan
(the "Plan") for certain employees of the Company.
1.2 Purposes. The primary purpose of this Plan is to provide the
participating employees of the Company with added incentives to focus their
energies on achieving significant stock price appreciation for the balance of
the decade by providing a meaningful stock based performance plan which provides
accelerated vesting incentives to attain the prices of $50 and $60 per share of
Apache Corporation common stock, respectively, before January 1, 2000.
Additional purposes of this Plan include the retention of existing valued
employees and as an additional inducement in the recruitment of talented
personnel in a competitive environment.
1.3 Effective Date. The Effective Date of the Plan (the "Effective Date")
shall be October 31, 1996.
SECTION 2
DEFINITIONS
2.1 Definitions. The following terms shall have the meanings set forth
below:
"Affiliated Corporation" means any corporation or other entity
(including but not limited to a partnership) which is affiliated with Apache
Corporation through stock ownership or otherwise and is treated as a common
employer under the provisions of Sections 414(b) and (c) or any successor
section(s) of the Internal Revenue Code.
1
<PAGE> 5
"Base Salary" means, with regard to any Participant, such Participant's
base compensation as an employee of the Company at the date of grant of an
Option, without regard to any bonus, pension, profit sharing, stock option, life
insurance or salary continuation plan which the Participant either receives or
is otherwise entitled to have paid on his behalf.
"Board" means the Board of Directors of the Company.
"Committee" means the Stock Option Plan Committee of the Board.
"Eligible Employees" means any full-time employee of the Company or any
division thereof who is not a participant under the Apache Corporation 1996
Share Price Appreciation Plan.
"Exercise Date" has the meaning set forth in Section 7.3(i).
Fair Market Value" means the closing price of the Stock as reported on
The New York Stock Exchange, Inc. Composite Transactions Reporting System for a
particular date. If there are no Stock transactions on such date, the Fair
Market Value shall be determined as of the immediately preceding date on which
there were Stock transactions.
"Final Amount" has the meaning set forth in Section 7.2.
"Final Price Threshold Date" means the last of any 10 trading days
(which need not be consecutive) during any period of 30 consecutive trading days
occurring prior to January 1, 2000, but not thereafter, on each of which 10 days
the closing price of the Stock as reported on The New York Stock Exchange, Inc.
Composite Transactions Reporting System has equaled or exceeded $60 per share.
If the above trading criteria is met more than once, the first occurrence shall
be deemed to be the Final Price Threshold Date.
"First Category" has the meaning set forth in Section 7.2.
"Initial Amount" has the meaning set forth in Section 7.2.
"Initial Price Threshold Date" means the last of any 10 trading days
(which need not be consecutive) during any period of 30 consecutive trading days
occurring prior to January 1, 2000, but not thereafter, on each of which 10 days
the closing price of the Stock as reported on The New York Stock Exchange, Inc.
Composite Transactions Reporting System has equaled or exceeded $50 per share.
If the above trading criteria is
2
<PAGE> 6
met more than once, the first occurrence shall be deemed to be the Initial Price
Threshold Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as it
may be amended from time to time.
"Option" means a right to purchase Stock at a stated price for a
specified period of time. All Options granted under the Plan shall be Options
which are not "incentive stock options" as described in Section 422 or any
successor section(s) of the Internal Revenue Code.
"Option Agreement" has the meaning set forth in Section 7.1.
"Option Period" has the meaning set forth in Section 7.3(c).
"Option Price" means the price at which shares of Stock subject to an
Option may be purchased, determined in accordance with Section 7.3(b) hereof.
"Participant" means an Eligible Employee designated by the Committee
from time to time during the term of the Plan to receive an Option under the
Plan.
"Price Threshold Date" means either the Initial Price Threshold Date or
the Final Price Threshold Date, as the context may require.
"Second Category" has the meaning set forth in Section 7.2.
"Stock" means the $1.25 par value Common Stock of the Company.
2.2 Headings; Gender and Number. The headings contained in the Plan are for
reference purposes only and shall not affect in any way the meaning or
interpretation of the Plan. Except when otherwise indicated by the context, the
masculine gender shall also include the feminine gender, and the definition of
any term herein in the singular shall also include the plural.
SECTION 3
PLAN ADMINISTRATION
The Plan shall be administered by the Committee. In accordance with the
provisions of the Plan, the Committee shall, in its sole discretion, select the
Participants from among
3
<PAGE> 7
the Eligible Employees, determine the Options to be granted pursuant to the
Plan, the time at which such Options are to be granted, and establish such other
terms and requirements as the Committee may deem necessary or desirable and
consistent with the terms of the Plan. The Committee shall determine the form or
forms of the Option Agreements with Participants which shall evidence the
particular provisions, terms, conditions, rights and duties of the Company and
the Participants with respect to Options granted pursuant to the Plan, which
provisions need not be identical except as may be provided herein. The Committee
may from time to time adopt such rules and regulations for carrying out the
purposes of the Plan as it may deem proper and in the best interests of the
Company. The Committee may correct any defect, supply any omission or reconcile
any inconsistency in the Plan, or in any agreement entered into hereunder, in
the manner and to the extent it shall deem expedient and it shall be the sole
and final judge of such expediency. No member of the Committee shall be liable
for any action or determination made in good faith. The determinations,
interpretations and other actions of the Committee pursuant to the provisions of
the Plan shall be binding and conclusive for all purposes and on all persons.
SECTION 4
STOCK SUBJECT TO THE PLAN
4.1 Number of Shares. Subject to Section 7.1 and Section 4.3, one million three
hundred thousand (1,300,000) shares of Stock are authorized for issuance under
the Plan in accordance with its terms and subject to such restrictions or other
provisions as the Committee may from time to time deem necessary. This
authorization may be increased from time to time by approval of the Board and
the stockholders of the Company if, in the opinion of counsel for the Company,
such stockholder approval is required. Shares of Stock which may be issued
pursuant to the terms of the Options granted hereunder shall be applied to
reduce the maximum number of shares of Stock remaining available for use under
the Plan. The Company shall at all times during the term of the Plan and while
any Options are outstanding retain as authorized and unissued Stock and/or Stock
in the Company's treasury, at least the number of shares from time to time
required under the provisions of the Plan, or otherwise assure itself of its
ability to perform its obligations hereunder.
4.2 Other Shares of Stock. Any shares of Stock that are subject to an Option
which expires, is forfeited, is canceled, or for any reason is terminated, and
any shares of Stock that for any other reason are not issued to a Participant or
are forfeited shall automatically become available for use under the Plan.
4
<PAGE> 8
4.3 Adjustments for Stock Split, Stock Dividend, etc. If the Company shall at
any time increase or decrease the number of its outstanding shares of Stock or
change in any way the rights and privileges of such shares by means of the
payment of a Stock dividend or any other distribution upon such shares payable
in Stock, or through a Stock split, subdivision, consolidation, combination,
reclassification or recapitalization involving the Stock, then in relation to
the Stock that is affected by one or more of the above events, the numbers,
rights and privileges of the following shall be increased, decreased or changed
in like manner as if they had been issued and outstanding, fully paid and
nonassessable at the time of such occurrence: (i) the shares of Stock as to
which Options may be granted under the Plan; and (ii) the shares of the Stock
then included in each outstanding Option granted hereunder.
4.4 Dividend Payable in Stock of Another Corporation. If the Company shall at
any time pay or make any dividend or other distribution upon the Stock payable
in securities or other property (except money or Stock), a proportionate part of
such securities or other property shall be set aside and delivered to any
Participant then holding an Option for the particular type of Stock for which
the dividend or other distribution was made, upon exercise thereof. Prior to the
time that any such securities or other property are delivered to a Participant
in accordance with the foregoing, the Company shall be the owner of such
securities or other property, and in all other respects shall be treated as the
owner. If securities or other property which have been set aside by the Company
in accordance with this Section are not delivered to a Participant because an
Option is not exercised, then such securities or other property shall remain the
property of the Company and shall be dealt with by the Company as it shall
determine in its sole discretion.
4.5 Other Changes in Stock. In the event there shall be any change, other than
as specified in Sections 4.3 and 4.4 hereof, in the number or kind of
outstanding shares of Stock or of any stock or other securities into which the
Stock shall be changed or for which it shall have been exchanged, and if the
Committee shall in its discretion determine that such change equitably requires
an adjustment in the number or kind of shares subject to outstanding Options or
which have been reserved for issuance pursuant to the Plan but are not then
subject to an Option, then such adjustments shall be made by the Committee and
shall be effective for all purposes of the Plan and on each outstanding Option
that involves that particular type of stock for which a change was effected.
4.6 Rights to Subscribe. If the Company shall at any time grant to the holders
of its Stock rights to subscribe pro rata for additional shares thereof or for
any other securities of the Company or of any other corporation, there shall be
reserved with respect to the shares then under Option to any Participant of the
particular class of Stock involved the Stock or other securities which the
Participant would have been entitled to subscribe for if immediately prior to
such grant the Participant had exercised his entire Option. If, upon
5
<PAGE> 9
exercise of any such Option, the Participant subscribes for the additional
shares or other securities, the Option Price shall be increased by the amount of
the price that is payable by the Participant for such additional shares or other
securities.
4.7 General Adjustment Rules. No adjustment or substitution provided for in this
Section 4 shall require the Company to sell a fractional share of Stock under
any Option, or otherwise issue a fractional share of Stock, and the total
substitution or adjustment with respect to each Option shall be limited by
deleting any fractional share. In the case of any such substitution or
adjustment, the total Option Price for the shares of Stock then subject to the
Option shall remain unchanged but the Option Price per share under each such
Option shall be equitably adjusted by the Committee to reflect the greater or
lesser number of shares of Stock or other securities into which the Stock
subject to the Option may have been changed.
4.8 Determination by the Committee, etc. Adjustments under this Section 4 shall
be made by the Committee, whose determinations with regard thereto shall be
final and binding upon all parties thereto.
SECTION 5
REORGANIZATION OR LIQUIDATION
In the event that the Company is merged or consolidated with another corporation
and the Company is not the surviving corporation, or if all or substantially all
of the assets or more than 20 percent of the outstanding voting stock of the
Company is acquired by any other corporation, business entity or person, or in
case of a reorganization (other than a reorganization under the United States
Bankruptcy Code) or liquidation of the Company, and if the provisions of Section
8 hereof do not apply, the Committee, or the board of directors of any
corporation assuming the obligations of the Company, shall, as to the Plan and
outstanding Options either (i) make appropriate provision for the adoption and
continuation of the Plan by the acquiring or successor corporation and for the
protection of any such outstanding Options by the substitution on an equitable
basis of appropriate stock of the Company or of the merged, consolidated or
otherwise reorganized corporation which will be issuable with respect to the
Stock, provided that no additional benefits shall be conferred upon the
Participants holding such Options as a result of such substitution, and the
excess of the aggregate Fair Market Value of the shares subject to such Options
immediately after such substitution over the Option Price thereof is not more
than the excess of the aggregate Fair Market Value of the shares subject to such
Options immediately before such substitution over the Option Price thereof, or
(ii) upon written notice to the Participants, provide that all unexercised
Options shall be exercised
6
<PAGE> 10
within a specified number of days of the date of such notice or such Options
will be terminated. In the latter event, the Committee shall accelerate the
exercise dates of outstanding Options so that all Options become fully vested
prior to any such event.
SECTION 6
PARTICIPATION
Participants in the Plan receiving First Category Options may be any Eligible
Employee in the discretion of the Committee. Participants in the Plan receiving
Second Category Options shall be those Eligible Employees who, in the judgment
of the Committee, are performing, or during the term of their incentive
arrangement are expected to perform, important services in the management,
operation and development of the Company or an Affiliated Corporation, and
contribute, or are expected to contribute, to the achievement of the Company's
long-term corporate economic objectives. Upon determination by the Committee
that an Option is to be granted to a Participant, written notice shall be given
to such person, specifying the terms, conditions, rights and duties related
thereto. Options shall be deemed to be granted as of the date specified in the
granting resolution of the Committee, which date also shall be the date of the
Option Agreement with the Participant. In the event of any inconsistency between
the provisions of the Plan and any Option Agreement, the provisions of the Plan
shall govern.
SECTION 7
OPTIONS
7.1 Grants. Each Participant may be granted only one Option under this Plan.
Each Option granted by the Committee shall be evidenced by a written agreement
entered into by the Company and the Participant to whom the Option is granted
(the "Option Agreement"), which shall contain the terms and conditions set out
in this Section 7, as well as such other terms and conditions, not inconsistent
therewith, as the Committee may consider appropriate.
7.2 Option Agreements. There shall be two categories of Options issued under
this Plan as follows:
(a) The first category of Option ("First Category") shall have a
total of two hundred (200) shares of Stock issuable to a Participant upon
exercise; and
7
<PAGE> 11
(b) The second category of Option ("Second Category") shall vary
by Participant and, as to any Participant, shall have a total number of shares
of Stock issuable upon exercise which equals the sum of the Initial Amount and
the Final Amount.
For purposes of this Plan, the term "Initial Amount" means such number of shares
(rounded to the nearest full share) which equals not more than one (1) times
such Participant's Base Salary divided by the difference between $50 and the
Option Price. The term "Final Amount" means such number of shares (rounded to
the nearest full share) which equals not more than one and one-half (1.5) times
such Participant's Base Salary divided by the difference between $60 and the
Option Price.
7.3 Common Terms. Subject to Section 7.2 and Section 7.5, each Option Agreement
entered into by the Company and the Participants shall contain at least the
following terms and conditions:
(a) Number of Shares. Each Option Agreement shall set forth a
specified number of shares of Stock issuable upon exercise of the Option, as
determined by the Committee pursuant to Section 7.2 hereof.
(b) Price. The exercise price (the "Option Price") at which each
share of Stock covered by an Option may be purchased shall be the price
specified in the granting resolution of the Committee.
(c) Duration. Each Option Agreement shall state the period of
time, determined by the Committee, within which the Option may be exercised (the
"Option Period"), which in no event may be greater than ten (10) years.
(d) Vesting. Subject to the provisions of Section 7.3(e) and
Section 7.3(f), each Option shall become exercisable in full on the date
occurring nine years and six months from the date of grant or such earlier date
as the Committee may determine.
(e) Acceleration. Each Option may become exercisable earlier, in
increments, upon the occurrence of a Price Threshold Date as follows:
(i) If the Initial Price Threshold Date occurs prior to
January 1, 2000:
(A) One-half of the shares of Stock subject to
the First Category Options become immediately exercisable as of such date, and
(B) The Initial Amount of shares of Stock
subject to each Second Category Option become immediately exercisable as of such
date.
8
<PAGE> 12
(ii) If the Final Price Threshold Date occurs prior to
January 1, 2000, the remaining portion of shares of Stock under each category of
Option becomes immediately exercisable as of such date.
(f) Termination of Employment, Death, Disability, etc. Subject to
the following provisions, each Option Agreement shall state that each Option and
the right to acquire stock thereunder shall be subject to the condition that the
Participant has remained a full-time employee of the Company from the date of
grant of an Option until the applicable exercise date:
(i) If the employment of the Participant by the Company is
terminated (which for this purpose means that the Participant is no longer
employed by the Company or by an Affiliated Corporation) within the Option
Period for any reason other than cause, the Participant's retirement on or after
attaining age 60, or the Participant's disability or death, the Option may be
exercised by the Participant within three months following the date of such
termination (provided that such exercise must occur within the Option Period),
but not thereafter. In any such case, the Option may be exercised only as to the
shares as to which the Option had become exercisable on or before the date of
termination of the Participant's employment. If the employment of the
Participant is terminated within the Option Period for cause, as determined by
the Company, any portion of any Option not previously exercised in accordance
with this Section 7 shall thereafter be void for all purposes. As used in this
subsection, "cause" shall mean a gross violation, as determined by the Company,
of the Company's established policies and procedures, provided that the effect
of this subsection 7.3(f) shall be limited to determining the consequences of a
termination and that nothing in this subsection shall restrict or otherwise
interfere with the Company's discretion with respect to the termination of any
employee.
(ii) If the Participant retires from employment by the Company
on or after attaining age 60, the Option may be exercised by the Participant
within 36 months following his or her retirement (provided that such exercise
must occur within the Option Period), but not thereafter. In the event of the
Participant's death during such 36-month period, each Option may be exercised by
those entitled to do so in the manner referred to in (iv) below. In any such
case:
(A) If the Participant is holding a First
Category Option and the Participant's retirement occurs on or after January 1,
2000, the Option may be exercised as to all shares of Stock which are subject to
the Option, including an increment of the Option, if any, which had not
otherwise become exercisable on or before the date of the Participant's
retirement, or
9
<PAGE> 13
(B) If the Participant is holding a First
Category Option and the Participant's retirement occurs prior to January 1,
2000, the Option may be exercised only as to the shares of Stock as to which the
Option had become exercisable on or before the date of the Participant's
retirement, or
(C) If the Participant is holding a Second
Category Option, the Option may be exercised only as to the shares of Stock as
to which the Option had become exercisable on or before the date of the
Participant's retirement.
(iii) If the Participant becomes disabled (as determined
pursuant to the Company's Long-Term Disability Plan or any successor plan),
during the Option Period while still employed, or within the 36-month period
referred to in (ii) above, the Option may be exercised by the Participant or by
his or her guardian or legal representative, within twelve months following the
Participant's disability, or within the 36-month period referred to in (ii) if
applicable and if longer (provided that such exercise must occur within the
Option Period), but not thereafter. In the event of the Participant's death
during such twelve-month period, each Option may be exercised by those entitled
to do so in the manner referred to in (iv) below. In any such case, the Option
may be exercised only as to the shares of Stock as to which the Option had
become exercisable on or before the date of the Participant's disability.
(iv) In the event of the Participant's death while still
employed by the Company, each Option of the deceased Participant may be
exercised by those entitled to do so under the Participant's will or under the
laws of descent and distribution within twelve months following the
Participant's death (provided that in any event such exercise must occur within
the Option Period), but not thereafter, as to all shares of Stock which are
subject to such Option, including any increment of the Option, if any, which has
not yet become exercisable at the time of the Participant's death. In the event
of the Participant's death within the 36-month period referred to in (ii) above
or within the twelve-month period referred to (iii) above, each Option of the
deceased Participant that is exercisable at the time of death may be exercised
by those entitled to do so under the Participant's will or under the laws of
descent and distribution within twelve months following the Participant's death
or within the 36-month period referred to in (ii), if applicable and if longer
(provided that in any event such exercise must occur within the Option Period).
(g) Transferability. Each Option Agreement shall state that the
Option granted thereunder is not transferable by the Participant, except by will
or pursuant to the laws of descent and distribution, and that such Option is
exercisable during the Participant's
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lifetime only by him or her, or in the event of the Participant's disability or
incapacity, by his or her guardian or legal representative.
(h) Exercise, Payments, etc.
(i) Each Option Agreement shall provide that the method for
exercising the Option granted therein shall be by delivery to the Office of the
Secretary of the Company of written notice specifying the number of shares of
Stock with respect to which such Option is exercised and payment of the Option
Price. Such notice shall be in a form satisfactory to the Committee and shall
specify the particular Option (or portion thereof) which is being exercised and
the number of shares of Stock with respect to which the Option is being
exercised. The exercise of the Option shall be deemed effective on the date such
notice is received by the Office of the Secretary and payment is made to the
Company of the Option Price (the "Exercise Date"). If requested by the Company,
such notice shall contain the Participant's representation that he or she is
purchasing the Stock for investment purposes only and his or her agreement not
to sell or otherwise distribute any Stock so purchased in any manner that is in
violation of the Securities Act of 1933, as amended, or any applicable state
law. Such restriction, or notice thereof, shall be placed on the certificates
representing the Stock so purchased. The purchase of such Stock shall take place
at the principal offices of the Company upon delivery of such notice, at which
time the Option Price shall be paid in full by any of the methods or any
combination of the methods set forth in (ii) below. The shares of Stock to which
the Participant is entitled as a result of the exercise of the Option shall be
issued by the Company and (A) delivered by electronic means to an account
designated by the Participant, or (B) delivered to the Participant in the form
of a properly executed certificate or certificates representing such shares of
Stock. If certificates representing the Stock are used to pay all or part of the
Option Price, separate certificates for the same number of shares of Stock shall
be issued by the Company and delivered to the Participant representing each
certificate used to pay the Option Price, and an additional certificate shall be
issued by the Company and delivered to the Participant representing the
additional shares of Stock, in excess of the Option Price, to which the
Participant is entitled as a result of the exercise of the Option.
(ii) the Option Price shall be paid by any of the
following methods or any combination of the following methods:
(A) in cash, including the wire transfer of
funds to one of the Company's bank accounts located in the United States, with
such bank account to be designated from time to time by the Company;
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(B) by personal, certified or cashier's check
payable to the order of the Company;
(C) by delivery to the Company of certificates
representing a number of shares of Stock then owned by the Participant, the Fair
Market Value of which equals the Option Price of the Stock purchased pursuant to
the Option, properly endorsed for transfer to the Company; provided, however,
that shares of Stock used for this purpose must have been held by the
Participant for such minimum period of time as may be established from time to
time by the Committee; for purposes of this Plan, the Fair Market Value of any
shares of Stock delivered in payment of the Option Price upon exercise of the
Option shall be the Fair Market Value as of the Exercise Date; or
(D) by delivery to the Company of a properly
executed notice of exercise together with irrevocable instructions to a broker
to promptly deliver to the Company, by wire transfer or check as noted in (A)
and (B) above, the amount of the proceeds of the sale of all or a portion of the
Stock or of a loan from the broker to the Participant necessary to pay the
Option Price.
7.4 Tax Withholding. Each Option Agreement shall provide that, upon exercise of
the Option, the Participant shall make appropriate arrangements with the Company
to provide for the amount of additional tax withholding required by Sections
3102 and 3402 or any successor section(s) of the Internal Revenue Code and
applicable state income tax laws.
7.5 Subsequent Option Agreements. Following the initial grant of Options in
1996, additional Participants may be designated by the Committee for grant of
Options substantially in accordance with the above terms and conditions, subject
to such changes and modifications to reflect the circumstances of any subsequent
grant as the Committee, in its discretion, deems appropriate.
7.6 Stockholder Privileges. No Participant shall have any rights as a
stockholder with respect to any shares of Stock covered by an Option until the
Participant becomes the holder of record of such Stock. No adjustments shall be
made for dividends or other distributions or other rights as to which there is a
record date preceding the date on which such Participant becomes the holder of
record of such Stock.
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SECTION 8
CHANGE IN CONTROL
8.1 In General. In the event of a change in control of the Company as defined in
Section 8.3 hereof, then the Committee may, in its sole discretion, without
obtaining stockholder approval, to the extent permitted in Section 12 hereof,
take any or all of the following actions:
(a) accelerate the dates on which any outstanding Options become
exercisable or make all such Options fully vested and exercisable;
(b) grant a cash bonus award to any Participant in an amount
necessary to pay the Option Price of all or any portion of the Options then held
by such Participant;
(c) pay cash to any or all Participants in exchange for the
cancellation of their outstanding Options in an amount equal to the difference
between the Option Price of such Options and the greater of the tender offer
price for the underlying Stock or the Fair Market Value of the Stock on the date
of the cancellation of the Options; and
(d) make any other adjustments to the outstanding Options.
8.2 Limitation on Payments. If the provisions of this Section 8 would result in
the receipt by any Participant of a payment within the meaning of Section 280G
or any successor section(s) of the Internal Revenue Code, and the regulations
promulgated thereunder, and if the receipt of such payment by any Participant
would, in the opinion of independent tax counsel of recognized standing selected
by the Company, result in the payment by such Participant of any excise tax
provided for in Sections 280G and 4999 or any successor section(s) of the
Internal Revenue Code, then the amount of such payment shall be reduced to the
extent required, in the opinion of independent tax counsel, to prevent the
imposition of such excise tax; provided, however, that the Committee, in its
sole discretion, may authorize the payment of all or any portion of the amount
of such reduction to the Participant.
8.3 Definition. For purposes of the Plan, a "change in control" shall mean any
of the events specified in the Company's Income Continuance Plan or any
successor plan which constitute a change in control within the meaning of such
plan.
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SECTION 9
RIGHTS OF EMPLOYEES, PARTICIPANTS
9.1 Employment. Nothing contained in the Plan or in any Option granted under the
Plan shall confer upon any Participant any right with respect to the
continuation of his or her employment by the Company or any Affiliated
Corporation, or interfere in any way with the right of the Company or any
Affiliated Corporation, subject to the terms of any separate employment
agreement to the contrary, at any time to terminate such employment or to
increase or decrease the level of the Participant's compensation from the level
in existence at the time of the grant of an Option. Whether an authorized leave
of absence, or absence in military or government service, shall constitute a
termination of employment shall be determined by the Committee at the time.
9.2 Nontransferability. No right or interest of any Participant in an Option
granted pursuant to the Plan shall be assignable or transferable during the
lifetime of the Participant, either voluntarily or involuntarily, or subjected
to any lien, directly or indirectly, by operation of law, or otherwise,
including execution, levy, garnishment, attachment, pledge or bankruptcy. In the
event of a Participant's death, a Participant's rights and interests in Options
shall, to the extent provided in Section 7 hereof, be transferable by
testamentary will or the laws of descent and distribution, and payment of any
amounts due under the Plan shall be made to, and exercise of any Options may be
made by, the Participant's legal representatives, heirs or legatees. If in the
opinion of the Committee a person entitled to payments or to exercise rights
with respect to the Plan is disabled from caring for his or her affairs because
of mental condition, physical condition or age, payment due such person may be
made to, and such rights shall be exercised by, such person's guardian,
conservator or other legal personal representative upon furnishing the Committee
with evidence satisfactory to the Committee of such status.
SECTION 10
GENERAL RESTRICTIONS
10.1 Investment Representations. The Company may require a Participant, as a
condition of exercising an Option, to give written assurances in substance and
form satisfactory to the Company and its counsel to the effect that such person
is acquiring the Stock subject to the Option for his own account for investment
and not with any present intention of selling or otherwise distributing the
same, and to such other effects as the Company deems necessary or appropriate in
order to comply with federal and applicable state securities laws.
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<PAGE> 18
10.2 Compliance with Securities Laws. Each Option shall be subject to the
requirement that, if at any time counsel to the Company shall determine that the
listing, registration or qualification of the shares of Stock subject to such
Option upon any securities exchange or under any state or federal law, or the
consent or approval of any governmental or regulatory body, is necessary as a
condition of, or in connection with, the issuance or purchase of shares of Stock
thereunder, such Option may not be accepted or exercised in whole or in part
unless such listing, registration, qualification, consent or approval shall have
been effected or obtained on conditions acceptable to the Committee. Nothing
herein shall be deemed to require the Company to apply for or to obtain such
listing, registration, qualification, consent or approval.
SECTION 11
OTHER EMPLOYEE BENEFITS
The amount of any compensation deemed to be received by a Participant as a
result of the exercise of an Option shall not constitute "earnings" with respect
to which any other employee benefits of such Participant are determined,
including without limitation benefits under any pension, profit sharing, life
insurance or salary continuation plan.
SECTION 12
PLAN AMENDMENT, MODIFICATION AND TERMINATION
The Board may at any time terminate, and from time to time may amend or modify
the Plan provided, however, that no amendment or modification may become
effective without approval of the amendment or modification by the Company's
stockholders if stockholder approval is required to enable the Plan to satisfy
any applicable statutory or regulatory requirements, or if the Company, on the
advice of counsel, determines that stockholder approval is otherwise necessary.
No amendment, modification or termination of the Plan shall in any manner
adversely affect any Option theretofore granted under the Plan, without the
consent of the Participant holding such Option.
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SECTION 13
WITHHOLDING
13.1 Withholding Requirement. The Company's obligations to deliver shares of
Stock upon the exercise of an Option shall be subject to the Participant's
satisfaction of all applicable federal, state and local income and other tax
withholding requirements.
13.2 Withholding with Stock. At the time the Committee grants an Option, it may,
in its sole discretion, grant the Participant an election to pay all such
amounts of tax withholding, or any part thereof, by the transfer to the Company,
or to have the Company withhold from shares of Stock otherwise issuable to the
Participant upon the exercise of an Option, shares of Stock having a value equal
to the amount required to be withheld or such lesser amount as may be elected by
the Participant. All such elections shall be subject to the approval or
disapproval of the Committee. The value of shares of Stock to be withheld shall
be based on the Fair Market Value of the Stock on the Exercise Date. Any such
elections by Participants to have shares of Stock withheld for this purpose will
be subject to the following restrictions:
(a) All elections shall be made on or prior to the Exercise Date.
(b) All elections shall be irrevocable.
(c) If, subsequent to the date of grant, the Participant becomes
an officer or director of the Company within the meaning of Section 16 or any
successor section(s) ("Section 16") of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the Participant must satisfy the requirements of such
Section 16 and any applicable rules and regulations thereunder with respect to
the use of Stock to satisfy such tax withholding obligation.
SECTION 14
REQUIREMENTS OF LAW
14.1 Requirements of Law. The issuance of Stock and the payment of cash pursuant
to the Plan shall be subject to all applicable laws, rules and regulations.
14.2 Federal Securities Laws Requirements. If, subsequent to the date of grant,
a Participant becomes an officer or director of the Company within the meaning
of Section 16, Options granted hereunder shall be subject to all conditions
required under Rule 16b-
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3, or any successor rule(s) promulgated under the 1934 Act, to qualify the
Option for any exemptions from the provisions of Section 16 available under such
Rule. Such conditions are hereby incorporated herein by reference and shall be
set forth in the agreement with the Participant which describes the Option.
14.3 Governing Law. The Plan and all Option Agreements hereunder shall be
construed in accordance with and governed by the laws of the State of Texas.
SECTION 15
DURATION OF THE PLAN
The Plan shall terminate at such time as may be determined by the Board, and no
Option shall be granted after such termination. If not sooner terminated under
the preceding sentence, the Plan shall fully cease and expire at midnight on
December 31, 1998. Options outstanding at the time of the Plan termination shall
continue to be exercisable in accordance with the Option Agreement pertaining to
such Option.
Dated: September 23, 1999, effective as of October 31, 1996
ATTEST: APACHE CORPORATION
/s/ Cheri L. Peper By: /s/ Daniel L. Schaeffer
- ----------------------------------- ------------------------------
Cheri L. Peper Daniel L. Schaeffer
Corporate Secretary Vice President
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Exhibit 99.1
[Apache Corporation Letterhead]
CONTACTS:
(MEDIA): TONY LENTINI (713/296-6227)
BILL MINTZ (713/296-7276)
(INVESTOR): ROBERT DYE (713/296-6662)
(WEB SITE): www.apachecorp.com
FOR IMMEDIATE RELEASE
APACHE COMPLETES ACQUISITION OF SHELL CANADA ASSETS
WITH 87.5 MMBOE PROVED RESERVES FOR US$517 MILLION
Houston, Dec. 1, 1999 -- Apache Corporation (NYSE: APA) today completed
its previously announced acquisition of producing properties and other assets in
the provinces of Alberta, British Columbia and Saskatchewan, Canada, with proved
reserves of 87.5 million barrels of oil equivalent (MMboe) from Shell Canada
Limited for C$761 million after adjustments (US$517 million at current exchange
rates).
The purchase, through Apache's wholly-owned subsidiary Apache Canada
Ltd., also includes 294,294 net acres of undeveloped leaseholdings, 100 percent
interest in a gas processing plant with a potential capacity of 160 million
cubic feet (MMcf) per day, as well as one of the largest seismic data banks in
Canada with 52,700 miles of 2-D seismic data and 884 square miles of 3-D
seismic. The transaction was effective Nov. 1.
Apache funded the purchase from cash on hand and by issuing commercial
paper, bringing the company's debt-to-capitalization ratio to an estimated 42.5
percent.
Net production from the properties in October averaged 12,528 barrels
per day of crude oil and natural gas liquids and 64.8 MMcf per day of natural
gas.
Apache Corporation is an independent oil and gas company with
operations in North America, Egypt, Western Australia, Poland and the People's
Republic of China. Its common stock is traded on the New York and Chicago stock
exchanges.
-end-
<PAGE> 1
Exhibit 99.2
[Apache Corporation Letterhead]
CONTACTS:
(MEDIA): TONY LENTINI (713/296-6227)
BILL MINTZ (713/296-7276)
(INVESTOR): ROBERT DYE (713/296-6662)
(WEB SITE): www.apachecorp.com
FOR RELEASE AT 7:30 A.M. CENTRAL TIME
APACHE FINANCE CANADA SELLS $300 MILLION OF 30-YEAR NOTES
YIELDING 7.839 PERCENT
Houston (Dec. 9, 1999) - Apache Corporation (NYSE: APA) said today that
its Apache Finance Canada Corp. unit sold $300 million of 7.75 percent coupon
notes which will mature Dec. 15, 2029. The bonds were priced to yield 7.839
percent.
Interest is payable semiannually on each June 15 and Dec. 15. The first
coupon is payable June 15, 2000. The notes are unconditionally guaranteed by
Apache Corporation.
Proceeds of the issue will be used to repay commercial paper issued to
finance Apache's recent acquisition of producing properties and other assets in
Canada from Shell Canada Limited. Goldman, Sachs & Co. was lead manager for the
sale. The offering is expected to close Dec. 13, 1999.
Apache Corporation is an independent oil and gas company with
operations in North America, Egypt, Western Australia, Poland and People's
Republic of China. Its common stock is sold on the New York and Chicago stock
exchanges.
-end-
